case_text: conclusion does not exclude the possibility of a claim by Olivaylle for relief under the TPA. The following observations made by Lockhart and Gummow JJ in Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470 at 505-506 are apposite: (8) The result of this examination of the provisions of the legislation before and after the 1977 Act is that para. 4 (2) (a), in dealing with "conduct" operates generally, in its terms, so that the T.P. Act after the 1977 Act, was to be read as "one connected and combined statement of the will of Parliament . ..": Sweeney v Fitzhardinge ; [1906] HCA 73 ; (1906) 4 CLR 716 at 735. So understood, para. 4 (2) (a) provides significant support for the conclusion reached in this case by the primary Judge, and for the general proposition that the making of a statement as to a presently existing state of affairs, if false, may be the engaging in misleading or deceptive conduct, where the statement is embodied as a provision of a contract. In many cases, there will have been pre-contractual conduct which itself contravenes s. 52. The present case is a striking one because it was presented on a narrower basis, and concerned the giving of the warranties in the contract itself. (9) Where the conduct relied upon involves not a statement as to a presently existing state of affairs, but a representation with respect to a future matter, which is contained purely in a contractual promise, then a case for contravention of s. 52 will involve consideration of the extra steps spelled out in s. 51A of the T.P. Act. Some of the issues that would arise in such a case are discussed by Ormiston J in Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217 at 233-241, where reference is made to the relevant authorities in this Court. But this is not a case concerning representations as to future conduct. This case does concern a representation with respect to a future matter. In that regard and as Lockhart and Gummow JJ counsel in the passage quoted assistance is to be gained by regard to the judgement of Ormiston J in Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217 at 239-241 His Honour offered the following analysis with which I respectfully agree: It would seem on the authorities that, at the least, a contractual promise would amount to an implied representation that the promisor then had an intention to carry out that promise. If it can be shown that he had no such intention he would be guilty of misleading or deceptive conduct. Likewise it would seem that such a representation connotes a present ability to fulfil that promise which, if shown to be untrue at the time of making, would likewise characterise the implied representation as misleading or deceptive. It is not easy to fit s51A and s10A into the scheme of each Act if the broader view should prevail. One of the principal difficulties is subs(3) in each case which says that subs(1) shall be deemed not to limit by implication the meaning of any reference in the Division to, inter alia, "conduct that is misleading or is likely . . . to mislead". One can understand that the section should not be treated as qualifying by implication the types of conduct which can be characterised as misleading or deceptive. It is another to say that the section does not show in what way a defendant can establish that a representation as to the future which is "taken to be misleading" does not amount to a contravention of s52 or s11, as the case may be; for subs(2), by negative implication, says that, if a person adduces evidence that he had "reasonable grounds for making the representation" as to future conduct, then the representation shall no longer be taken to be misleading. If those who maintain that implied promise plus breach are sufficient to constitute misleading conduct are correct, then the question whether the promisor had reasonable grounds for making the representation would be irrelevant. It would be sufficient, on that hypothesis, to show that the promisee was "led into error" by reason of the promise subsequently broken, regardless of the promisor's having reasonable grounds for making the representation. Thus, despite the apparently restrictive words of subs(3), the basis for holding that a promise amounts to misleading conduct must be that it carries with it an implication that the promisor had no reasonable grounds for making the representation, i.e. the promise. If he overcomes the section's presumption against him, by proof to the contrary, then it follows that his representation and thus his conduct was not misleading, for present purposes. Otherwise each of the inserted sections would be pointless in so far as it purports to qualify, or expand, s52 and s11. In my opinion, therefore, accepting that s51A and s10A each assumes that a promise may give rise to an implied representation that the promisor will perform an act in the future, namely the promised act, then the promisee is not, in proceedings under s52 or s11, bound to show that the promisor had no intention or no ability to perform the promise at the time of its making. The promisor will be deemed not to have reasonable grounds for making the representation or promise, unless he satisfies the court by evidence to the contrary that he had reasonable grounds for making that representation. He may achieve this, in part, by showing that he had a genuine intention to perform his promise and that he had the ability at the time to perform it, but in the end he must show objectively that he had reasonable grounds for making the representation. For present purposes I am not prepared to accept that the plaintiff can make out its case by showing merely promise and breach. In my opinion, that evidence, on its own, is insufficient to show that the promisee was "led into error" unless the plaintiff can rely on s10A or s51A If there is no element of actual or deemed misrepresentation then the promisee can have been led into no error, nor can it be said to have been misled, by reason of some subsequent breach which causes it harm or loss. If the facts connote no error or misrepresentation, nothing thereby led it to take a course which was erroneous. It follows from what has been said that I am not persuaded that one should treat every contractual promise as giving rise to an implied representation of the kind referred to in s10A (and s51A) However. I am persuaded that if there be an unconditional promise which forms part of the contractual obligations, then it is proper to treat the giving of that promise, at least in the ordinary case, as the making of a representation as to a future matter, being either the doing of an act or the "refusing" (sic) to do an act, being in each case the subject of the promise. Perhaps conditional promises may also be treated as the making of a representation as to future conduct, but in each case the qualified terms of the promise would usually lead to the conclusion that the maker had reasonable grounds therefore, unless it could be shown that under no circumstances would the promisor have fulfilled his promise. It is, however, not necessary to determine this latter point. Has Flottweg shown that it had reasonable grounds for making each of the "representations", ie the promise as to oil recovery, the promise as to the achievement of a minimum level of atmospheric oxygen and the promise as to the processing speed of the line? I find that, objectively, it did, for the following reasons. I should observe at once that I am satisfied on the whole of the evidence that Flottweg had a genuine intention to fulfil the Contract in all respects, including the supply of equipment that would meet each of the specifications in the Contract.


case_outcome: applied

case_text: production line has been used certainly for 4 years (and perhaps now also a 5 th ). It is hardly new any longer. It has been used to derive income. It is not possible to effect perfect restitution after this length of time. I accept that this does not automatically rule out the making of an order for rescission: JAD International Pty Ltd v International Trucks Australia Ltd (1994) 50 FCR 378. Delay and depreciation of the goods sold are but factors to take into account in the exercise of a discretion. To make an order now for rescission and return of the goods would require the making of compensatory orders in favour of Flottweg to take account of what I infer must be an inevitable deterioration in the value of the goods after this length of time and to make allowance for the benefit of the use Olivaylle has enjoyed. I have no evidence that would allow me justly to assess the diminution in value of the machines in the production line, only to form a conclusion that they must have depreciated. Further, the goods are not as Flottweg sold them or even last modified them. There is evidence before me that, at Olivaylle's request, Mr Carey has made modifications to the line since July 2006. As to delay, Olivaylle was requested as long ago as January 2007 by Flottweg to return the goods. I am not persuaded that it was left with no alternative to keep them, at least beyond the 2007 season. It made no response to this. It was in July 2006 that Olivaylle purported to withdraw from the Contract. On Mr De Moya's evidence, it seems that Flottweg was but one of a number of potential suppliers of a production line. On the evidence, it took less than a year once the order was placed for Flottweg to deliver, install and commission the production line. Olivaylle seems to have done nothing to that end. Even though I further accept that the power conferred to order rescission conferred by virtue of s 87 of the TPA is wider than under the general law ( JAD International Pty Ltd v International Trucks Australia Ltd , supra), it seems to me that, even at the end of the 2007 season, the considerations to which I have adverted would not have made that remedy just as a matter of discretion.


case_outcome: cited

case_text: of course, assumes that Olivaylle should not be regarded as having earlier elected to affirm the Contract. In February 2006 it believed, based on its experience of the 2005 season, that the production line was non-compliant in each of its processing speed and its ability to achieve 1% or less v/v of atmospheric oxygen. Yet it chose then not to bring the Contract to an end but rather to seek to rely upon the peculiar right of "withdrawal" after allowance of a reasonable period of grace that it conferred. Thereafter, it chose to use the production line. In my opinion, that amounted to an affirmation of the Contract: Long v Lloyd [1958] EWCA Civ 3 ; [1958] 2 All ER 402. Olivaylle's decision to install, commission and use an on-site bottling plant after what it believed was Flottweg's non-compliance with contractual specifications is also consistent with its having decided to affirm the Contract and retain the production line. As to the claims based on the Contract, there is a limitation of liability clause present. That clause would not, in my opinion, affect the operation of the contractual provision for "withdrawal". The limitation of liability clause would though limit the amount of any further sum which could be awarded to Olivaylle under the Contract to 5% of the total price, ie to €33,930.00. The language of the clause is such that it would limit each of Olivaylle's consequential loss claim and it loss of profits claim to no more than this amount in aggregate. For reasons which will shortly emerge, these claims might aptly be described as fantastic.


