case_text: The only other relevant authority appears to be Australian Wool Innovation Ltd v Newkirk (No 2) [2005] FCA 1307. That case involved an attempt to strike out a statement of claim in which reliance was placed on s 45DB(1) of the Trade Practices Act , among other causes of action. Hely J struck out those parts of the statement of claim based on s 45DB. The relevant passages in his Honour's judgment are found at [56]-[65] and cast light on the question of interpretation that arises in the present case. It is not clear from the reasons for judgment what trade or commerce the applicants in that case carried on. Reference to an earlier judgment in the same proceeding, Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 at [1] and [3], reveals those applicants to have been a corporation claiming to represent some 30,000 Australian woolgrowers, and persons or companies who were Australian woolgrowers represented by that corporation. In Australian Wool Innovation (No 2) at [57], Hely J pointed out that about 95 per cent of the annual production of Australian wool is exported to places outside Australia. The respondents in that case were alleged to be conducting a campaign against a practice known as mulesing, a practice involving the surgical removal of folds of skin in the breech of a ewe as a measure against flystrike. At [57], his Honour described this as a campaign that could be seen as conduct designed to hinder or prevent the export of Australian wool. His Honour said: On a broad reading of s 45DB , conduct which prevents an export sale of wool is at least arguably conduct which prevents the putative vendor from engaging in trade or commerce involving the movement of goods between Australia and places outside Australia because, as a result of the frustration of the intended sale, there will be no movement of those goods overseas.


case_outcome: cited

case_text: What s 45DB(1) of the Trade Practices Act requires is that trade or commerce be prevented or substantially hindered. It appears to be accepted generally that "hindering" in this context must be given a broad meaning, so that it conveys in any way affecting to an appreciable extent the ease of the usual way of performing the activity concerned. The authorities are referred to in Australian Builders' Labourers' Federated Union of Workers − Western Australian Branch v J-Corp Pty Limited (1993) 42 FCR 452 at 459-460 per Lockhart and Gummow JJ, especially the passage quoted there from the judgment of Mason CJ in Devenish v Jewel Food Stores Pty Ltd [1991] HCA 7 ; (1991) 172 CLR 32 at 45-46. There is no suggestion in the present case that the ease with which Rural Export ensured the supply of feed to the feedlot was affected in a negative way to any extent. It simply had to do more of what it would normally have been required to do, during a longer period than it would have been required to do it. It is possible that Rural Export's capacity to do other things in conducting its trade or commerce might have been affected by the need to spend extra time ordering and directing the delivery of extra feed. There is no evidence to this effect, however. It is said that Rural Export had to spend more money on feed than it otherwise would have in respect of this consignment of sheep. On that basis, it appears to me that the only way in which it could be said that Rural Export's trade or commerce has been hindered would be if it were to be accepted that being obliged to spend more money and to carry out the actions necessary to order and procure the delivery of further feed, in order for Rural Export to discharge its responsibilities with respect to the particular consignment of sheep, amounts to having its trade or commerce hindered. This may require an expansion of the concept of hindering beyond that with which the authorities seem to deal. As the authorities stand, I am unable to say that the trade or commerce of Rural Export was hindered, whether substantially or otherwise.


case_text: Mr Hahnheuser was the principal actor in the three episodes that made up the conduct. He was the one mixing the ham and water in the bathroom, putting the mixture into the water container, distributing the ham and tainted water in the feedlot and giving the interviews. His name appears on the Press Alert. He did not act alone, however. At least one other person was present in the bathroom at the motel, to operate the video camera. At least two other persons were present with Mr Hahnheuser in the feedlot, one operating the video camera and one shown in the video walking with Mr Hahnheuser, wearing a tee-shirt similar to that worn by Mr Hahnheuser. In some of the television interviews, there are two people shown standing behind Mr Hahnheuser, holding up signs shaped like animals, with slogans written on them. The person whose name was given as Diana Simpson made the booking for the motel room used, and was present at the time. The person whose name was given as Mark Pearson paid for the room. The name Mark Pearson also appears on the Press Alert. In the course of his interviews, Mr Hahnheuser made admissions that there were other persons with him in the feedlot. He described what had happened as an operation that was carefully designed and planned, involving detailed investigations in advance and reconnaissance over a number of days, and as being "highly organised". It is clear that the other persons involved were willing participants; there is nothing to suggest that they were coerced, so as to prevent them from being taken to have acted in concert with Mr Hahnheuser. See Epitoma Pty Ltd v Australasian Meat Industry Employees Union (1984) 3 FCR 55 at 61-63. The activities of Mr Hahnheuser and the other persons with him had the element of contemporaneousness sometimes said to be necessary for a finding of conduct in concert to be made. See Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1985) 9 FCR 425 at 433 per Keely and Pincus JJ.


case_outcome: discussed

case_text: In this respect, there is some authority, which may shed light on the meaning of s 45DB(1). In F H Transport Pty Ltd v Transport Workers' Union of Australia (1997) 75 FCR 480, Drummond J considered whether to grant an interlocutory injunction to restrain industrial action interfering with the delivery of goods to, and the collecting of goods from, terminals operated by several transport companies. The interlocutory injunction was sought on a number of grounds, including alleged contravention of s 45DB(1) of the Trade Practices Act . At 490, his Honour suggested, in a single sentence, that the existence of evidence that part of one transport company's activities involve the movement of containers committed to international trade showed that there was a strong arguable case of infringement of s 45DB. His Honour did not discuss specifically whether the trade or commerce of a transport company, being the carriage of containers by road, was trade or commerce "involving" the movement of goods between Australia and a place outside Australia. He appears to have assumed that this was so. In Farah (Australia) Pty Ltd v National Union of Workers NSW Branch (No 1) (1997) ATPR 41-583, Sackville J rejected a claim for an interlocutory injunction, which was based on s 45D(1) and s 45DB(1) of the Trade Practices Act . In that case, a picket line was preventing the delivery of goods to premises in Sydney, occupied by an importer and wholesale distributor of clothing products, some of which were manufactured in Fiji. At 44,066-44,067, his Honour expressed a tentative view that there was not a serious issue to be tried in relation to s 45DB(1) , because there was little or nothing in the evidence suggesting that any of those involved in the picket had in mind the purpose of preventing or substantially hindering the Fijian supplier from engaging in trade or commerce involving the movement of goods between Australia and places outside Australia. His Honour did express the view that the evidentiary position may change on a final hearing. It therefore appears that his Honour took the view that it was at least possible that the Fijian manufacturer and exporter to Australia was engaged in trade or commerce involving the movement of goods from a place outside Australia to Australia. 55 I respectfully adopt Hely J's reasoning in relation to s 45DB(1). His Honour's judgment was a considered one. To the extent to which Hely J's view is inconsistent with the views of Drummond J in F H Transport and Sackville J in Farah , Hely J's view is to be preferred. There is nothing in the reasons of Drummond J and Sackville J in those two cases to show that their Honours even considered the possibility that the words "involving the movement of goods" should be regarded as narrowing the operation of s 45DB(1), or that either of them considered the parliamentary materials.


case_title: F H Transport Pty Ltd v Transport Workers' Union of Australia (1997) 75 FCR 480


case_title: Hutchins v Maughan [1947] VLR 131

case_text: The amended statement of claim contained an alternative allegation of trespass to Samex's sheep, said to have been constituted by entering the feedlot and placing pig meat in the feeding and drinking systems. Counsel for the applicants made no submission on this trespass claim. This is probably because trespass to goods is limited to direct and immediate interference with possession of a chattel. Although owned by Samex, the sheep concerned were in Mr Peddie's possession at the time when Mr Hahnheuser engaged in his conduct. Further, there is no evidence that Mr Hahnheuser interfered directly with the sheep. There is an obvious distinction between direct interference of the kind required to constitute a trespass and leaving something that sheep might or might not choose to eat in a place where they might or might not choose to go for the purpose of eating. It has been held that laying baits for dogs, which were subsequently taken by the dogs of a passing drover of sheep, did not amount to trespass to the dogs. See Hutchins v Maughan [1947] VLR 131. Indeed, the evidence, so far as it goes was that there was untouched matter found in at least one of the feeding troughs, which the sheep had apparently chosen not to eat. Whether any sheep actually ingested any adulterated feed must remain a matter of speculation. 73 For reasons I have already stated in [3], there must be an order dismissing the application as against the second respondent, with no order as to costs. That order is made by consent of the applicants and the second respondent. As a result of the conclusions I have reached, there must also be an order dismissing the application as against Mr Hahnheuser. In my view, there should be no order as to costs. In particular, costs should not follow the event because Mr Hahnheuser received the benefit of pro bono legal representation (not organised through the legal referral scheme operated by the Court under O 80 of the Federal Court Rules ) until he declined to avail himself of it any further. It is not even altogether clear that the Court would have any power to award costs in his favour in those circumstances. 74 I should also say that, if I had been satisfied that there had been a contravention of s 45DB(1) of the Trade Practices Act , I should certainly not have been prepared to make a declaration, or to grant an injunction, in any of the forms specified in either of the application or the applicants' outline of argument. All of the suggested forms of both orders are inadequate to specify with the precision necessary the conduct in which Mr Hahnheuser has engaged or the conduct he would be required to refrain from engaging in. It is unnecessary to say more than that.


case_text: The view expressed by Hely J, that s 45DB(1) does not apply to acts anterior to the movement of goods from Australia to a place outside Australia, is consistent with dictionary definitions of the word "involving" and authorities dealing with the use of that word in other statutory contexts. The Macquarie Dictionary (revised edition) defines "involve" relevantly as follows: "to include as a necessary circumstance, condition, or consequence; imply; entail" and "to include, contain or comprehend within itself or its scope." The Oxford English Dictionary (2nd edition) defines "involve" relevantly as: "to enfold, envelop, entangle, include"; "to include; to contain, imply"; and "to contain implicitly; to include as a necessary (and therefore unexpressed) feature, circumstance, antecedent condition, or consequence; to imply, entail." In Rimanic v Business Licensing Authority [2001] VSC 400 , Habersberger J had to consider whether a conviction for making a threat to kill was a conviction "of an offence involving violence", disqualifying a person from obtaining a licence as a motor car trader. At [19], his Honour referred to dictionary definitions. At [45]-[46], his Honour referred to Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659, in which the question was whether certain statutory offences were offences "involving fraud or dishonesty". In Pollard , the argument that such an offence was limited to an offence "of" fraud or dishonesty was rejected, on the basis that the substitution of the word "of" for the word "involving" would fail to give the relevant provision its ordinary meaning. At [48], Habersberger J expressed the view that an offence involving violence is something less than an offence of violence, relying on Pollard . Relying on R v McCrossen [1991] Tas R 1, his Honour also expressed the view that an offence involving violence is also something less than an offence one of the essential ingredients of which is violence. As one of the relevant meanings of the word "involving" was "implying", and a threat to kill implied violence, a threat to kill was an offence involving violence.


case_outcome: followed

case_text: In Queensland v Murphy [1990] HCA 42 ; (1990) 95 ALR 493 at 498, the High Court commented on the ordinary meaning of the term "environment" as follows: In its ordinary meaning "environment" signifies that which surrounds and has long been understood to include "the conditions under which any person or thing lives": Oxford English Dictionary, 2nd ed (1989). The latter usage dates from 1827 when Thomas Carlyle used the word to mean "the aggregate of external circumstances, conditions, and things that affect the existence and development of an individual, organism, or group". See Hendrickson, The Encyclopedia of Word and Phrase Origins, (1987). 60 There can be little doubt that "environmental protection" means the protection of the environment. There is nothing in s 45DD(3) of the Trade Practices Act to indicate that the word "environmental" is used in a more narrow sense than its ordinary meaning. Indeed, the legislative history of the Act by which s 45DD was inserted into the Trade Practices Act (the same Act as that which inserted s 45DB) suggests to the contrary. Like s 45DB(1) in its present form, s 45DD(3) was the subject of an amendment moved in the Senate jointly by the Government and the Australian Democrats. One of the joint movers, Senator Murray, told the Senate: In drafting exclusions, the Democrats have opted not to define what is meant by environmental protection or consumer protection. It is our clear intention in moving these amendments that the clauses be interpreted broadly. (Australia, Senate, Debates , (1996) Vol S180, p 5608). 61 Senator Murray then referred to the High Court's application of the natural and ordinary meaning of "environment" in Murphy , and went on to state that "environmental protection" in the proposed legislation would: extend to environmental issues affecting indigenous people, such as the protection of sacred sites. It would extend to urban environment issues and pollution issues. It would extend to environment issues such as preservation of historic buildings. It should and will be interpreted very broadly. It would include boycotts in relation to nuclear issues and the impact they could have on the environment. It would extend to the protection of living things in other countries, such as South-East Asian rainforests. (Australia, Senate, Debates , (1996) Vol S180, p 5608-5609). 62 In the course of debate on the proposed amendment, a comment was made that some of the proposed provisions were "blunt instruments". Senator Campbell, representing the Government, responded that: this chamber should be informed that these so-called 'blunt instruments' are available only in respect to illegitimate, industrial action; that is action unrelated to workers' pay and conditions of employment and which wreaks damage on innocent third and fourth parties . (Australia, Senate, Debates , (1996) Vol S180, p 5607). 63 For reasons similar to those I have given in [53]-[54], these contributions to the debate in the Senate can be relied upon to confirm the use of the phrase "environmental protection" in s 45DD(3) in its ordinary meaning. Counsel for the applicants referred to statutory definitions of the word "environment" in other legislation, in an attempt to suggest that the phrase "environmental protection" should be construed to mean something less than it does in its ordinary meaning. He referred to s 4 of the Environment Protection Act 1970 (Vic) and to s 15 of the Natural Heritage Trust of Australia Act 1997 (Cth). It is unnecessary to refer to those definitions in detail. Both demonstrate a legislative intention to make the provisions of their respective Acts applicable to a narrower concept of the environment than is involved in its ordinary meaning. The absence from the Trade Practices Act of a definition of "environmental protection" is both deliberate (as revealed by the statement of Senator Murray, to which I have referred in [60]) and significant in demonstrating an intention that the phrase should be used in its ordinary sense.


case_title: R v McCrossen [1991] Tas R 1


case_title: Rimanic v Business Licensing Authority [2001] VSC 400


case_text: There is no reason to suppose that the word "purpose" in s 45DB(1) of the Trade Practices Act was intended to have a meaning different from that in which it was used in the (previously enacted) s 45D(1). In Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331 at 348-349, Deane J said: The "purpose" referred to in s. 45D (1) is the operative subjective purpose of those engaging in the relevant conduct in concert... It suffices, for present purposes, to say that, in my view, the question to be answered in determining whether conduct was engaged in for a "purpose" mentioned in s. 45D (1) of the Act is...to be answered not by reference to whether it was appreciated that the relevant conduct might have the specified effect but by reference to the real reason or reasons for, or the real purpose or purposes of, the conduct and to what was in truth the object in the minds of the relevant persons when they engaged in the conduct in concert. 33 This passage embodies the accepted meaning of the word "purpose" for s 45D(1) and, consequently, for s 45DB(1) of the Trade Practices Act . It is therefore necessary to find the existence of a subjective purpose, on the part of each of the persons acting in concert, to prevent or substantially hinder a third person from engaging in the relevant trade or commerce. As to Mr Hahnheuser, it is relatively easy to ascertain a subjective purpose for his engagement in the conduct. What he said in his interviews makes it abundantly clear that he was trying to stop the sheep in the two feedlots from being loaded aboard the Al Shuwaikh for export to the Middle East. 34 It seems relatively clear from the terms of s 45DB(1) of the Trade Practices Act , as Deane J in Tillmanns thought it seemed clear from the terms of s 45D(1) , that the subjective purpose concerned is required to have been held by each of the persons found to be acting in concert before the subsection can be applicable. Apart from the possibility that the name of the operator of the video camera in the motel bathroom or in the feedlot was either Diana Simpson or Mark Pearson, nothing is known about the identity, or even the number, of such person or persons. This makes the determination of a subjective purpose somewhat difficult without resorting to the proposition that, because the combined actions of the persons concerned had the effect of preventing or hindering the transporting to the Middle East as live animals of the particular consignment of sheep, this must have been their purpose. To adopt that reasoning is either to look for an objective purpose, or to do something indistinguishable from looking for an objective purpose. 35 There is a small amount of evidence about what others had in mind. Mr Hahnheuser was not the only one wearing the tee-shirt endorsed with the words "Ban Live Exports". One person held up signs, including one bearing these words, during some of the interviews given by Mr Hahnheuser. Mark Pearson appears to have lent his name to the Press Alert. On the basis of these facts, it is "reasonably open to find" that the representations made by Mr Hahnheuser in his media interviews were made by him in furtherance of a common purpose with the persons with whom he acted in concert. As a result, by s 87(1)(c) of the Evidence Act 1995 (Cth), admissions in those representations are admissible in evidence as admissions of the other persons. In those interviews, Mr Hahnheuser expressed himself to be a spokesperson for others, as well as putting his own views. He made it clear that the adulteration of the sheep feed and the subsequent publicising of it were carried out with the purpose of preventing the export of the consignment of sheep. The evidence therefore supports a finding that Mr Hahnheuser's subjective purpose was also the subjective purpose of the other person or persons with whom Mr Hahnheuser acted in concert. 36 Assuming that at least one person other than Mr Hahnheuser, being a person with whom Mr Hahnheuser acted in concert, shared Mr Hahnheuser's purpose, the next question is as to the effect or likely effect of the conduct. The applicants' submissions pointed to the grounds expressed in the Secretary's direction of 19 November 2003. Certainly, the effect of the conduct concerned was that there was a delay of approximately two weeks in loading the bulk of the consignment of sheep on board the Al Shuwaikh , and 1,694 sheep, which had been kept in paddock X4 of the feedlot were not exported at all. This was the direct result of the Secretary's direction of 19 November 2003, and the variation to that direction on 4 December 2003. In turn, both of the Secretary's directions were brought about by the conduct complained of. In no sense could it be said that the Secretary's actions, first in preventing the grant of an export permit for the whole consignment of sheep, and then in excluding from the lifting of this ban what was thought to be 1,800 sheep, were intervening events in the chain of causation. That chain led directly from the conduct complained of to the delayed, and partially frustrated, export of the consignment of sheep.


case_text: Although Mr Hahnheuser has pleaded reliance on s 45DD(3) of the Trade Practices Act in his amended defence, there is a question whether he is entitled to rely on that provision when he has not participated in the trial of the proceeding. In other words, there is a question as to whether the onus of proof of the elements of s 45DD(3) falls on the person seeking to rely on it, or whether the party contending that a contravention of s 45DB(1) has occurred carries the onus of proving that the elements of s 45DD(3) did not exist. The resolution of this question must lie in ascertaining the intention of the legislature from the provisions of the legislation. Often, the fact that a provision is expressed as an exception to a general provision, whether or not it appears in the same section as the general provision, will be a significant indicator that the onus lies on the party seeking to take advantage of the exception. This is not a conclusive rule. See Vines v Djordjevitch [1955] HCA 19 ; (1955) 91 CLR 512 at 519 and Attorney-General of the Australian Capital Territory On The Relation of Olaseat Pty Ltd v The Australian Capital Territory Minister for the Environment, Land and Planning (1993) 43 FCR 329 at 335-336.