case_text: Lorenz was not initially a witness whom Flottweg proposed to call. After the expiry of the time fixed by direction for the filing of evidence in chief and for that matter after Olivaylle had closed its case, Flottweg made application for leave to file an affidavit made by him upon which, as events transpired, he came to be cross-examined. For reasons which I gave in the course of the trial, I permitted Flottweg to adduce evidence from him: Olivaylle Pty Limited v Flottweg GMBH & Co KGAA (No 3) [2008] FCA 572 ; (2008) 76 IPR 152. Mr Lorenz was at the time of his involvement with events of present relevance and remains by occupational title a sales engineer. From about 2003 he has had worldwide responsibility within Flottweg for that company's dealings in the field of edible oils, which includes olive oil production. He had the benefit of being trained for his current role by his predecessor, a Mr Langenbrink, whom he replaced on the latter's retirement and a Mr Ecker, the Group leader of Flottweg's Edible Fats Oil Division, who retired in 2006. Each of Messrs Ecker and Langenbrink had extensive experience in the provision and servicing of production line machinery for the olive oil industry internationally. Mr Lorenz also has what I regard as the benefit of having carried out technical repairs, servicing, start up testing and operator training in respect of Flottweg decanters, tricanters, belt presses and Veronesi separators (and the associated plant such as polymer stations and screw conveyors) over a period of some 15 years prior to assuming the role of sales engineer. He undertook this work on joining Flottweg after his completion of a trade apprenticeship with one of its competitors. His title "sales engineer" gives an accurate idea of his current role. He is not just an equipment salesman. He is able to and does bring to the task of equipment sales an ability to assess and advise upon the performance characteristics, limitations and other technical aspects of Flottweg's machinery and production lines into which such machinery will be integrated based on both formal trade qualifications and, especially, years of relevant, practical experience with the machinery.


case_text: behalf of Olivaylle it was submitted that this document "is clearly an important part of the background to the Contract". It is certainly part of that background; but in this case too much can be made of that fact. The role of such a document relative to the Contract is as described by Lord Wilberforce in Reardon Smith Line Ltd v Hansen-Tangen ; Hansen-Tangen v Sanko Steamship Co (The Diana Prosperity) [1976] 1 WLR 989 at 995-996, in a passage which commended itself to Mason J in Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 at 350 and to Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ in Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at 462, [22] : In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating. I have already made reference to Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451. Later, in their joint judgement in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at 179, [40] , Gleeson CJ, Gummow, Hayne, Heydon and Callinan JJ remarked of that case: This Court, in Pacific Carriers Ltd v BNP Paribas, has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.


case_text: behalf of Olivaylle it was submitted that this document "is clearly an important part of the background to the Contract". It is certainly part of that background; but in this case too much can be made of that fact. The role of such a document relative to the Contract is as described by Lord Wilberforce in Reardon Smith Line Ltd v Hansen-Tangen ; Hansen-Tangen v Sanko Steamship Co (The Diana Prosperity) [1976] 1 WLR 989 at 995-996, in a passage which commended itself to Mason J in Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 at 350 and to Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ in Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at 462, [22] : In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating.


case_text: acceptance was communicated by email to Olivaylle at its olive grove in Victoria. Experience suggests that email is often, but not invariably, a form of near instantaneous communication. The parties seemed content to assume that the place of contract was either Victoria or New South Wales, content because the common law of Australia was the same in either place and so, too, was the only statute law considered material. There was no suggestion in submissions that the place of contract was, for example, Germany. As a result, the ramifications of the adoption by the parties of email for their written pre-contractual communications, particularly the acceptance, were not explored. As it happens, the subject of formation of contracts by email has been explored in depth in an article by a local academic, Christensen S, "Formation of Contracts by Email Is it Just the Same as the Post?" (2001) 1(1) Queensland University of Technology Law and Justice Journal 22. Ms Christensen details there arguments for and against the assimilation of email communications with "the postal rule" or with what one might term "the instantaneous communication rule" and also the local adoption of international convention which touches on the subject. Having regard to the position taken by the parties in this case, it is not necessary to give detailed consideration to the point. It is enough to observe that I consider that there are analogies to be drawn with the way the law developed in relation to telex communications in an earlier era where what I have termed "the instantaneous communication rule" came to be adopted, perhaps at the expense of scientific precision but not so in relation to common commercial understanding. Thus, by analogy with cases concerning the position with what were, or were treated as, other forms of instantaneous communication, I consider that the contract was made where the acceptance was received, ie in Victoria: Entores Ltd v Miles Far East Corporation [1955] 2 QB 327; W A Dewhurst & Co Pty Ltd v Cawrse [1960] VR 278 ; Express Airways v Port Augusta Air Services [1980] Qd R 543; Reese Bros Plastics Ltd v Hamon-Sobelco Australia Pty Ltd (1988) 5 BPR 11 ,106.


case_text: Reigate v Union Manufacturing Co (Ramsbottom) Ltd [1918] 1 KB 592 at 605, in a passage cited with approval by the Judicial Committee of the Privy Council in an Australian appeal, BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283, Scrutton LJ said: A term can only be implied if it is necessary in the business sense to give efficacy to the contract i.e., if it is such a term that it can confidently be said that if at the time the contract was being negotiated some one had said to the parties, 'What will happen in such a case?', they would both have replied: 'Of course, so and so will happen; we did not trouble to say that; it is too clear. Lord Justice Mackinnon made observations to like effect in relation to the implication of a contractual term in Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206 at 227 in a passage which also commended itself to the Judicial Committee in BP Westernport Case (ibid).


case_text: is an agency of the United Nations established by the General Assembly in 1966. It has as its mandate from the General Assembly the progressive harmonisation and unification of the law of international trade. It has fostered the development of a number of international conventions and model laws which range in subject from the international sale of goods through to cross-border insolvency and, as Ms Christensen's article (supra) reminds, electronic commerce. When this fact and that the Vienna Convention "governs only the formation of the contract of sale and the rights and obligations of the seller and buyer arising from such contract; in particular [the Vienna Convention] is not concerned with the effect that the contract may have on the property to the goods sold" ( Roder Zelt-Und Hallenkonstruktionen GMBH v Rosedown Park Pty Ltd & Eustace (1995) 57 FCR 216 at 222) are taken into account, it is an unlikely construction of the Contract that the sentence referring to "UNCITRAL law" is to take its meaning from the sentence which precedes it. Given the nature of the Contract, the fact that a party to it, Flottweg, was and was known by Olivaylle to be a company which sold its wares internationally and the reference to the exclusion of "UNCITRAL law" appearing at its conclusion under the heading "Other dispositions", the more likely construction of "UNCITRAL law" is that it was intended to be a reference to the particular UNCITRAL convention that governed the international sale of goods, ie the Vienna Convention. "Other dispositions" looks to me to be a heading which describes miscellaneous, unrelated terms of general application to the goods sold. The positioning of the sentence at the end of the Contract further supports a construction that it was meant to govern all of its terms. The Contract provided for the supply by Flottweg to Olivaylle of an olive oil production line more particularly described as a "Continuous Flottweg Special 5 TPH in sealed N² Version Olive Oil Line". "TPH" refers to tonnes per hour. N² is a reference to nitrogen. In this production line nitrogen gas was used as a means of displacing oxygen from the line. It was thought by Mr De Moya that this would yield qualitative benefits in the production of olive oil. In its initial form, the production line was delivered to Olivaylle's olive grove at Telopea Downs in April 2005.