case_text: By force of ss 8 and 10 of the Sea-Carriage Documents Act , Hilditch as a lawful holder of the bill of lading for the Yubase 6 cargo was entitled to assert the rights of the shipper and was subject to its liabilities under the bill of lading. Because Art 2 of the amended Hague Rules makes the carrier subject to the responsibilities and liabilities and grants it the entitlement to the rights of immunities set out in the Rules as part of the contract of carriage of goods by sea incorporated in the bill of lading, the contractual analysis adopted by Devlin J is apposite here: cf: Borealis AB v Stargas Ltd [2001] UKHL 17 ; [2002] 2 AC 205 at 221 [26] 226-227 [31] per Lord Hobhouse of Woodborough. 97 Even if Dorval had been entitled to rely on the immunity in Art 4 r 2(i), because the causes were at least concurrent, it would have remained liable to Hilditch in damages. I am of opinion, however, that the responsibility for the damage, as a matter of commonsense, was substantively greater on the part of Dorval. Its breach of Art 3 r 2 caused the contamination to occur in the first place. The crew of the vessel were in as good a position as Hilditch to see the contamination as the cargo was passing through the ship's manifold. Both the ship's crew and Hilditch's surveyors observed, by sampling at the ship's manifold, the condition of the Yubase oil in its contaminated form. Each had the opportunity to stop the discharge. Neither did. To that extent their contribution to the damage may have been of equal efficacy, but superimposed on that were the obligations of Dorval under Art 3 r 2. There was no explanation, for example, how a proper system could have allowed the cargo to be discharged in the state it did. Dorval called no evidence as to how the cargo could have been discharged by the ship in the circumstances where there was evident contamination when it was passing through the ship's manifold which indicated the source was on the ship. I accept Capt Edgerton's evidence that good tanker practice required the valves in the tanks and connecting pipes which could permit the entry of caustic soda into the conveying lines for the Yubase to be sealed when the Yubase was being discharged. It is likely that there was some failure in that sealing process which led to the damage through contamination of the Yubase prior to its discharge from the Golden Lucy I . That being so, had the ship's crew been applying due care and acting under a proper system, they would not have permitted the discharge of the Yubase 6 to commence or continue without first investigating and stopping the source of the contamination. 98 At the hearing, Dorval only pressed an argument on the exception under Art 4 r 2(i) and did not advance any assertion that it relied on any other exception in that rule referred to in the parties' filed statement of issues.


case_outcome: applied

case_text: The obligation of the carrier under Art 3 r 2 of the amended Hague Rules is a compound one. It requires not only that the carrier exercise reasonable care in the discharge of the goods, but also that it have a sound system for discharging them: Albacora SrL v Westcott & Laurance Line Ltd [1966] 2 Lloyd's Rep 53 at 58 per Lord Reid, 62 per Lord Pierce and 64 per Lord Pearson; Shipping Corporation of India Ltd v Gamlen Chemical Co (A/sia) Pty Ltd [1980] HCA 51 ; (1980) 147 CLR 142 at 163 per Mason and Wilson JJ (with whom Gibbs J and Aickin J agreed at 149, 168); C V Sheepvaartonderneming Ankergracht v Stemcor (A/sia) Pty Ltd (2007) 160 FCR 342 at 370 [88] per Ryan and Dowsett JJ, 405 [229]-[230], 413 [266], [268] per Rares J. Dorval did not lead any evidence of the system, if any, for discharge of a cargo such as Yubase 6 from the Golden Lucy I . 80 Article 3 r 2 is, of course, expressly subject to the provisions of Art 4. The interaction between the two articles was discussed recently by the Full Court in the Ankergracht 160 FCR 342. It is well established that in order for a carrier to rely on the exceptions contained in Art 4 r 2 it must not be negligent or at fault, that is to say in breach of, relevantly, Art 3 r 2: Gamlen Chemical 147 CLR at 152, 154 per Stephen J, 164-165 per Mason and Wilson JJ; Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad [1998] HCA 65 ; (1998) 196 CLR 161 at 193 [85] , 195-196 [91]-[95] per McHugh J, 216-219 [143]-[146] per Kirby J, 243 [228] per Callinan J, see too at 180-181 [49]-[50] per Gaudron, Gummow and Hayne JJ; the Ankergracht 160 FCR at 413-414 [270] per Rares J.


case_text: The usual practice of the Court when awarding interest under s 51A of the Federal Court of Australia Act 1976 (Cth) is to adopt the rates of interest applied by the Supreme Court of the State or Territory in which the Court is sitting. I have previously considered that to be appropriate in a case like the present: Consort Express Lines Pty Ltd v J-Mac Pty Ltd (2006) 232 ALR 341 at 358 [97]. The Supreme Court of New South Wales has a similar power to order interest before judgment under s 100 of the Civil Procedure Act 2005 (NSW). As with s 51A, there is no prescribed rate under s 100 of the Civil Procedure Act . However, Schedule 5 of the Uniform Civil Procedure Rules 2005 (NSW) prescribe as the rate payable on judgment debts 9% per annum for the period between 1 March 2002 and 31 December 2006 and 10% thereafter. That compares to 10.5% which, since 1997, O 35 r 8 of the Federal Court Rules 2001 (Cth) has prescribed as the equivalent rate on judgment debts in this Court. The practice in the Supreme Court of New South Wales has been to use its prescribed rates as a 'broad standard approach' to the award of prejudgment interest: Kalls Enterprises Pty Ltd (In Liq) v Baloglow (No 3) [2007] NSWCA 298 at [22] per Giles, Ipp and Basten JJA.


case_text: Under the law merchant, an endorsement in blank of a negotiable instrument made out to order converts the instrument to a bearer instrument: Sewell v Burdick (1884) 10 App Cas 74 at 83 per Earl of Selborne LC, 92-93 per Lord Blackburn. In Lickbarrow v Mason (1794) 5 TR 683 at 686 the jury found that: '... by the custom of merchants, indorsements of bills of lading in blank, that is to say, by the shipper or shippers with their names only, have been, and are, and may be, filled up by the person or persons to whom they are so delivered or transmitted. ...' That custom has been accepted commercial practice since Lickbarrow v Mason 5 TR 683. The case established that a bill of lading was a transferable document of title: Glyn Mills Currie & Co v The East and West India Dock Company (1882) 7 App Cas 591 at 604 per Lord Blackburn. In Scrutton on Charterparties and Bills of Lading (18 th ed, 1974) at 181 (20 th ed, 1996) at 184 the learned authors observed that a bill of lading endorsed in blank may pass from hand to hand by mere delivery so as to affect the property in the goods: see too Keppel Tatlee Bank Ltd v Bandung Shipping Pte Ltd [2003] 1 Lloyd's Rep 619 at 622 [18]-[20] (CA Singapore). 28 That argument is contrary to long settled principles of the law merchant and the express terms of the bill. In 1882 the great commercial lawyer, Lord Blackburn, said in Glyn Mills 7 App Cas at 604: 'And the very object of making the bill of lading in parts would be baffled unless the delivery of one part of the bill of lading, duly assigned, had the same effect as the delivery of all the parts would have had.' 29 His Lordship observed that he had never been able to learn why merchants and shipowners continued the practice of making out a bill of lading in parts. But, he said that so long as the practice continues it was of vast importance not to unsettle the principles which had already been settled: Glyn Mills 7 App Cas at 605. In that case, like this one, bills of lading were issued in a set of three. 30 Here, the bill of lading contained the time honoured clause recording that the master had signed three original bills of lading '... of this tenor and date, one of which being accomplished, the others will be void'. Hilditch was the holder for value of the bill of lading. It was a negotiable instrument. Hilditch was entitled to present the bill of lading to Dorval to enforce its right to delivery of its property, being the cargo referred to in that document of title. On delivery of the bill by Hilditch to Dorval, the bill of lading was, as it said, 'accomplished'. The other two originals became void. Dorval's argument has no substance. 31 I am of opinion that Hilditch became a lawful holder of the bill of lading for the purposes of the Sea-Carriage Documents Act . This is because it had come into possession of the bill, in good faith, as a result of completion, by delivery, of the bill which was endorsed in blank. The bill had become a bearer bill through it being endorsed in blank by SK. It had been transferred from SK by delivery to the Export-Import Bank of Korea, then to National Australia Bank and, ultimately, by a transfer of the bill, as a bearer bill, to Hilditch (see the Sea-Carriage Documents Act ; s 5 , definition of 'lawful holder', par (b)).


case_outcome: referred to

case_text: Article 3 r 2 is, of course, expressly subject to the provisions of Art 4. The interaction between the two articles was discussed recently by the Full Court in the Ankergracht 160 FCR 342. It is well established that in order for a carrier to rely on the exceptions contained in Art 4 r 2 it must not be negligent or at fault, that is to say in breach of, relevantly, Art 3 r 2: Gamlen Chemical 147 CLR at 152, 154 per Stephen J, 164-165 per Mason and Wilson JJ; Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad [1998] HCA 65 ; (1998) 196 CLR 161 at 193 [85] , 195-196 [91]-[95] per McHugh J, 216-219 [143]-[146] per Kirby J, 243 [228] per Callinan J, see too at 180-181 [49]-[50] per Gaudron, Gummow and Hayne JJ; the Ankergracht 160 FCR at 413-414 [270] per Rares J. 85 The fundamental question which the rules require to be addressed in a case like this is why was the cargo damaged: Great China 196 CLR at 173 [26], 181 [49] per Gaudron, Gummow and Hayne JJ, 195-196 [91]-[95] per McHugh J, 218-219 [146] per Kirby J, 243 [226] per Callinan J. Here, the answer is clear: because the ship did not properly and carefully discharge the Yubase 6. It permitted the admixture. The exceptions in Art 4 r 2 and particularly Art 4 r 2(i) simply cannot be engaged by a carrier who seeks to assert, as Dorval did here, that the cargo interest must direct it in performing its responsibilities under Art 3 r 2. 86 Article 3 r 8 expressly prohibits a carrier contracting out of its responsibilities and liabilities under the amended Hague Rules. I am of opinion that Dorval's contention that Hilditch had a responsibility to stop Dorval discharging when it was in breach of its obligations under Art 3 r 2 should be rejected. 87 Mr Kanagasabai and Mr McCarthy both gave evidence that during the discharge operations, the ship's officers observed the taking of samples from the ship's manifold from time to time. They said, and I accept, that each of those samples was contaminated. Each said that not all of the samples which he took were retained. I accept their evidence. I find that it was evident to both the ship's officers and crew and Hilditch's surveyors that the Yubase 6 was being discharged in a damaged condition and that the damage had occurred on the ship. Hilditch could have asked for the discharge to be halted and the cause of contamination investigated. Mr Kanagasabai did make such a request, but it appears to have been put to one side by him and the ship's officers. Just as obviously, the ship's officers could have, and should have, halted the discharge operation after seeing that the cargo was discharging in a contaminated condition. There is no evidence of why the officers and crew did nothing.


case_text: In Heskell v Continental Express Ltd [1950] 1 All ER 1033 at 1046-1048 Devlin J discussed the operation of concurrent causes on the ability of a plaintiff to recover damages in both tort and contract. He concluded that whatever the true rule of causation may be, if a breach of contract is one of two causes, both co-operating and both of equal efficacy, it was sufficient to entitle the plaintiff to recover damages for breach of contract: Heskell [1950] 1 All ER at 1049.


case_title: Kalls Enterprises Pty Ltd (In Liq) v Baloglow (No 3) [2007] NSWCA 298


case_title: Key v Cotesworth (1852) 7 Ex Ch 595

case_text: By delivering a bill of lading endorsed in blank together with an invoice for apparent transmission to National Australia Bank in accordance with the letter of credit it had opened, SK vested property in the goods, including Yubase 6, in whomever was the bearer of the bill of lading: Key v Cotesworth (1852) 7 Ex Ch 595 at 607 per Parke B giving the judgment of the Court of Exchequer; see too Walley v Montgomery (1803) 3 East 585 at 591 per Lord Ellenborough CJ, Grose, Lawrence and Le Blanc JJ concurring; see also Carver on Bills of Lading (1 st ed, 2001) at [6-030]; Gaskell N, Asariotis R and Baatz R, Bills of Lading: Law and Contracts (2000) at [4.80]-[4.81].


case_title: Leduc v Ward (1888) 20 QBD 475

case_text: Even though the bill of lading was originally made between SK, as charterer, and Dorval, as owner, incorporating the charterparty dated 1 June 2006 between them, the bill contained the clause paramount. In the present circumstances it is common ground that that had the effect of incorporating the amended Hague Rules as a clause paramount in the bill of lading when it was transferred as a negotiable instrument by SK. Once the bill had been transferred before delivery of the cargo, the terms of the bill, as amended by the clause paramount, constituted the contract of carriage for the Yubase 6 cargo. This is because the bill had been endorsed by SK in blank and subsequently delivered to Hilditch: Leduc v Ward (1888) 20 QBD 475 at 479 per Lord Esher MR; The 'A1 Battani' [1993] 2 Lloyd's Rep 219 at 222 per Sheen J; Tate and Lyle Ltd v Hain Steamship Co Ltd (1936) 55 Ll L Rep 159 at 174 per Lord Atkin. Hilditch became the holder and bearer of the bill.


case_title: Lickbarrow v Mason (1794) 5 TR 683

case_text: Under the law merchant, an endorsement in blank of a negotiable instrument made out to order converts the instrument to a bearer instrument: Sewell v Burdick (1884) 10 App Cas 74 at 83 per Earl of Selborne LC, 92-93 per Lord Blackburn. In Lickbarrow v Mason (1794) 5 TR 683 at 686 the jury found that: '... by the custom of merchants, indorsements of bills of lading in blank, that is to say, by the shipper or shippers with their names only, have been, and are, and may be, filled up by the person or persons to whom they are so delivered or transmitted. ...' That custom has been accepted commercial practice since Lickbarrow v Mason 5 TR 683. The case established that a bill of lading was a transferable document of title: Glyn Mills Currie & Co v The East and West India Dock Company (1882) 7 App Cas 591 at 604 per Lord Blackburn. In Scrutton on Charterparties and Bills of Lading (18 th ed, 1974) at 181 (20 th ed, 1996) at 184 the learned authors observed that a bill of lading endorsed in blank may pass from hand to hand by mere delivery so as to affect the property in the goods: see too Keppel Tatlee Bank Ltd v Bandung Shipping Pte Ltd [2003] 1 Lloyd's Rep 619 at 622 [18]-[20] (CA Singapore).


case_title: Sewell v Burdick (1884) 10 App Cas 74

case_text: Under the law merchant, an endorsement in blank of a negotiable instrument made out to order converts the instrument to a bearer instrument: Sewell v Burdick (1884) 10 App Cas 74 at 83 per Earl of Selborne LC, 92-93 per Lord Blackburn. In Lickbarrow v Mason (1794) 5 TR 683 at 686 the jury found that: '... by the custom of merchants, indorsements of bills of lading in blank, that is to say, by the shipper or shippers with their names only, have been, and are, and may be, filled up by the person or persons to whom they are so delivered or transmitted. ...' That custom has been accepted commercial practice since Lickbarrow v Mason 5 TR 683. The case established that a bill of lading was a transferable document of title: Glyn Mills Currie & Co v The East and West India Dock Company (1882) 7 App Cas 591 at 604 per Lord Blackburn. In Scrutton on Charterparties and Bills of Lading (18 th ed, 1974) at 181 (20 th ed, 1996) at 184 the learned authors observed that a bill of lading endorsed in blank may pass from hand to hand by mere delivery so as to affect the property in the goods: see too Keppel Tatlee Bank Ltd v Bandung Shipping Pte Ltd [2003] 1 Lloyd's Rep 619 at 622 [18]-[20] (CA Singapore). 25 Hilditch was entitled to delivery of the cargo because it was the holder of the bill of lading. It presented the bill to Dorval and received delivery of the Yubase 6. At the time of presentation, on the evidence, Hilditch was also the owner of the cargo and had the property in it. (There is no evidence that its rights were subject to any security interest which National Australia Bank might have had. But, in any event, such an interest does not prevent Hilditch having property in the cargo: Sewell 10 App Cas at 84-85 per Earl of Selborne LC, 92-93 per Lord Blackburn; Westpac Banking Corporation v 'Stone Gemini' [1999] FCA 434 ; (1999) 110 FCR 47 at 58-59 [36] - [37] per Tamberlin J.)


case_text: The obligation of the carrier under Art 3 r 2 of the amended Hague Rules is a compound one. It requires not only that the carrier exercise reasonable care in the discharge of the goods, but also that it have a sound system for discharging them: Albacora SrL v Westcott & Laurance Line Ltd [1966] 2 Lloyd's Rep 53 at 58 per Lord Reid, 62 per Lord Pierce and 64 per Lord Pearson; Shipping Corporation of India Ltd v Gamlen Chemical Co (A/sia) Pty Ltd [1980] HCA 51 ; (1980) 147 CLR 142 at 163 per Mason and Wilson JJ (with whom Gibbs J and Aickin J agreed at 149, 168); C V Sheepvaartonderneming Ankergracht v Stemcor (A/sia) Pty Ltd (2007) 160 FCR 342 at 370 [88] per Ryan and Dowsett JJ, 405 [229]-[230], 413 [266], [268] per Rares J. Dorval did not lead any evidence of the system, if any, for discharge of a cargo such as Yubase 6 from the Golden Lucy I . 80 Article 3 r 2 is, of course, expressly subject to the provisions of Art 4. The interaction between the two articles was discussed recently by the Full Court in the Ankergracht 160 FCR 342. It is well established that in order for a carrier to rely on the exceptions contained in Art 4 r 2 it must not be negligent or at fault, that is to say in breach of, relevantly, Art 3 r 2: Gamlen Chemical 147 CLR at 152, 154 per Stephen J, 164-165 per Mason and Wilson JJ; Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad [1998] HCA 65 ; (1998) 196 CLR 161 at 193 [85] , 195-196 [91]-[95] per McHugh J, 216-219 [143]-[146] per Kirby J, 243 [228] per Callinan J, see too at 180-181 [49]-[50] per Gaudron, Gummow and Hayne JJ; the Ankergracht 160 FCR at 413-414 [270] per Rares J. 89 Article 4 r 2(i) provides an exception to the carrier's liability in matters in which the damage arises or results from something which is beyond the control of the carrier or its servants: Gamlen Chemical 147 CLR at 164 per Mason and Wilson JJ. The damage here did not arise or result from something beyond the control of the ship or its servants. Quite the contrary, the damage arose because the ship's officers and crew could easily have stopped the discharge but did not. Nor did they explain their failure to give evidence. In Gamlen Chemical [1980] HCA 51 ; 147 CLR 142, Mason and Wilson JJ were considering the Hague Rules, but their comments are equally applicable to the amended Hague Rules. They said that the scheme of the Rules was to impose certain responsibilities and liabilities on the carrier of goods by sea from which it could not contract out, by force of Art 3 r 8, but to give it immunity in respect of loss or damage caused otherwise than by negligence for which it is responsible, save in special cases to which they referred: Gamlen Chemical 147 CLR at 165. 90 In Gamlen Chemical 147 CLR at 163-164 Mason and Wilson JJ considered the question of concurrent causes of a loss under the Hague Rules. There, the carrier argued that even though in breach of Art III r 2, the goods had not been properly stowed, it was entitled to the benefit of the exception in Art IV r 2(c) because the vessel had encountered conditions which amounted to a peril of the sea. The trial judge had found that had the goods been properly stowed, the damage would not have occurred. Thus, the negligent stowage and the perils of the sea were concurrent causes of the loss. Mason and Wilson JJ said: 'It seems to us that an accurate reflection of these findings requires one to treat the two concurrent causes of the loss as inseparable, and therefore joint. The loss would not have occurred but for the faulty stowage, but on the other hand, the faulty stowage did not cause the loss by itself. On this view, and treating the matter strictly as a matter of construction of the rule, it cannot be said that the damage resulted from a peril of the sea, and the appellant fails.' 91 Thus, the carrier could not escape liability by proving the existence of a circumstance excepting it under Art IV r 2 where its negligence in breach of Art III r 2 had caused damage to the cargo. Mason and Wilson JJ said that a construction which excepted the carrier from liability in that scenario would denude the obligation imposed by Art III r 2 of much of its substance. They recognised that a number of the exceptions in Art IV r 2 involved situations which were beyond the control of the carrier or its servants. They said that any reference in that context to negligence was inappropriate because the events excepted were, of their nature, ones which occurred independently of negligence on the part of the carrier. 92 Mason and Wilson JJ explained ( Gamlen Chemical 147 CLR at 165): 'To the extent to which Art. III, r. 2, by using the word "properly" imposes on the carrier a more onerous duty than an absence of negligence then clearly to that extent the immunities described in Art. IV, r. 2 operate to qualify the liability otherwise resting on the carrier; indeed, if this is not the case then as Temperley points out in his monograph, Carriage of Goods by Sea Act 1924 , 3rd ed, p 48, pa.r (q) is not an immunity at all, for it would do no more than shift the onus of proof on to the carrier. On the other hand, if such a line of reasoning seeks to extract a greater symmetry of purpose than the Rules viewed in their entirety will admit, then the proper observation is simply that it must not be thought that the effect of the prefatory words to Art. III, r. 2 is to compel some impact on the scope and operation of the obligation imposed by that rule from every provision in Art. IV.' 93 At the end of the day, the question of whether a carrier can rely upon an immunity under Art IV r 2 must be answered by reference to all the circumstances of a particular case: Gamlen Chemical 147 CLR at 165 per Mason and Wilson JJ. Where the facts disclose that a loss was caused by the concurrent effects of an excepted and non-excepted circumstance, the carrier remains liable. The carrier will only escape liability if it proves that the loss or damage was caused by an excepted circumstance alone: cannot The Torenia [1983] 2 Lloyd's Rep 210 at 218; see also Tetley W, Marine Cargo Claims (3 rd ed, 1988) p 328. 99 Accordingly, I am of opinion that the predominant responsibility for the damage lies with Dorval. And, even if Hilditch's and Dorval's responsibility for the continuation of the discharge while contamination was occurring on board the Golden Lucy I were equal, Gamlen Chemical [1980] HCA 51 ; 147 CLR 142 requires me to find Dorval liable for damages. 100 Relevantly Art 3 r 6 provides: '6. Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage, or, if the loss or damage be not apparent, within three days, such removal shall be prima facie evidence of the delivery by the carrier of the goods as described in the sea carriage document.' 101 Immediately following completion of the discharge, Mr Kanagasabai delivered to the master at about 9.00am on 9 July a second notice of protest. He said to the master that he was giving him a 'consolidated notice' and that he had protested previously but had included everything in the latest notice. The notice stated, relevantly: 'We ... draw your attention to the following irregularities. 1. Prior to discharge No 2 pump strainer was inspected and noted to contain Molasses. 2. At the commencement of discharge, manifold samples were noted to be discoloured and contained substance like Molasses. 3. Approximately 12000 litres were slopped in to shore slop tanks due to cloudy samples. 4. Throughout the discharge, ship and shore manifold samples drawn were cloudy. 5. There were delays to discharge because of cleaning No 2 pump strainer and slopping to minimize contamination. Details of any claim will be submitted in due course if considered necessary. Should you or your agent wish to make contact on any matter arising out of this notice, please contact our principals or ourselves.' The master recorded on the notice: 'The substance like molasses is incorrect. The quantity counts only from Caleb Brett Surveyor.'