case_text: right of "withdrawal" in the Contract seems to me to be of a quite different character to what in Meagher RP, Gummow WMC and Lehane JRF, Equity Doctrines & Remedies (4 th ed Butterworths, 1992) at [24-005], describe as the "first sense" of five senses in which the term "rescission" is used in law. The learned authors there state, by reference to observations made by Gibbs CJ in Shevill v Builders Licensing Board [1982] HCA 47 ; (1982) 149 CLR 620 at 625-626 that, so used, it describes "the situation where a party to a contract, upon a breach by the other party of a condition, elects to treat the contract as no longer binding upon him". In that situation, "both parties are discharged from further performance of the contract. But rights already acquired are not divested or discharged and causes of action which have accrued from the breach continue unaffected": Equity Doctrines & Remedies , 4 th ed, ibid. That in the Contract "withdrawal" is offered as an alternative to reduction in price persuades me that restoration of the original position is intended rather than a release from further performance. The intent is to offer a choice between returning the goods and getting one's money back or keeping the goods but with the benefit of a reduced price. Though that conclusion follows as a matter ordinary English read in context, it also seems to me to be in accord with civil law notions of what is meant by such alternatives. "Withdrawal" would thus enable orders for the return of the goods supplied and for the refund of the amount paid under the Contract. It is truly a quite exceptional right. That it is available only after the allowance of a "reasonable period of grace", which can apply in the case of the repair or replacement obligation, persuades me that the right continues to be available even if the result is that used and thereby devalued goods are returned. That substantial restitution of the goods sold was not possible would otherwise disentitle a party to a contract to an entitlement to "rescission" but not, as I conceive it, to exercise the right of "withdrawal" conferred by the Contract.


case_title: Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206


case_text: have already made reference to Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451. Later, in their joint judgement in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at 179, [40] , Gleeson CJ, Gummow, Hayne, Heydon and Callinan JJ remarked of that case: This Court, in Pacific Carriers Ltd v BNP Paribas, has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.


case_title: W A Dewhurst & Co Pty Ltd v Cawrse [1960] VR 278


case_text: The Tribunal's conclusion that the appellant's experiences, as he recounted them, did not amount to persecution would, if correct, be a sufficient reason for rejecting the appellant's application. No challenge has been made to the Tribunal's characterisation of the conduct as non-persecutory nor, in my view, would any such challenge have been successful. The conclusion that the One Child Policy does not, of itself, constitute persecution is in accord with the High Court's decision in Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 . Similarly there is no evidence to suggest that the Tribunal made any jurisdictional error in failing to be satisfied that the appellant was targeted because of his membership of any particular social group.


case_outcome: considered

case_text: In VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 , North J considered a decision of the Tribunal for which, in his Honour's view, there were four independent bases, only three of which were challenged on appeal. His Honour rejected the challenges to two of the three. The appellant in VBAP challenged the third basis of the decision on the ground of an alleged breach of s 424A. It was submitted that if such a breach was made out then, following the decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162, the Tribunal's decision must be set aside. Responding to this submission his Honour said: " SAAP does not stand for the proposition that if there be a breach of s 424A in relation to one ground upon which a decision is made, and there exists one or more other grounds upon which the decision is not or cannot be impeached, the decision nonetheless falls. SAAP was itself a case in which the only ground relied upon was a ground on which jurisdictional error was established. There was therefore no other basis upon which the decision in that case could be upheld. In the present case there are three other bases upon which the decision may be supported." 11 I agree with his Honour that SAAP does not stand for the proposition asserted. Provided that the other ground or grounds of decision are truly independent of the ground that is tainted by error and are themselves free of jurisdictional error then, in my view, it follows that the Tribunal had jurisdiction to make the decision it made. In this case the Tribunal put aside its doubts about the appellant's credibility and for the purpose of considering if he had suffered persecution in the past, accepted his account. Putting the appellant's claims at their highest however, the Tribunal did not accept that he had suffered persecution in the past or that he had a well-founded fear of persecution in the future. In my view this decision was within the jurisdiction of the Tribunal. 12 For these reasons the appeal must be dismissed with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 22 March 2007 The appellant appeared in person, assisted by an interpreter. Counsel for the Respondent: Ms R Pepper Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 20 February 2007 Date of Judgment: 22 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/398.html


case_outcome: followed

case_text: In VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 , North J considered a decision of the Tribunal for which, in his Honour's view, there were four independent bases, only three of which were challenged on appeal. His Honour rejected the challenges to two of the three. The appellant in VBAP challenged the third basis of the decision on the ground of an alleged breach of s 424A. It was submitted that if such a breach was made out then, following the decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162, the Tribunal's decision must be set aside. Responding to this submission his Honour said: " SAAP does not stand for the proposition that if there be a breach of s 424A in relation to one ground upon which a decision is made, and there exists one or more other grounds upon which the decision is not or cannot be impeached, the decision nonetheless falls. SAAP was itself a case in which the only ground relied upon was a ground on which jurisdictional error was established. There was therefore no other basis upon which the decision in that case could be upheld. In the present case there are three other bases upon which the decision may be supported."


case_text: In Banque Commerciale SA En Liquidation v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279 at 293, Dawson J observed that pleadings are but a means to an end, not an end in themselves. His Honour referred to an early authority of the High Court in which it was said that the function of pleadings is to state with sufficient clarity the case which the other party to the proceeding is required to meet: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) [1916] HCA 81 ; (1916) 22 CLR 490 at 517.


case_outcome: referred to

case_text: As Merkel J said in Bray v F Hoffman-La Roche Ltd (2003) ATPR 41-906 at [24], the level of generality permitted in a representative pleading should not be so great that the respondents cannot reasonably be expected to know, with any precision, the case they have to meet. This decision was reversed on appeal on other grounds, but that does not affect Merkel J's statement of the principle.


case_text: Other authorities to similar effect are Shelton v National Roads and Motorists' Association (2004) 51 ACSR 278 at [18] [21] (per Tamberlin J) and BWK Elders (Australia) Pty Ltd v Westgate Wool Company Pty Ltd (No 2) [2002] FCA 87 at [20] (per Mansfield J).


case_text: This principle is no less applicable today. It was reiterated by Young J in Cadence Asset Management Pty Ltd v Concept Sports Ltd (2006) 58 ACSR 435 at [34] [35]. 35 Young J observed in Cadence at [35] that the authorities establish that any want of clarity in the pleading can be cured by amendment or by particulars, although he also said that particulars cannot be used to fill gaps in material facts, which must be alleged. His Honour went on to say at [37] that consistent with the rules of pleading, a case can be pleaded at different levels of generality: But, whatever level of generality is adopted in the statement of claim, it must adhere to the basic principle that the purpose of pleadings is to define the issues and thereby inform the parties in advance of the case they have to meet and so enable them to take steps to deal with it ... On the other hand, a pleading will infringe the applicable practice rules if it contains nothing more than broad conclusions asserted at such a high level of generality that the opposite party cannot understand the case it has to meet. 39 In Cadence at [40] Young J referred to earlier authority of the Court which emphasises that the case management and individual docket system is such that it is well placed to ensure no embarrassment or prejudice about pleadings. Usually this can be addressed by requiring particulars to be supplied or by other means short of striking out the pleading: see Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 569 at [8] [9] (per Merkel J). 43 The effect of what Young J said in Cadence at [40] is that a strike-out motion is a blunt instrument, to be used only in the event that the Court's case management procedures cannot be adapted to enable the matter to go forward. 44 However, it seems to me that this is a case where the defect in the pleading is so fundamental that it cannot be allowed to stand in this form.


case_text: The difficulty which arises is that [13] of the Statement of Claim is central to the allegation that statements made in the prospectus, and in the August 2004 and October 2004 announcements, were rendered false by reason of events which occurred later. But as a Full Court observed in Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 88, the non-fulfilment of a prediction when the time for performance arrives does not of itself establish that the prediction was false when made or that its maker did not have an adequate foundation for its content (per Bowen CJ, Lockhart and Fitzgerald JJ). 46 What is required in the present case is a statement of the material facts in terms sufficiently clear to enable the respondents to understand precisely what the facts are that are relied upon to establish the falsity of the alleged representations or the absence of reasonable grounds. 47 The Statement of Claim does not meet this test because the eight adverse profitability circumstances are stated at a level of generality which does not enable the respondents to know what is alleged. In particular, they are not linked to any comparison with the contents, express or implied, of the prospectus or the August 2004 or October 2004 announcements and they are unlimited in point of time. 48 I accept that the actual dates when relevant matters became known are within the knowledge of the directors of Village Life. But it is for Hanne to plead whether by inference from other facts, or otherwise, matters which disclose an arguable case that the directors were, or ought to have been, aware of particular circumstances which affected the accuracy of the earlier predictions. 49 It may well be that Hanne can do so. It is notable that Village Life does not seek to strike out the claim on the ground that the Statement of Claim is hopeless or does not disclose a cause of action. The proximity of the downgrades in February 2005 and May 2005 to the announcements made in late 2004 is pertinent. So too is Mr Gageler's submission that the matters alleged in general terms in [13] of the Statement of Claim did not happen overnight. What occurred was apparently revealed by events over a period of time.