case_title: Tate and Lyle Ltd v Hain Steamship Co Ltd (1936) 55 Ll L Rep 159


case_title: The 'Al Battani' [1993] 2 Lloyd's Rep 21


case_title: The Torenia [1983] 2 Lloyd's Rep 210

case_text: At the end of the day, the question of whether a carrier can rely upon an immunity under Art IV r 2 must be answered by reference to all the circumstances of a particular case: Gamlen Chemical 147 CLR at 165 per Mason and Wilson JJ. Where the facts disclose that a loss was caused by the concurrent effects of an excepted and non-excepted circumstance, the carrier remains liable. The carrier will only escape liability if it proves that the loss or damage was caused by an excepted circumstance alone: cannot The Torenia [1983] 2 Lloyd's Rep 210 at 218; see also Tetley W, Marine Cargo Claims (3 rd ed, 1988) p 328.


case_title: Walley v Montgomery (1803) 3 East 585


case_text: Hilditch was entitled to delivery of the cargo because it was the holder of the bill of lading. It presented the bill to Dorval and received delivery of the Yubase 6. At the time of presentation, on the evidence, Hilditch was also the owner of the cargo and had the property in it. (There is no evidence that its rights were subject to any security interest which National Australia Bank might have had. But, in any event, such an interest does not prevent Hilditch having property in the cargo: Sewell 10 App Cas at 84-85 per Earl of Selborne LC, 92-93 per Lord Blackburn; Westpac Banking Corporation v 'Stone Gemini' [1999] FCA 434 ; (1999) 110 FCR 47 at 58-59 [36] - [37] per Tamberlin J.)


case_text: for Huntley referred to a statement by Greenwood J in Australian Olives Limited v Stout [2007] FCA 1958 at [33] where his Honour observed: In order to maintain continuity for those persons dealing with the register, a company recorded by ASIC as a responsible entity of a registered scheme remains the responsible entity until the record is altered to name the new entity, notwithstanding anything in Division 2. This passage paraphrases subs(1) of s 601FJ and adds an explanation of the purpose of the provision, namely, "to maintain continuity for those persons dealing with the register". I do not see any inconsistency between the passage quoted and my construction of s 601FJ(1). The passage quoted applies comfortably to AOL's position. Even on the assumption that there was a valid removal of AOL and appointment of Huntley, those who had dealt with AOL on the faith of the register would be safe in continuing to do so until the register was altered to name Huntley as the new RE. Counsel for Huntley suggests that my construction would lead to intolerable outcomes for innocent third parties, who would be in a quandary as to which company they should deal with as RE. It is true that at the present time, for example, according to the construction I have suggested, Huntley's status as registered RE might be falsified, so that a person dealing with Huntley in reliance on the register might subsequently discover that AOL was the RE. However, the person would have the benefit of the prima facie evidence constituted by the register, which would have to be displaced by evidence, and would have a claim against Huntley for breach of an implied warranty that it was the RE and therefore trustee for the scheme members (see s 601FC(2) of the Act). In any event, the construction urged by Huntley can also lead to difficulty in that the true RE would be denied that status, even if it placed convincing proof of it before the person, unless and until the dispute between the rivals for the position of RE was resolved and ASIC altered the register. Whatever course is followed, the disconformity between the true facts and those suggested by the registration could be a potential cause of hardship and loss in particular circumstances that can be hypothesised.


case_text: the construction suggested is consistent with the scheme of the registers kept by ASIC. Generally speaking, an ASIC writing that is based on the ASIC national database is only prima facie evidence: see, for example, ss 1274(7) and 1274B(2) of the Act. An exception is found in s 1274(7A) which is the familiar provision to the effect that a certificate issued by ASIC stating that a company has been registered under the Act is conclusive evidence that all requirements of the Act for its registration were complied with and that the company was duly registered as a company under the Act on the date specified in the certificate. The policy underlying that longstanding provision in the companies legislation was explained Evatt J in H A Stephenson & Son Limited (in liq) v Gillanders, Arbuthnot & Co [1931] HCA 47 ; (1931) 45 CLR 476 at 497 500. Unlike the issuing of a certificate of registration of a company, the making or changing of entries in a register on information supplied to ASIC does not create a new entity and associated rights and obligations, but is supposed to reflect rights and obligations that have already arisen.


case_text: a somewhat analogous provision is found in s 601GC(2) of the Act which requires that any modification to a registered scheme's constitution be lodged with ASIC and cannot take effect until lodged. In ING Funds Management Limited v ANZ Nominees Limited [2009] NSWSC 243 there was a question as to the effectiveness of actions taken by an RE to suspend the rights of members of two registered schemes to require redemption of their units. The RE contended that the actions taken by it were effective to modify the constitutions of the schemes to create the suspension. Section 601GC of the Act provided: (1) The constitution of a registered scheme may be modified, or repealed and replaced with a new constitution; (a) ... (b) by the responsible entity if the responsible entity reasonably considers the change will not adversely affect members' rights. (2) The responsible entity must lodge with ASIC a copy of the modification of the new constitution. The modification, or repeal and/or replacement cannot take effect until the copy has been lodged. The RE lodged documents with ASIC. Barrett J held, for reasons that do not presently matter, that a deed was required and that the execution and lodgment of the documents, which, it was common ground, did not constitute deeds, did not cause the constitutions to be modified pursuant to s 601GC(1)(b).