case_title: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) [1916] HCA 81 ; (1916) 22 CLR 490


case_text: The importance of formulating a claim in an intelligible form was also stressed by Byrne J in Ipex ITG Pty Ltd v Melbourne Water Corporation (No 3) [2006] VSC 83 at [42] .


case_text: In Cadence at [40] Young J referred to earlier authority of the Court which emphasises that the case management and individual docket system is such that it is well placed to ensure no embarrassment or prejudice about pleadings. Usually this can be addressed by requiring particulars to be supplied or by other means short of striking out the pleading: see Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 569 at [8] [9] (per Merkel J).


case_title: Northam v Favelle Favco Holdings Pty Ltd (unreported, Sup Ct of NSW, Bryson J, 7 March 1995)

case_text: In Northam v Favelle Favco Holdings Pty Ltd (unreported, Sup Ct of NSW, 7 March 1995), Bryson J observed that it is not fair to require a defendant to flesh out general expressions or indirect allusions.


case_outcome: distinguished

case_text: Sometimes a Notice to Produce may be an appropriate method of case management: see eg P Dawson Nominees Pty Ltd v Multiplex Ltd (2007) 64 ACSR 53 at [30] per Heerey J. But that would usually be where the notice, or a subpoena, would be expected to produce documents that have at least potential relevance to the issues in the case: see P Dawson at [31]. 53 Here, the difficulty which arises is that the issues are not defined because the pleading is too general to enable that to occur. It is the pleadings which inform the question of the content of a valid Notice to Produce. It is not for Hanne to issue a Notice to Produce to find out what case it might be able to plead. That is not to say that in due course a Notice to Produce may still be impermissible. It will be a question of whether Hanne can plead a case appropriate to what is admittedly an early stage of the proceedings. 54 Moreover, [31] of the Statement of Claim is also defective because it obscures a fact which is fundamental to the claim of reliance. Did Hanne read the prospectus or the August 2004 or October 2004 announcements? If it did, this should be pleaded. If it did not, the pleading should reflect this because there may be serious consequences for the constitution of the proceeding and the composition of the represented group.


case_text: In the Full Court decision of Philip Morris (Australia) Ltd v Nixon [2000] FCA 229 ; (2000) 170 ALR 487 at [129] [136], Sackville J set out the principles applicable to pleadings in representative actions under Part IVA of the Federal Court of Australia Act . His Honour observed that unless the rules of pleading permit a degree of flexibility, serious inroads would be made into the utility of the representative procedure. 41 However, it is clear from what Sackville J said that the level of generality which may be permitted in pleadings in representative actions is concerned with the pleading of facts material to the claims of each member of the represented group: see Philip Morris at [134], [136], cf. Bray v Hoffman La Roche [2003] FCAFC 153 ; (2003) 200 ALR 607 at [122] per Carr J, at [199] per Branson J (dissenting), and at [248] per Finkelstein J.


case_title: Shelton v National Roads and Motorists' Association (2004) 51 ACSR 278


case_text: In Butcher and Another v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 212 ALR 357, which was a case on the effect of a disclaimer and the passing on of information, rather than on a failure to disclose material information, the High Court considered a question similar to that consider in Demagogue involving the sale of real estate. McHugh J (dissenting on a different point) at 383 to 384, at [109], analysed s 52 and said: 'The question whether conduct is misleading or deceptive or is likely to mislead or deceive is a question of fact. In determining whether a contravention of s 52 has occurred, the task of the court is to examine the relevant course of conduct as a whole. It is determined by reference to the alleged conduct in the light of the relevant surrounding facts and circumstances. It is an objective question that the court must determine for itself. It invites error to look at isolated parts of the corporation's conduct. The effect of any relevant statements or actions or any silence or inaction occurring in the context of a single course of conduct must be deduced from the whole course of conduct. Thus, where the alleged contravention of s 52 relates primarily to a document, the effect of the document must be examined in the context of the evidence as a whole. The court is not confined to examining the document in isolation. It must have regard to all the conduct of the corporation in relation to the document including the preparation and distribution of the document and any statement, action, silence or inaction in connection with the document'. (references omitted) The majority (Gleeson CJ, Hayne and Heydon JJ) said at 366 to 367, at [37] to [39]: 'The plaintiff must establish a causal link between the impugned conduct and the loss that is claimed. That depends on analysing the conduct of the defendant in relation to that plaintiff alone. So here, it is necessary to consider the character of the particular conduct of the particular agent in relation to the particular purchasers, bearing in mind what matters of fact each knew about the other as a result of the nature of their dealings and the conversations between them, or which each may be taken to have known. Indeed, counsel for the purchasers conceded that the mere fact that a person had engaged in the conduct of supplying a document containing misleading information did not mean that that person had engaged in misleading conduct: it was crucial to examine the role of the person in question. The relevant principles. In Yorke v Lucas [(1985) [1985] HCA 65 ; 158 CLR 661 at 666], Mason ACJ, Wilson, Deane and Dawson JJ said that a corporation could contravene s 52 even though it acted honestly and reasonably: That does not, however, mean that a corporation which purports to do no more than pass on information supplied by another must nevertheless be engaging in misleading or deceptive conduct if the information turns out to be false. If the circumstances are such as to make it apparent that the corporation is not the source of the information and that it expressly or impliedly disclaims any belief in its truth or falsity, merely passing it on for what it is worth, we very much doubt that the corporation can properly be said to be itself engaging in conduct that is misleading or deceptive. In applying those principles, it is important that the agent's conduct be viewed as a whole. It is not right to characterise the problem as one of analysing the effect of its "conduct" divorced from "disclaimers" about that "conduct" and divorced from other circumstances which might qualify its character. Everything relevant the agent did up to the time when the purchasers contracted to buy the Rednal land must be taken into account. It is also important to remember that the relevant question must not be reduced to a crude inquiry: "Did the agent realise the purchasers were relying on the diagram?" To do that would be impermissibly to dilute the strict liability which s 52 imposes'. (references omitted)