case_text: Each of the factors constituting breaches of s 187AB(1)(a) and (b) amount to one breach for each respondent of each of those paragraphs. This approach is consistent with that adopted by Jessup J in Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65 ; (2007) 158 FCR 543 at 575-576. 29 The authorities suggest that in matters involving contraventions of civil penalty provisions the following factors are relevant: • the circumstances in which the relevant conduct took place (including whether the conduct was undertaken in deliberate defiance or disregard of the Act ); • whether the respondents have previously been found to have engaged in conduct in contravention of the relevant part of the Act ; • whether the various contraventions are properly seen as distinct or whether they arise out of one course of conduct; • the consequences of the conduct found to be in breach of the Act ; and • the need for deterrence. 37 Counsel for Mr Cahill refers to the fact that the CFMEU has previously been fined for engaging in industrial action contrary to the Act . He refers to previous transgressions against s 187AB in Ponzio [2007] FCAFC 65 ; (2007) 158 FCR 543 as well as transgressions of other provisions. 38 Consistently with the approach taken in Ponzio [2007] FCAFC 65 ; (2007) 158 FCR 543 , I consider that a penalty should be imposed on the CFMEU, because the CFMEU officially applied pressure to representatives of Bovis to pay strike pay to CFMEU members. Bans were imposed at another Bovis site as part of that pressure in addition to stoppages at the site. Also, costly industrial action occurred over several days. The breaches, although in response to a safety issue, were deliberate. Resolution of the safety issue did not require the taking of industrial action. There was no reason why work could not continue on other parts of the site which were unaffected by the spill. So much is consistent with the safety disputes resolution procedure which is commonly applied on building sites. That procedure involves the immediate problem being isolated and work being performed elsewhere when it is safe to do so. 39 I accept that there is no need for specific deterrence. The making of claims for strike pay is not now a feature of the construction industry. The events the subject of this proceeding occurred nearly four years ago in a vastly different industrial climate to that which currently exists. I accept there is some need for general deterrence, although not to any great extent, as breaches of this type are now rare, and will be so, irrespective of what percentage of the maximum penalty is imposed on the CFMEU. 40 The CFMEU is a large organisation with nationwide coverage. I do not consider that the actions of other branches or officials (other than those involved in this matter) in respect of other provisions of industrial legislation should be visited upon them for the purposes of assessing penalty. I form a different view, of course, concerning prior contravention of s 187AB. 41 Weighing up all the circumstances and relevant sentencing factors, including the CFMEU's co-operation in the proceeding with Mr Cahill and its expenditure of funds in its involvement in the proceeding, I consider that a penalty of $4,000 is an appropriate one, doing one's best to weigh together all the countervailing factors referred to above and applying the totality principle to the contraventions; see Ponzio [2007] FCAFC 65 ; (2007) 158 FCR 543 per Jessup J at 575 and Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 per Gray J at [23] and Graham J at [66] and [71-73]. 43 An important factor in striking the appropriate penalty at a rate set slightly below that struck by the majority in Ponzio [2007] FCAFC 65 ; (2007) 158 FCR 543 is that it is now April 2008 and since May 2004 there have been no new applications alleging any breaches of strike pay provisions of the Act , including as amended on 27 March 2006 by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth). The only other breaches of the strike pay provisions of the Act arose out of a single death in the industry in August 2003. The other significant matter in this case is the cooperation of the CFMEU in ensuring that the Court dealt with penalty on agreed facts thus saving much time and expense. 44 I consider that no useful purpose would be served by fining Mr Setka or Mr Tadic. Mr Setka was simply doing his job as a union official in accordance with the CFMEU's then approach to safety issues and strike pay. That approach has changed. Mr Setka, like other organisers in the industry, does not now make claims for strike pay. His conduct was that of an agent for his employer. He represented the members of the CFMEU in accordance with its then corporate approach to issues of the type dealt with in these reasons for judgment. 45 I also consider that no useful purpose would be achieved by fining Mr Tadic. He was performing his representative role as a shop steward. No doubt, he was guided by the more industrially experienced Mr Setka and the then expectations of the CFMEU. Shop stewards in the industry are now well aware that agitating for strike pay is a thing of the past.


case_text: These factors, together with the need for the protection of industrial freedom of association, were re-affirmed by two members of the Full Court in Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18 ; (2007) 157 FCR 329 per Branson J at 362 and Marshall J at 370. 31 Other factors made relevant by other authorities include: • the financial position and nature of the respondents; • the co-operation of the respondents; and • the contrition of the respondents. 32 Counsel for the respondents reminds the Court that the dispute which led to the contraventions of the Act arose out of a serious and legitimate safety dispute which caused an imminent risk to health and safety at the site after a spillage of 12 tonnes of concrete. This occurred in circumstances where previous serious safety issues about lead paint fragments and asbestos had arisen on the site.


case_text: Weighing up all the circumstances and relevant sentencing factors, including the CFMEU's co-operation in the proceeding with Mr Cahill and its expenditure of funds in its involvement in the proceeding, I consider that a penalty of $4,000 is an appropriate one, doing one's best to weigh together all the countervailing factors referred to above and applying the totality principle to the contraventions; see Ponzio [2007] FCAFC 65 ; (2007) 158 FCR 543 per Jessup J at 575 and Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 per Gray J at [23] and Graham J at [66] and [71-73].


case_text: The applicant made a request to the respondent, a court created under Ch III of the Constitution , for certain documents. The respondent declined to grant that request. The applicant's request for internal review of the decision was granted, but the decision was affirmed after internal review. The applicant then sought review of the respondent's decision by the Administrative Appeals Tribunal ("the Tribunal"). The Tribunal's decision was to affirm the decision under review. The decision and reasons for decision, which are designated as Bienstein and Family Court of Australia [2006] AATA 385 (2006) 43 AAR 34 , were given on 10 April 2006. The applicant appealed to this Court from that decision of the Tribunal. By s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act "), a party to a proceeding before the Tribunal may appeal to this Court from a decision of the Tribunal in that proceeding, but the right of appeal is limited to a question of law. 3 The object of the FOI Act is set out clearly in s 3: (1) The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by: (a) making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; and (b) creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities; and (c) creating a right to bring about the amendment of records containing personal information that is incomplete, incorrect, out of date or misleading. (2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information. 4 Section 5 provides: For the purposes of this Act: (a) a court shall be deemed to be a prescribed authority; (b) the holder of a judicial office or other office pertaining to a court in his or her capacity as the holder of that office, being an office established by the legislation establishing the court, shall be deemed not to be a prescribed authority and shall not be included in a Department; and (c) a registry or other office of a court, and the staff of such a registry or other office when acting in a capacity as members of that staff, shall be taken as a part of the court; but this Act does not apply to any request for access to a document of the court unless the document relates to matters of an administrative nature.


case_outcome: distinguished

case_text: In Bizuneh v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 42 (2003) 128 FCR 353 , a Full Court rejected an application for leave to appeal from a direction of a judge to a registrar under O 46 r 7A of the Federal Court Rules ("the Federal Court Rules ") not to accept an application and accompanying affidavit for filing. At [16]-[17], the Full Court said: No judicial act is carried out by the Registrar in so acting. The Registrar continues to perform an administrative function, albeit that the act of the Registrar may bear upon the ultimate performance of judicial power. Insofar as r 7A gives the Registrar a discretion to seek a direction from a judge as to performance of the Registrar's duties, the direction sought is administrative in character. It is a direction provided by a judge to assist the Registrar in the task of administration and is not a determination of right made by a judge after hearing or considering arguments or submissions upon an application to the Court seeking the exercise of judicial power. Rule 7A provides for a judge to act in aid of administration of the Court. There is no application to the Court by motion or otherwise and no requirement for a party to be heard. It involves determination of administrative obligations with respect to documents presented to a Registrar having regard to the character of the documents on their face. No order or decree intended to bind a party and no determination of right is made by a judge where assistance is provided to a Registrar under r 7A. 74 It appears to follow from the Full Court's judgment that both the decision of the registrar to seek a direction of a judge, and the decision of the judge to direct the registrar, are decisions of an administrative character. Unfortunately, the Full Court does not seem to have had the benefit of citation of the apparently contrary view of Toohey J in Letts . In Paramasivam v Randwick City Council [2005] FCA 369 , Sackville J took the view that he was bound by Bizuneh to decide that both the registrar seeking a direction of a judge, and the judge giving the direction, pursuant to O 46 r 7A of the Federal Court Rules , made decisions of an administrative character. At [31]-[39], his Honour referred to Edwards , Letts and Bizuneh. At [40]-[41], his Honour drew attention to the fact that the Full Court had not referred to Letts , and expressed doubts about the correctness of the reasoning in Bizuneh , whilst acknowledging that it was binding on him. His Honour made orders adding as respondents to the proceeding before him the deputy registrar who had made the decision to seek the direction of a judge and the judge who gave the direction to refuse to accept the documents. Subsequently, in Paramasivam v Randwick City Council (No. 2) [2005] FCA 508 , effectively by consent, Sackville J set aside both the decision to seek a direction, and the direction, on the ground referred to in s 5(1)(d) of the ADJR Act , apparently on the basis that his Honour had foreshadowed in the first judgment at [43]-[51]. This was that both the registrar and the judge had taken into account other documents previously filed by the same applicant, whereas O 46 r 7A requires that the originating process "appears...on its face to be an abuse of the process of the Court or to be frivolous or vexatious."


case_text: The applicant was wrong to suggest that, simply because the respondent did not adhere to its original decision, the Tribunal should have ordered it to make a new decision. The Tribunal was required to review the decision of the respondent itself, and to make the correct or preferable decision in accordance with the law and on the facts as it found them after its hearing. See Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 per Bowen CJ and Deane J. The fact that the respondent appeared to have retreated somewhat from its original decision did not mean that the decision had disappeared. Nor did the Tribunal possess statutory power to compel the respondent to make another decision on this basis. Section 42D of the AAT Act confers on the Tribunal power to remit the decision to the person who made it for reconsideration. That power does not include power to compel the original decision-maker to make a decision different from that made in the first place. (Section 42D(2) provides that, if the decision is remitted, the original decision-maker may affirm or vary the decision, or set aside the decision and substitute a new decision.) There is no requirement that the Tribunal exercise the power to compel reconsideration, only a discretion to do so. No error of law can result from a failure to exercise the power. 40 In principle, there is nothing wrong with the Tribunal encouraging the parties to an application for review to resolve their differences. Section 42C of the AAT Act makes specific provision for the Tribunal to act in accordance with agreement reached between the parties or their representatives as to the terms of a decision of the Tribunal, if it is satisfied that a decision in those terms or consistent with those terms would be within the powers of the Tribunal. It may be that, in the circumstances, when the applicant had made clear a number of times her intention to press for a decision of the Tribunal, rather than to agree to limiting her access to documents to those available under the Family Court Rules or to those offered to her by the respondent, the Tribunal went too far and delayed too long in attempting to persuade her to settle. This could not be characterised as an error of law. At the most, it was a well-intentioned but perhaps misguided attempt to have the proceeding resolved otherwise than by a decision of the Tribunal. 41 To the extent to which there was delay in the Tribunal proceeding, the delay appears to have been partly due to the applicant's illness, and to her consequent inability or unwillingness to move along her end of the proceeding. Whatever the objects of the FOI Act may say about promptness, it is not an error of law for the Tribunal not to hear and determine an application within any particular period after the filing of the application. Managing the large number of cases that come before the Tribunal is challenging enough without imposing on the Tribunal deadlines in particular types of cases. The object of promptness in s 3(2) of the FOI Act is exhortatory, not mandatory. Lack of promptness is not error of law.