case_text: It is convenient to discuss the applicable legal principles before discussing the facts. Silence, or the failure to disclose information, can constitute misleading and deceptive conduct for the purposes of s 52 of the TP Act . In Demagogue Pty Ltd v Ramensky and Another (1992) 39 FCR 31, the Full Court dismissed an appeal where the trial judge had held that a vendor (by its real estate agent) had failed to disclose that access to a property purchased by the respondents was to be by public road as opposed to private driveway and that such failure was misleading and deceptive within the terms of the Act. The failure to disclose the relevant information occurred in the context of a positive representation from the agent of the appellant as to the proposed construction of the private driveway, and certain documents included in the contract of sale which referred to a 'driveway'. Black CJ said (at 32): 'Silence is to be assessed as a circumstance like any other. To say this is certainly not to impose any general duty of disclosure; the question is simply whether, having regard to all the relevant circumstances, there has been conduct that is misleading or deceptive or that is likely to mislead or deceive. To speak of "mere silence" or of a duty of disclosure can divert attention from that primary question. Although "mere silence" is a convenient way of describing some fact situations, there is in truth no such thing as "mere silence" because the significance of silence always falls to be considered in the context in which it occurs. That context may or may not include facts giving rise to a reasonable expectation , in the circumstances of the case, that if particular matters exist they will be disclosed'. (emphasis added) and Gummow J said (at 40): '"Conduct" within the meaning of s 52 includes refusing to do an act and refusal to do an act includes a reference to "refraining (otherwise than inadvertently) from doing that act": s 4(2). But in any case where a failure to speak is relied upon the question must be whether in the particular circumstances the silence constitutes or is part of misleading or deceptive conduct. The expanded meaning given by s 4(2) to "conduct" should not distract attention from the fundamental issue in the case at hand.' Gummow J expressed doubt that it was necessary to inquire in such a case about whether an independent "duty to disclose" had arisen on the basis that to do so digressed from the application of the terms of s 52 . 131 Another Full Court judgment followed shortly, Warner and Another v Elders Rural Finance Limited and Others (1993) 41 FCR 399 in which Hill J said at 405: 'To that extent, therefore, I would agree with Gummow J in Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31, that the search for a "duty to disclose" might be to digress from the application of the terms of s 52. Certainly I agree, with respect to his Honour, that neither Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 39 FCR 546 nor Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477 ultimately depended upon the existence of a duty and my analysis in Winterton (supra) in fact points to the fact that Henjo (supra), in which the applicant was successful, was what I have labelled "a half-truth case". I would not understand what his Honour said in Demagogue (supra), however, to mean that it was irrelevant that a duty to speak arose, for so to say would be to disapprove the language of Bowen CJ in Rhone-Poulenc and of Lockhart J in Henjo (at 557), both of which passages have been often cited with approval, including by Full Courts of this court: see, for example, Kabwand Pty Ltd v National Australia Bank Ltd [1989] ATPR 50,367. The test adopted by Black CJ, in separate comments, and by Gummow J, with whom Cooper J agreed, in Demagogue , of the need to find a reasonable expectation that silence would be broken before failure to speak is misleading or deceptive, differs little, if at all, from the test I suggested in Winterton when I spoke of "entitlement to expect" or "entitlement to infer". I would not have entered into further discussion of the matter but for the "Editorial Comment" with which Demagogue was published in the CCH report of the judgment (15 ATPR 40,844). That comment suggested that there was some conflict between the judgment of Gummow J in Demagogue and my discussion in Winterton . With respect, I think that the learned authors place too great an emphasis upon the comments made by Gummow J, with respect to the existence of a "duty to disclose". If one accepts the formulation of "reasonable expectation" in Demagogue as a test to be applied, either universally, or, at least, in most cases, the existence of a duty to disclose will still have significance'. 132 The approach in Demagogue has been applied on many occasions including most recently by the Full Court of this Court in Fleetman Pty Ltd v Cairns Pty Ltd [2005] FCAFC 80 (per Marshall, Mansfield and Siopis JJ) in which, in a joint judgment, their Honours referred with approval, to the above passage on the reasons of the Chief Justice. Similarly, the Court of Appeal of New South Wales in Hardy v Your Tabs Pty Ltd (in liq) [2000] NSWCA 150 per Heydon JA (at [69]) with whom Meagher JA and Foster AJA agreed, cited with approval the same passage. 134 In Butcher and Another v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 212 ALR 357, which was a case on the effect of a disclaimer and the passing on of information, rather than on a failure to disclose material information, the High Court considered a question similar to that consider in Demagogue involving the sale of real estate. McHugh J (dissenting on a different point) at 383 to 384, at [109], analysed s 52 and said: 'The question whether conduct is misleading or deceptive or is likely to mislead or deceive is a question of fact. In determining whether a contravention of s 52 has occurred, the task of the court is to examine the relevant course of conduct as a whole. It is determined by reference to the alleged conduct in the light of the relevant surrounding facts and circumstances. It is an objective question that the court must determine for itself. It invites error to look at isolated parts of the corporation's conduct. The effect of any relevant statements or actions or any silence or inaction occurring in the context of a single course of conduct must be deduced from the whole course of conduct. Thus, where the alleged contravention of s 52 relates primarily to a document, the effect of the document must be examined in the context of the evidence as a whole. The court is not confined to examining the document in isolation. It must have regard to all the conduct of the corporation in relation to the document including the preparation and distribution of the document and any statement, action, silence or inaction in connection with the document'. (references omitted) The majority (Gleeson CJ, Hayne and Heydon JJ) said at 366 to 367, at [37] to [39]: 'The plaintiff must establish a causal link between the impugned conduct and the loss that is claimed. That depends on analysing the conduct of the defendant in relation to that plaintiff alone. So here, it is necessary to consider the character of the particular conduct of the particular agent in relation to the particular purchasers, bearing in mind what matters of fact each knew about the other as a result of the nature of their dealings and the conversations between them, or which each may be taken to have known. Indeed, counsel for the purchasers conceded that the mere fact that a person had engaged in the conduct of supplying a document containing misleading information did not mean that that person had engaged in misleading conduct: it was crucial to examine the role of the person in question. The relevant principles. In Yorke v Lucas [(1985) [1985] HCA 65 ; 158 CLR 661 at 666], Mason ACJ, Wilson, Deane and Dawson JJ said that a corporation could contravene s 52 even though it acted honestly and reasonably: That does not, however, mean that a corporation which purports to do no more than pass on information supplied by another must nevertheless be engaging in misleading or deceptive conduct if the information turns out to be false. If the circumstances are such as to make it apparent that the corporation is not the source of the information and that it expressly or impliedly disclaims any belief in its truth or falsity, merely passing it on for what it is worth, we very much doubt that the corporation can properly be said to be itself engaging in conduct that is misleading or deceptive. In applying those principles, it is important that the agent's conduct be viewed as a whole. It is not right to characterise the problem as one of analysing the effect of its "conduct" divorced from "disclaimers" about that "conduct" and divorced from other circumstances which might qualify its character. Everything relevant the agent did up to the time when the purchasers contracted to buy the Rednal land must be taken into account. It is also important to remember that the relevant question must not be reduced to a crude inquiry: "Did the agent realise the purchasers were relying on the diagram?" To do that would be impermissibly to dilute the strict liability which s 52 imposes'. (references omitted)


case_text: Both parties submitted that the other should have called Mr Koeppen, and that the failure to do so enlivened the principle in Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298. That is, each submitted that the unexplained failure of the other to call Mr Koeppen would sustain an inference that his evidence would not have assisted the other's case. The legal principle is also that the failure enables available inferences to be drawn more confidently. Neither SEA nor CPI sought to explain by evidence why they had not called Mr Koeppen (see West v Government Insurance Office of NSW [1981] HCA 38 ; (1981) 148 CLR 62 at 70), although counsel for SEA did elicit from Mr Cassell that Mr Koeppen had been in Australia shortly before the trial and he had been in contact with him. It seems to me that either party could have called Mr Koeppen, although there may have been problems about requiring his attendance if he had not been willing to give evidence. He is, in a sense, in both SEA's and CPI's camp (to use the term often used in this area of legal discourse) and would have been equally available to both. He has an ongoing commercial relationship, on behalf of the Mill, with CPI. SEO also has an interest in the Mill. There is a division of judicial opinion whether, in circumstances where a witness is equally available to both parties, the principle operates to enable inferences to be drawn against both: see the discussion in AMP Services Ltd v Manning [2006] FCA 256 at [49] and also Built Interiors Pty Ltd v Three Dinosaurs Pty Ltd [2003] NSWCA 290 at [49] . 111 The single most significant fact about which Mr Koeppen could have given evidence was evidence of what Mr Fabrello said at the meeting of 17 June 2003. CPI bears the burden of proving the pleaded statement was made. For reasons discussed later, I am not satisfied it was. However, in my opinion, the principle in Jones v Dunkel does not have a material role to play in this case and, as to that conversation, I would prefer to rest my conclusion on the reasons I gave earlier. 112 CPI submitted that the principle operated more generally, adversely to SEA, and particularly in relation to the issue of whether SEA had made a decision to cut supply to Moore. But again I doubt whether the principle in Jones v Dunkel has a material role to play. The relevant factual issue was the position which had been adopted by SEA by 19 May 2003 in relation to supplying Moore, and what was said by Mr Ellenberg to Mr Cassell about that matter on that day. That particular issue was not a matter about which Mr Koeppen was likely to be able to give evidence beyond giving evidence about the Mill's attitude and contractual obligations. Both of those matters are addressed by contemporaneous records (emails and contracts). 113 SEA filed expert accounting evidence well before the hearing. The expert was Ms Wheatley. At that time no responsive expert accounting evidence was filed by CPI. However, it sought to file such evidence days before the hearing was scheduled to commence. It was allowed to do so. Its expert was Mr Phillips. Ultimately, the two experts conferred and a joint report was prepared, although differences of opinion remained. Somewhat simplified, the experts addressed the question of what a chief financial officer in the position of Mr Akdogan might have gleaned from the financial information provided to him before 26 June 2003. 114 SEA submitted that the purpose of its expert's evidence was not to demonstrate incompetence on the part of Mr Akdogan, but rather to lend weight to the proposition that on the balance of probabilities he and Mr Cassell in fact new that Boomerang would not be able to meet its obligations. CPI challenged the conclusions reached by Ms Wheatley but also submitted that the expert evidence said nothing about the actual knowledge of Mr Akdogan, still less Mr Cassell, and whether they had actual knowledge of the financial position of the Boomerang companies was not a matter for expert evidence.


case_text: However, views can differ about whether evidence is relevant, as is evident from the different approaches of the members of the High Court in Smith v The Queen [2001] HCA 50 ; (2001) 206 CLR 650. Even if the accounting evidence of SEA can be characterised as relevant, in the statutory sense, it appears to me to be evidence caught by s 76(1) of the Evidence Act and not saved by s 79. That is, it is not admissible because it is opinion evidence about the existence of a fact furnished to prove the fact's existence. Ms Wheatley's evidence is, in substance, that Mr Akdogan should have known and is led to prove he did know. For the purposes of s 79 , her field of expertise and specialised knowledge is accounting practices. It is not in the behavioural sciences enabling evidence to be given about how accountants or anyone else might in fact behave in particular circumstances. 118 If I am wrong, and the accounting evidence should be considered in the mix of evidence, it involved no more, at its highest, than an opinion that Mr Akdogan should have had doubts about the Boomerang companies' capacity to meet its obligations under the invoicing agreement. That was Ms Wheatley's view, but not a view shared by Mr Phillips, although he did say that had a reasonably competent chief financial officer had been asked to investigate the invoicing arrangement, further information would have been requested. For the reasons I have given, I am not satisfied, notwithstanding the accounting evidence, that Mr Akdogan or Mr Cassell actually knew of the Boomerang companies' poor trading history and level of indebtedness to SEA at the time the invoicing agreement was made. Also, for those reasons, I am not satisfied that the information in the accounting records (apart from the views expressed by the experts about what they might reveal) which were seen by Mr Akdogan and Mr Cassell alerted them to the trading and general financial position the Boomerang companies were then in, or had been in for the preceding two years or so. 119 CPI alleged SEA engaged in misleading and deceptive conduct or conduct likely to mislead or deceive. The conduct relied upon was three representations and, generally, SEA's failure to disclose the true position concerning the Boomerang companies' trading history and its then current indebtedness, that is, its silence. Two of the representations were made at a meeting on 19 May 2003 and the third at a meeting on 7 June 2003.


case_outcome: discussed

case_text: Another Full Court judgment followed shortly, Warner and Another v Elders Rural Finance Limited and Others (1993) 41 FCR 399 in which Hill J said at 405: 'To that extent, therefore, I would agree with Gummow J in Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31, that the search for a "duty to disclose" might be to digress from the application of the terms of s 52. Certainly I agree, with respect to his Honour, that neither Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 39 FCR 546 nor Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477 ultimately depended upon the existence of a duty and my analysis in Winterton (supra) in fact points to the fact that Henjo (supra), in which the applicant was successful, was what I have labelled "a half-truth case". I would not understand what his Honour said in Demagogue (supra), however, to mean that it was irrelevant that a duty to speak arose, for so to say would be to disapprove the language of Bowen CJ in Rhone-Poulenc and of Lockhart J in Henjo (at 557), both of which passages have been often cited with approval, including by Full Courts of this court: see, for example, Kabwand Pty Ltd v National Australia Bank Ltd [1989] ATPR 50,367. The test adopted by Black CJ, in separate comments, and by Gummow J, with whom Cooper J agreed, in Demagogue , of the need to find a reasonable expectation that silence would be broken before failure to speak is misleading or deceptive, differs little, if at all, from the test I suggested in Winterton when I spoke of "entitlement to expect" or "entitlement to infer". I would not have entered into further discussion of the matter but for the "Editorial Comment" with which Demagogue was published in the CCH report of the judgment (15 ATPR 40,844). That comment suggested that there was some conflict between the judgment of Gummow J in Demagogue and my discussion in Winterton . With respect, I think that the learned authors place too great an emphasis upon the comments made by Gummow J, with respect to the existence of a "duty to disclose". If one accepts the formulation of "reasonable expectation" in Demagogue as a test to be applied, either universally, or, at least, in most cases, the existence of a duty to disclose will still have significance'. 133 The Court of Appeal of Western Australia in Warwick Entertainment Centre Pty Ltd and Another v Alpine Holdings Pty Ltd and Others (2005) 224 ALR 134 at 145, at [45], (per Steytler P with whom McClure and Pullin JJA agreed) said: 'In Demagogue , the court held that conduct may be misleading or deceptive under s 52 if there is a reasonable expectation of disclosure of information and that information is not disclosed: see also Hardy v Your Tabs Pty Ltd (in liq) [2000] NSWCA 150 '. Steytler P then said (at [46]): 'The evidence established, and the trial judge found, that the representations to which I have referred were important to the respondents. That must have been obvious to the appellants, who must consequently have known that the respondents would rely upon them. In these circumstances it was reasonable for the respondents to expect that, if the situation altered [which it did] , they would be told of this [which they were not]' .


case_text: The first part of the submission was common ground, at least as a matter of words. See Diethelm Manufacturing Pty Ltd v Commissioner of Taxation (1993) 44 FCR 450 at 472, Commissioner of Taxation v Chubb Australia Ltd (1995) 56 FCR 557 at 559 and Clean Investments Pty Ltd v Commissioner of Taxation [2001] FCA 80 ; (2001) 105 FCR 248 at [91] . However the parties differed as to what was entailed in the single composite question, and in particular as to the second part of Cascade's submission.


case_text: The first part of the submission was common ground, at least as a matter of words. See Diethelm Manufacturing Pty Ltd v Commissioner of Taxation (1993) 44 FCR 450 at 472, Commissioner of Taxation v Chubb Australia Ltd (1995) 56 FCR 557 at 559 and Clean Investments Pty Ltd v Commissioner of Taxation [2001] FCA 80 ; (2001) 105 FCR 248 at [91] . However the parties differed as to what was entailed in the single composite question, and in particular as to the second part of Cascade's submission. 17 Cascade also sought to derive support from Clean Investments , which concerned a concession for goods "of a kind ordinarily used for household purposes". What was in question was coin operated washing machines. Lindgren J, with whom Lee and Cooper JJ agreed, said at [91]-[93]: "I respectfully agree with Hill J in Diethelm (at 472) ... that it is preferable to pose the statutory question as a single composite question. In some cases it may be misleading to address separately the question of identification of the 'genus' to which the particular goods in question belong, and the question whether that genus meets the description 'ordinarily used for household purposes'. The problem can be indicated by the question 'What kind of kind of goods is the Item speaking of?' Answering the genus question separately as a threshold one will assume, without making explicit, an answer to this question. Goods and purposes can be equally correctly described in different ways, in particular, broadly or narrowly, yet the description selected may dictate the answer to the statutory question. For example, an architect's stool, an office chair and a kitchen stool or chair may be described as 'stools' or 'chairs' and their purpose as being 'to provide seating'. Yet it would be wrong to conclude that the architect's stool or the office chair is of a kind ordinarily used for household purposes for no other reason than that, like the kitchen chair, it is ordinarily used for the purpose of providing seating." (Emphasis in original.) 21 Nor do I think the passage in Clean Investments relied on by Cascade (set out at [17]) discloses any departure from Hygienic Lily . After an elaborate examination of the earlier cases, especially Hygienic Lily (which had not been drawn to the primary judge's attention), Lindgren J distilled the propositions he derived from them. The one preceding the proposition set out at [17] is: "The statutory question is not whether those goods of the taxpayer will in fact be used for household purposes but whether they are goods 'of a kind ordinarily used for household purposes' (Chubb per Hill J (with whom Tamberlin J agreed) at 571; Diethelm per Hill J at 470)." Further, in the second paragraph set out at [17] his Honour identified the existence of two questions. He was not saying there was not two questions, but that in some cases it may be misleading to address them separately.