case_text: The senior member then set out the terms of s 5 of the FOI Act , and a passage quoted from the judgment of the High Court in Fingleton v The Queen [2005] HCA 34 (2005) 227 CLR 166 at [52] per Gleeson CJ, to which I refer below. The senior member then referred to MacKeigan v Hickman [1989] 2 SCR 796 , to which Gleeson CJ had referred in Fingleton , for its comments by the Supreme Court of Canada on the limits of the power to investigate the reasons for a decision to assign a judge to a case. The senior member then continued: 8. The Tribunal has considered the nature of the documents relevant to Ms Bienstein's request, and finds that the documents refer to organisational matters such as Court lists and the assigning of judicial officers to particular cases. As noted in Fingleton, these are matters affecting litigants and the public, and are intimately related to the independent and impartial administration of justice. They are not documents of internal administration. 9. For these reasons under s 5 of the FOI Act the Tribunal finds that the relevant documents are not documents that relate to matters of an administrative nature, so the FOI Act does not apply to the request for access to the documents. 35 The questions of law specified in the applicant's notice of appeal are in the following terms: 1) Whether a Respondent who claims to have grounds for challenging the Tribunal's jurisdiction is compelled either to issue the challenge and have it determined at the outset or submit to the jurisdiction for the duration of the proceeding; 2) What bearing, if any, do the following statutory provisions have on the s 11 enforceable right of access provision of the Freedom of Information Act : a) Sections 5 , 14 and 20 FOI Act , generally; b) Order 5 Rule 6 Family Court Rules in the context of Tribunal proceedings regarding an FOI request to the Family Court of Australia for access to one's own case management documents; 3) Whether it is Tribunal's role in Part VI FOI Review proceedings to determine which of the Applicant's rights in respect of the request remain to be satisfied and promptly direct the Respondent to satisfy those rights in a timely manner; 4) Whether an Applicant in Part VI Review proceedings has an immediate right to receive in the Respondent's s 37 statement full and honest disclosure of the Respondent's relevant document holding, an account of the steps the Respondent took in the search and decision-making process, and documents to evidence the account given; 5) Whether documents relating to the case management of matters before the Family Court of Australia necessarily fall within the s 5 FOI Act exclusion and whether the High Court decision in Fingleton v The Queen [2005] HCA 34 (23 June 2005) supports such a conclusion; 36 It is clear that the notice of appeal was prepared without legal assistance. The questions of law are framed in an abstract way, rather than by reference to specific issues decided by the Tribunal or to specific reasons given by it for its decision. Grounds 2 and 5 clearly raise the effect of s 5 of the FOI Act , and therefore raise for consideration the correctness of the Tribunal's decision that all of the possible documents sought in the applicant's request did not relate to matters of an administrative nature. The other questions of law raised concern aspects of the way in which the Tribunal dealt with the applicant's application for review of the respondent's decision, prior to the Tribunal making its decision. These concerns of the applicant are reflected in the orders sought in her notice of appeal, which are expressed in the following terms: 1) Declare that documents related to the management of cases proceeding in a court or tribunal are documents of the court or tribunal relating matters of an administrative nature and, as such, fall outside the s 5 FOI exclusion. 2) Declare that the Tribunal's role during the course of proceedings and when making a final decision is to promote and enforce the Applicant's rights in relation to the FOI request in question. 3) Declare that the Tribunal has an obligation to ensure that Respondents comply fully and without undue delay with provisions of s 37 of the Administrative Appeals Tribunal Act . 4) Directed the Respondent to file an appropriately amended s 37 statement, incorporating an amended decision with schedule of all documents within scope of the request that had been located, an account of the searches it had conducted and objective documentary evidence in support of the account; 5) Set aside the Tribunal decision and remit the matter to be dealt with according to law. 6) Make a costs order in favour of the Applicant. 37 The concern of the applicant with the manner in which her request for access to documents was dealt with by the respondent, both initially and while it was pending in the Tribunal, is reflected in the grounds advanced in the notice of appeal. These grounds cover approximately six pages. The applicant sets out in some detail the history, which I have set out above, including some substantial quotes from correspondence and other documents. Woven into this history are indications that the applicant takes issue with various statements made on behalf of the respondent and with the course taken by the Tribunal in relation to her application to review. She also clearly takes issue with the view of the respondent, and that of the Tribunal, in relation to the application of s 5 of the FOI Act . 55 As I have said in [34], the Tribunal relied on a passage quoted from the judgment of Gleeson CJ in Fingleton v The Queen [2005] HCA 34 (2005) 227 CLR 166 at [52] , where his Honour said: The answer to that question, and to the respondent's argument, requires closer examination of s 10 of the Magistrates Act . In truth it covers a number of matters closely related to issues of judicial independence. Sub-sections (1) and (2) of s 10 cover the whole range of matters relevant to the orderly and expeditious exercise of the jurisdiction and powers of the Magistrates Courts, and include the organising of court lists, the allocation of magistrates to particular localities, and the assigning of magistrates to particular work. Arrangements of that kind are not merely matters of internal administration. They affect litigants and the public. Within any court, the assignment of a judicial officer to a particular case, or a particular kind of business, or a particular locality, is a matter intimately related to the independent and impartial administration of justice. This was the basis of the decision of the New South Wales Court of Appeal in Rajski v Wood, where it was held that the nomination or allocation of a judge to hear a particular case was not justiciable. As was pointed out in Minister for Immigration and Multicultural Affairs v Wang, where it is the function of a head of jurisdiction to assign members of a court to hear particular cases, the capacity to exercise that function, free from interference by, and scrutiny of, the other branches of government is an essential aspect of judicial independence. The same may be said of the capacity to exercise that function free from the threat of civil or criminal sanctions. 56 When viewed in the context of the judgment of Gleeson CJ, this passage may not lead to the conclusion that the Tribunal drew from it. 57 In Fingleton , the Chief Magistrate of Queensland had been convicted of the offence of unlawful retaliation against a witness under s 119B of the Criminal Code (Qld) ("the Criminal Code "). The facts were that the Chief Magistrate had determined that a magistrate should be transferred to Townsville. The magistrate filed an application for review of that determination. The magistrate wrote to the Magistrates Association, seeking assistance with her application. A Co-ordinating Magistrate, who was also Vice-President of the Magistrates Association, provided an affidavit to assist the magistrate in the review proceeding. The Chief Magistrate then sent to the Co-ordinating Magistrate a letter calling on him to show cause why he should not be removed from the position of Co-ordinating Magistrate. The letter referred specifically to the affidavit in support of the magistrate's review application. 58 On appeal to the High Court, there was raised for the first time s 30 of the Criminal Code , which provided: Except as expressly provided by this Code, a judicial officer is not criminally responsible for anything done or omitted to be done by the judicial officer in the exercise of the officer's judicial functions, although the act done is in excess of the officer's judicial authority, or although the officer is bound to do the act omitted to be done. 59 The power the exercise of which by the Chief Magistrate gave rise to the charge was found in s 10 of the Magistrates Act 1991 (Qld) ("the Magistrates Act "). Particularly relevant was the express power in s 10(2)(d) , of nominating a magistrate to be a Supervising Magistrate or a Co-ordinating Magistrate for the purpose of the allocation of work of the Magistrates Court. In conjunction with s 25(1) of the Acts Interpretation Act 1954 (Qld), the power to appoint included a power to remove. It was also necessary to consider s 21A of the Magistrates Act , which provided: A magistrate has, in the performance or exercise of an administrative function or power conferred on the magistrate under an Act, the same protection and immunity as a magistrate has in a judicial proceeding in a Magistrates Court. 60 One of the issues determined by the High Court in Fingleton was whether, in combination, s 21A of the Magistrates Act and s 30 of the Criminal Code gave immunity to the Chief Magistrate in exercising the power given to her by s 10(2)(d) of the Magistrates Act . In his reasons for judgment, Gleeson CJ dealt at length with this issue. At [47]-[48], his Honour summarised the competing contentions on the issue: The argument for the appellant in this Court was that s 10 of the Magistrates Act conferred on the appellant as Chief Magistrate a series of administrative functions and powers, that she acted in the performance or exercise of those powers, that she had the same protection and immunity as she had in the exercise of her judicial functions, and that, except as expressly provided by the Code, she was not criminally responsible for anything done by her in the exercise of her administrative functions, even if the act done was in excess of her administrative authority. The argument for the respondent turned upon a question of construction of s 21A and, in particular, the words "administrative function or power conferred on [a] magistrate under an Act". The respondent submitted that those words did not cover s 10 of the Magistrates Act itself. The argument called in aid two considerations: one textual; the other related to the rationale of immunity. 61 His Honour then proceeded to deal with what he described as the textual consideration. This involved the question whether the phrase "under an Act" in s 21A of the Magistrates Act referred only to functions or powers conferred on magistrates by legislation other than the Magistrates Act , or whether it included such powers and functions conferred by the Magistrates Act itself. By contrast, the consideration related to the rationale of immunity involved a comparison of the sorts of functions and powers conferred by s 10 of the Magistrates Act with the sorts of functions and powers conferred by various other statutes, as to which there was a need for the protection of magistrates from interference with their independence in the decision-making process. The question that Gleeson CJ answered in the passage from his judgment, which I have quoted in [55] above, is posed in [51] of his Honour's judgment: Such independence is important in relation to the exercise by magistrates of the various responsibilities conferred on them by other Acts of the kind set out above. What, the respondent asks, does it have to do with matters of internal court administration and discipline of the kind dealt with by the Magistrates Act itself? 62 It is to be noted that, in the passage quoted in [55] above from his Honour's judgment, Gleeson CJ described s 10 of the Magistrates Act as covering a number of matters "closely related to issues of judicial independence." In other words, they were not themselves issues of judicial independence, but closely related. His Honour referred to the organising of court lists, the allocation of magistrates to particular localities and the assigning of magistrates to particular work. In saying that arrangements of that kind "are not merely matters of internal administration", but that they "affect litigants and the public", his Honour was not saying that those matters fell within the exercise of judicial power. Rather, Gleeson CJ was underlining the public importance of these aspects of court administration, because of their close relationship to issues of judicial independence. Following the passage quoted in [55] above, in [52] of his Honour's reasons for judgment, Gleeson CJ said: The responsibilities conferred upon a Chief Magistrate by s 10 would cover some mundane issues of a kind that arise in the administration of any substantial organisation. On the other hand, some of those responsibilities, and especially those involving decisions which directly or indirectly determine how the business of Magistrates Courts will be arranged and allocated, concern matters which go to the essence of judicial independence. The selection of supervising and Co-ordinating Magistrates is a matter that falls into that category. It is, therefore, incorrect to say that the functions and powers conferred on the Chief Magistrate by s 10 are unrelated to the rationale for the immunity in question. As to some of those functions the rationale is directly relevant. As to some it may be of no relevance, or of limited relevance. As to others, its relevance may depend upon the circumstances. 65 In Fingleton at [59], McHugh J expressed his agreement with the reasons of Gummow and Heydon JJ with respect to the issue relevant to this case. At [121]-[123], Gummow and Heydon JJ said: The appeal in this Court thus turns upon the construction of s 21A of the Magistrates Act . The submissions for the respondent fix upon the phrase therein "conferred on the magistrate under an Act". The respondent seeks to introduce a limitation upon those words so that the phrase is to be understood as if it read "under any Act other than this Act". Section 10 of the Magistrates Act conferred upon the appellant a range of administrative functions or powers. They included the nomination of Co-ordinating Magistrates, the allocation of magistrates to particular localities and the power of reprimand. Indeed, it was a demand made by the appellant upon a Co-ordinating Magistrate to show cause why he should not be removed from that post which gave rise to the charge against her under s 119B of the Code. Attainment of the evident purpose of s 21A will be limited if it were to be given the qualified reading for which the respondent contends. For these reasons, which concern the construction of s 21A, and those on this issue developed by the Chief Justice in his judgment, the appellant was not liable to be held criminally responsible for the conduct alleged against her. 66 For reasons that he set out at [162]-[169], Kirby J came to the same conclusion on the question of judicial immunity. At [193], Hayne J expressed his agreement with the reasons of Gummow and Heydon JJ. Each of the members of the High Court other than Kirby J therefore expressed their agreement, directly or indirectly, with the reasons given by Gleeson CJ. 67 What emerges from Fingleton , and particularly from the passage quoted by the Tribunal, of relevance to this case is the proposition that there will be powers and functions exercised and performed within a court, even by the judicial officers of that court, that are of an administrative nature. Some of those powers and functions will be such that, of their very nature, they are so close to the overriding consideration of judicial independence as to be an essential part of the adjudicative function. It follows that the exercise of those functions, although it might be termed "administrative", ought to be protected from scrutiny by other arms of government, or by members of the public. Not all of the powers and functions properly characterised as being of an administrative nature will be so closely related to judicial independence that they need this kind of protection. In some cases, it will be necessary to look at the particular exercise of a power, or the particular act or acts in performance of a function, in their context, to determine whether public or executive scrutiny of them would endanger the necessary independence. This accords with the sort of distinction expressed by Senator Evans when he moved the amendment that became ss 5 and 6 of the FOI Act , between documents relating to matters of an administrative nature, and documents the exposure of which to the public view would threaten the independence which is a necessary element of the exercise of adjudicative functions by courts and tribunals. It is this distinction that is of the highest relevance in determining the purpose, and therefore the proper construction, of s 5 (and, incidentally, of s 6) of the FOI Act . 68 Reference was made by counsel for the respondent to a number of other authorities, either on s 5 of the FOI Act or on similar legislation. It is necessary to look at those authorities, to see whether they provide any useful guidance to the construction of s 5 , as relevant to this proceeding.