case_text: In support of the submission at [14] Cascade placed reliance on the observations of Tamberlin J, with whom O'Loughlin J agreed, in Air International Pty Ltd v Chief Executive Officer of Customs [2002] FCA 355 ; (2002) 121 FCR 149 at [53] . Speaking of the words pumps and compressors "of a kind used as replacement components in passenger motor vehicles", his Honour said: "It is helpful to look at actual use, if any, when deciding whether goods are of a kind used as replacement components. Where they are so used, then that points to a conclusion that they are 'of a kind' so used. The words 'of a kind' add a further level of generality to the expression 'used' so that even if (to use the Tribunal's expression) the goods are not so used but are within a range of goods of a type which are used, then they satisfy the required description." This treats the words "of a kind" in item 13 as words of expansion rather than limitation. Air International is a "use" and not a "marketed as" case. However it was said there was no reason why that should make the above passage inapplicable to item 13. 19 In Air International Hill J, dissenting, quoted with approval the decision of the Court of Appeal in Customs and Excise Commissioners v Mechanical Services (Trailer Engineers) Ltd [1979] 1 WLR 305, to which Gummow J had referred in Hygienic Lily . The question in the English case was whether couplings and winches were to be classified for value added tax purposes as "Goods of a kind suitable for use as parts of goods within item 1 or item 5". Hill J said at [28]: "Brown LJ held that the words 'goods of a kind' referred to some class or category or genus of goods which had characteristics in common. That holding is generally consistent with the Australian sales tax cases referred to in Clean Investments." Hill J then quoted with approval this passage from Megaw LJ's judgment (at 316-317): "It is not 'the goods' the particular articles, here the couplings and the winch which have to be suitable for use as parts. It is the kind of goods to which these particular articles belong, their genus, which has to be thus suitable. The addition of 'of a kind', would be meaningless if goods which are themselves suitable are necessarily also goods of a kind which is suitable. The question is, first, what is the relevant 'kind of goods' of which they are members; and, secondly, is that kind of goods generically, suitable for use as parts of the goods comprised in items 1 and 5 of Group 3." 20 I doubt that there is any real difference between the cases upon which the parties based their respective approaches to the construction of item 13. In Air International , before the passage set out at [16], Tamberlin J quoted at [47] from Hygienic Lily the passage appearing at [18], introducing it at [46]-[47] with the words: "In answering the question [whether the fans etc are goods 'of a kind used as replacement components'], it is necessary to construe the quoted expression as a whole. The intent or purpose of the manufacturer or importer is not the criterion to be applied. Nor is it necessary that the goods should in fact have been used or be used as replacement components. It is sufficient if they are 'of a kind' which can be so used. That is to say, if they come within the genus of 'goods used as replacement components'. In order to determine whether the goods are within that genus, it is necessary to examine the 'nature quality and adaptation of the goods in the class': see Gummow J in Hygienic Lily ...." When Tamberlin J went on to say, in the passage relied on by Cascade (set out at [16]), that it is helpful to look at actual use when deciding whether goods are 'of a kind' used in a particular way, because when they are so used, that points to a conclusion that they are 'of a kind' so used, his Honour was not, in my view, intending to depart from the approach mandated by the words of item 13 or that appearing in Hygienic Lily . He was simply saying that the answer to whether goods are of a kind used in a particular way may, depending on the circumstances, be assisted by looking at how they have in fact been used. 61 It will be apparent from what I have said at [46] to [60] that I have initially approached the "of a kind" issue in accordance with Cascade's submission recorded at [14]. The submission derives support from what two members of the Full Court said in Air International . See [16]. On this approach Ultra-C was not principally marketed, in the sense of mainly, chiefly, predominantly or preponderantly, as food for infants, giving that word the meaning appearing at [34]. 62 Obviously Cascade's "of a kind" formulation is more advantageous to it than the Commissioner's, because it focuses on its own marketing of Ultra-C. On the Commissioner's approach, Cascade's case more clearly fails. The genus to which Ultra-C belongs is in my view either cordials or blackcurrant concentrated syrups, including in either case Ribena and Bickford's. That group of products does not fall within item 13 (findings (p), (q) and (r)). Accordingly, nor does Ultra-C. If, contrary to my view, Cascade's fall-back genus submission is sound namely that Ultra-C is a genus of its own its case fails because of what I have said at [61]. 63 On the approach I have suggested at [22], Cascade's marketing of Ultra-C shows that the product is not of a kind marketed principally as food for infants.


case_text: The Commissioner sought to derive support for his contention from Hygienic Lily Ltd v Commissioner of Taxation (1987) 13 FCR 396. The question there was whether waxed paper cups used by McDonald's Restaurants were "goods ... of a kind ordinarily used for household purposes". Gummow J at 399 said: "the setting in which the phrase 'goods of a kind' appears suggests it is directed not to the use for which the particular goods in question were designed or manufactured, nor to the purpose to which it is intended these particular goods shall be put, but rather to the nature, quality and adaptation of goods in the class or genus in question. Thus, goods are 'of a kind ordinarily used for household purposes' if they are to be recognised as members of a class or genus which commonly or regularly (albeit not necessarily exclusively or principally) is used for household purposes; cf Customs and Excise Commissioners v Mechanical Services (Trailer Engineers) Ltd (1979) 1 WLR 305, at 312-313, 315, 316-317." At 400 his Honour pointed out that other items in the Schedule there in question directed attention not to goods identified by the purposes for which goods of that kind are ordinarily used, but to the goods in question themselves or to the identity or character of a particular user. He concluded that the cups were of a kind ordinarily used for household purposes because they were "members of a class or genus (paper cups) which commonly or regularly (albeit not necessarily exclusively or principally) was used for household purposes (viz the carrying of beverages and the consumption thereof)". 19 In Air International Hill J, dissenting, quoted with approval the decision of the Court of Appeal in Customs and Excise Commissioners v Mechanical Services (Trailer Engineers) Ltd [1979] 1 WLR 305, to which Gummow J had referred in Hygienic Lily . The question in the English case was whether couplings and winches were to be classified for value added tax purposes as "Goods of a kind suitable for use as parts of goods within item 1 or item 5". Hill J said at [28]: "Brown LJ held that the words 'goods of a kind' referred to some class or category or genus of goods which had characteristics in common. That holding is generally consistent with the Australian sales tax cases referred to in Clean Investments." Hill J then quoted with approval this passage from Megaw LJ's judgment (at 316-317): "It is not 'the goods' the particular articles, here the couplings and the winch which have to be suitable for use as parts. It is the kind of goods to which these particular articles belong, their genus, which has to be thus suitable. The addition of 'of a kind', would be meaningless if goods which are themselves suitable are necessarily also goods of a kind which is suitable. The question is, first, what is the relevant 'kind of goods' of which they are members; and, secondly, is that kind of goods generically, suitable for use as parts of the goods comprised in items 1 and 5 of Group 3." 20 I doubt that there is any real difference between the cases upon which the parties based their respective approaches to the construction of item 13. In Air International , before the passage set out at [16], Tamberlin J quoted at [47] from Hygienic Lily the passage appearing at [18], introducing it at [46]-[47] with the words: "In answering the question [whether the fans etc are goods 'of a kind used as replacement components'], it is necessary to construe the quoted expression as a whole. The intent or purpose of the manufacturer or importer is not the criterion to be applied. Nor is it necessary that the goods should in fact have been used or be used as replacement components. It is sufficient if they are 'of a kind' which can be so used. That is to say, if they come within the genus of 'goods used as replacement components'. In order to determine whether the goods are within that genus, it is necessary to examine the 'nature quality and adaptation of the goods in the class': see Gummow J in Hygienic Lily ...." When Tamberlin J went on to say, in the passage relied on by Cascade (set out at [16]), that it is helpful to look at actual use when deciding whether goods are 'of a kind' used in a particular way, because when they are so used, that points to a conclusion that they are 'of a kind' so used, his Honour was not, in my view, intending to depart from the approach mandated by the words of item 13 or that appearing in Hygienic Lily . He was simply saying that the answer to whether goods are of a kind used in a particular way may, depending on the circumstances, be assisted by looking at how they have in fact been used. 21 Nor do I think the passage in Clean Investments relied on by Cascade (set out at [17]) discloses any departure from Hygienic Lily . After an elaborate examination of the earlier cases, especially Hygienic Lily (which had not been drawn to the primary judge's attention), Lindgren J distilled the propositions he derived from them. The one preceding the proposition set out at [17] is: "The statutory question is not whether those goods of the taxpayer will in fact be used for household purposes but whether they are goods 'of a kind ordinarily used for household purposes' (Chubb per Hill J (with whom Tamberlin J agreed) at 571; Diethelm per Hill J at 470)." Further, in the second paragraph set out at [17] his Honour identified the existence of two questions. He was not saying there was not two questions, but that in some cases it may be misleading to address them separately.