case_text: There is a line of authority, to which Deputy President Walker referred, concerning whether a determination that a court should accept documents for filing, or reject them as an abuse of the court's processes, falls within the phrase "decision of an administrative character" in the ADJR Act . In Legal Aid Commission of Western Australia v Edwards (1982) 42 ALR 154 , Toohey J held that a decision of a deputy registrar of the Family Court of Western Australia to reject an application for taxation of a bill of costs, on the ground that the court did not have jurisdiction to deal with a dispute between the Legal Aid Commission and the solicitors for a legally aided party, was a decision of an administrative character. At 158-159, his Honour pointed out that the decision was not made under the direction of the court, apparently meaning under the direction of a judge. By contrast, in Letts v Commonwealth (1985) 8 FCR 585 at 586-587, Toohey J held that a registrar of the High Court, who sought the direction of a justice with respect to an attempt to file initiating process, had not made a decision of an administrative character. At 587, his Honour said: The Registrar was in truth exercising the jurisdiction of the High Court to control frivolous or vexatious applications, a jurisdiction that may be exercised through officers of the court as well as justices. His Honour distinguished Edwards on the basis that the decision the subject of Edwards "was not readily susceptible of review by a judge of that Court." 74 It appears to follow from the Full Court's judgment that both the decision of the registrar to seek a direction of a judge, and the decision of the judge to direct the registrar, are decisions of an administrative character. Unfortunately, the Full Court does not seem to have had the benefit of citation of the apparently contrary view of Toohey J in Letts . In Paramasivam v Randwick City Council [2005] FCA 369 , Sackville J took the view that he was bound by Bizuneh to decide that both the registrar seeking a direction of a judge, and the judge giving the direction, pursuant to O 46 r 7A of the Federal Court Rules , made decisions of an administrative character. At [31]-[39], his Honour referred to Edwards , Letts and Bizuneh. At [40]-[41], his Honour drew attention to the fact that the Full Court had not referred to Letts , and expressed doubts about the correctness of the reasoning in Bizuneh , whilst acknowledging that it was binding on him. His Honour made orders adding as respondents to the proceeding before him the deputy registrar who had made the decision to seek the direction of a judge and the judge who gave the direction to refuse to accept the documents. Subsequently, in Paramasivam v Randwick City Council (No. 2) [2005] FCA 508 , effectively by consent, Sackville J set aside both the decision to seek a direction, and the direction, on the ground referred to in s 5(1)(d) of the ADJR Act , apparently on the basis that his Honour had foreshadowed in the first judgment at [43]-[51]. This was that both the registrar and the judge had taken into account other documents previously filed by the same applicant, whereas O 46 r 7A requires that the originating process "appears...on its face to be an abuse of the process of the Court or to be frivolous or vexatious."


case_title: Letts v Commonwealth (1985) 8 FCR 585


case_text: In Loughnan (Principal Registrar, Family Court of Australia) v Altman [1992] FCA 580 ; (1992) 39 FCR 90 , the Full Court dealt with an appeal from a decision of the Tribunal, constituted by its then President, O'Connor J, in Re Altman and Family Court of Australia (1992) 27 ALD 369. Her Honour had reached the conclusion that an unrevised transcript of reasons for judgment pronounced in open court by a judge of the respondent was a document that the respondent was required to give access to under s 5 of the FOI Act . Because the unrevised transcript was produced by the agency responsible for providing transcript of court proceedings, the case turns largely on the meaning of the expression "a document of the court" in s 5 , and is therefore of little relevance to the present case. In the course of the Full Court's judgment, at 95, the Court did approve the conclusion of O'Connor J that the unrevised transcript was not a document of an administrative nature. Clearly, the giving of reasons for judgment and the practice of revising the transcript of those reasons for publication as the reasons for judgment are at the very heart of the judicial process, and the ready availability of the unrevised transcript to the public could undermine the independence of the judiciary. 70 Loughnan has since been discussed in a couple of decisions of the Tribunal. In Re O'Sullivan and Family Court of Australia (1997) 47 ALD 765 , Senior Member Dwyer dealt with a case in which access was sought to the handwritten notes of a Family Court counsellor. In her reasons, the learned senior member discussed Loughnan in the context of determining whether the counsellor's notes were documents of the court. Having concluded that they were, at [25] the senior member found that the notes were not a document relating to matters of an administrative nature, because of the professional duties of the counsellor. It is unnecessary to decide in the present case whether that conclusion was correct. In Re Simring and High Court of Australia [2006] AATA 849 (2006) 44 AAR 103 , Deputy President Walker dealt with a request for access to a document created in the course of dealing with an application for special leave to appeal to the High Court. The learned deputy president took the view that, because the document had been brought into existence within the chambers of a judge, as part of the judicial deliberative process, it was a judicial document, and not a document relating to matters of an administrative nature. The deputy president regarded Loughnan as not in point. At [19], the deputy president referred to the words "relates to matters of an administrative nature" in s 5 of the FOI Act in the following terms: The language used is relatively flexible and focuses on the general nature of the document rather than on the presence in the document of any administrative features whatever, however insignificant they might be in relation to the document's general nature. Even if the document in issue dealt incidentally with some administrative matters, and there is no evidence that it does, that would not necessarily detract from its overall quality as a document pertaining to the judicial role of the Court rather than to its administrative organisation.


case_title: MacKeigan v Hickman [1989] 2 SCR 796

case_text: The senior member then set out the terms of s 5 of the FOI Act , and a passage quoted from the judgment of the High Court in Fingleton v The Queen [2005] HCA 34 (2005) 227 CLR 166 at [52] per Gleeson CJ, to which I refer below. The senior member then referred to MacKeigan v Hickman [1989] 2 SCR 796 , to which Gleeson CJ had referred in Fingleton , for its comments by the Supreme Court of Canada on the limits of the power to investigate the reasons for a decision to assign a judge to a case. The senior member then continued: 8. The Tribunal has considered the nature of the documents relevant to Ms Bienstein's request, and finds that the documents refer to organisational matters such as Court lists and the assigning of judicial officers to particular cases. As noted in Fingleton, these are matters affecting litigants and the public, and are intimately related to the independent and impartial administration of justice. They are not documents of internal administration. 9. For these reasons under s 5 of the FOI Act the Tribunal finds that the relevant documents are not documents that relate to matters of an administrative nature, so the FOI Act does not apply to the request for access to the documents.