case_text: The Commissioner sought to derive support for his contention from Hygienic Lily Ltd v Commissioner of Taxation (1987) 13 FCR 396. The question there was whether waxed paper cups used by McDonald's Restaurants were "goods ... of a kind ordinarily used for household purposes". Gummow J at 399 said: "the setting in which the phrase 'goods of a kind' appears suggests it is directed not to the use for which the particular goods in question were designed or manufactured, nor to the purpose to which it is intended these particular goods shall be put, but rather to the nature, quality and adaptation of goods in the class or genus in question. Thus, goods are 'of a kind ordinarily used for household purposes' if they are to be recognised as members of a class or genus which commonly or regularly (albeit not necessarily exclusively or principally) is used for household purposes; cf Customs and Excise Commissioners v Mechanical Services (Trailer Engineers) Ltd (1979) 1 WLR 305, at 312-313, 315, 316-317." At 400 his Honour pointed out that other items in the Schedule there in question directed attention not to goods identified by the purposes for which goods of that kind are ordinarily used, but to the goods in question themselves or to the identity or character of a particular user. He concluded that the cups were of a kind ordinarily used for household purposes because they were "members of a class or genus (paper cups) which commonly or regularly (albeit not necessarily exclusively or principally) was used for household purposes (viz the carrying of beverages and the consumption thereof)". 19 In Air International Hill J, dissenting, quoted with approval the decision of the Court of Appeal in Customs and Excise Commissioners v Mechanical Services (Trailer Engineers) Ltd [1979] 1 WLR 305, to which Gummow J had referred in Hygienic Lily . The question in the English case was whether couplings and winches were to be classified for value added tax purposes as "Goods of a kind suitable for use as parts of goods within item 1 or item 5". Hill J said at [28]: "Brown LJ held that the words 'goods of a kind' referred to some class or category or genus of goods which had characteristics in common. That holding is generally consistent with the Australian sales tax cases referred to in Clean Investments." Hill J then quoted with approval this passage from Megaw LJ's judgment (at 316-317): "It is not 'the goods' the particular articles, here the couplings and the winch which have to be suitable for use as parts. It is the kind of goods to which these particular articles belong, their genus, which has to be thus suitable. The addition of 'of a kind', would be meaningless if goods which are themselves suitable are necessarily also goods of a kind which is suitable. The question is, first, what is the relevant 'kind of goods' of which they are members; and, secondly, is that kind of goods generically, suitable for use as parts of the goods comprised in items 1 and 5 of Group 3."


case_text: It was common ground that the word "infants" in item 13 is to be given its ordinary meaning. That meaning is to be determined by considering the word in its context with the assistance of dictionaries and other books, and not by expert evidence: Telstra Corporation Ltd v Commissioner of Taxation (1996) 68 FCR 566 at 570. 28 Cascade's submission is that in item 13 the ordinary meaning of infant includes any child up to seven years of age. It relies on several dictionary definitions. Australian Oxford : "1 a. a child during the earliest period of its life. b. a schoolchild in the first years of school." The Oxford English Dictionary : "1 a. A child during the earliest period of life (or still unborn); now most usually applied to a child in arms, a babe; but often extended to include any child under seven years of age." The Penguin Pocket Dictionary : "1. in an early stage of development. 2. concerned with or intended for young children, esp those aged 5 to 7 or 8." 29 Cascade also relies on Macquarie's definition of "'infants' school": "a school, or classes attached to a primary school, for children from about five to eight years of age. Also, 'infant school'." 37 At least implicitly Cascade characterises the meaning I prefer as a narrow construction. It relies on cases which it says establishes that the classification of goods attracting exemptions (eg for sales tax purposes) should be liberally construed unless the text or context requires a narrow construction: Diethelm at 464; Telstra at 569; IGY Manufacturing Pty Ltd v Commissioner of Taxation (1999) 42 ATR 544 at [14]. In Diethelm at 464 French J said: "Classifications of goods attracting exemptions or beneficial rates should be liberally construed unless the text or context requires a narrow construction."


case_text: The first part of the submission was common ground, at least as a matter of words. See Diethelm Manufacturing Pty Ltd v Commissioner of Taxation (1993) 44 FCR 450 at 472, Commissioner of Taxation v Chubb Australia Ltd (1995) 56 FCR 557 at 559 and Clean Investments Pty Ltd v Commissioner of Taxation [2001] FCA 80 ; (2001) 105 FCR 248 at [91] . However the parties differed as to what was entailed in the single composite question, and in particular as to the second part of Cascade's submission. 37 At least implicitly Cascade characterises the meaning I prefer as a narrow construction. It relies on cases which it says establishes that the classification of goods attracting exemptions (eg for sales tax purposes) should be liberally construed unless the text or context requires a narrow construction: Diethelm at 464; Telstra at 569; IGY Manufacturing Pty Ltd v Commissioner of Taxation (1999) 42 ATR 544 at [14]. In Diethelm at 464 French J said: "Classifications of goods attracting exemptions or beneficial rates should be liberally construed unless the text or context requires a narrow construction." 38 Totalizator Agency Board v Commissioner of Taxation (1996) 69 FCR 311 concerned a sales tax exemption (item 126) for "goods for use by ... an authority that is completely controlled by an Australian government ...". After referring to the passage from Diethelm set out at [37], and a line of cases French J "may well [have] had in mind", Hill J, with whom Tamberlin and Sundberg JJ agreed, said at 322-323: "Not all of the cases referred to can necessarily be taken as endorsing the proposition.... But be that as it may, the passages cited all stand for the following unexceptionable proposition. Where Parliament has enacted legislation to encourage a particular activity, for example legislation which gives particular concessions to the mining industry, the legislation must be construed so as to promote Parliament's purpose and not so as to detract from that purpose. Some items contained in Schedule 1 to the Exemptions and Classifications Act may fall within this rule in that the government has granted exemptions from sales tax in the course of seeking to encourage a specific industry.... But it can hardly be said that an item such as Item 126 is there to encourage any particular activity so that a construction should be given to it consonant with its purpose to promote that activity. Item 126 merely confers exemptions upon a particular kind of body, namely an Australian government or a statutory authority meeting certain tests. Parliament's purpose was to exempt from sales tax goods for use by these bodies. But Parliament's purpose is promoted by construing the exemption item in accordance with its ordinary meaning, not by seeking to give it a particular meaning favourable to the government or authority referred to in it. In my view, there is no general principle of construction that requires items in the Exemptions and Classifications Act to be given a benevolent interpretation in favour of persons or bodies referred to in the Schedule. Rather, each of the items is to be given its ordinary meaning in accordance with ordinary principles of interpretation, save where it is clear that the purpose of the government providing an exemption was to afford encouragement to a particular industry or activity." His Honour then referred to a passage in Diethelm at 457, in which French J "recognised the significance of the purpose of the relevant exempting item in applying this principle".


case_text: At least implicitly Cascade characterises the meaning I prefer as a narrow construction. It relies on cases which it says establishes that the classification of goods attracting exemptions (eg for sales tax purposes) should be liberally construed unless the text or context requires a narrow construction: Diethelm at 464; Telstra at 569; IGY Manufacturing Pty Ltd v Commissioner of Taxation (1999) 42 ATR 544 at [14]. In Diethelm at 464 French J said: "Classifications of goods attracting exemptions or beneficial rates should be liberally construed unless the text or context requires a narrow construction."


case_text: Totalizator Agency Board v Commissioner of Taxation (1996) 69 FCR 311 concerned a sales tax exemption (item 126) for "goods for use by ... an authority that is completely controlled by an Australian government ...". After referring to the passage from Diethelm set out at [37], and a line of cases French J "may well [have] had in mind", Hill J, with whom Tamberlin and Sundberg JJ agreed, said at 322-323: "Not all of the cases referred to can necessarily be taken as endorsing the proposition.... But be that as it may, the passages cited all stand for the following unexceptionable proposition. Where Parliament has enacted legislation to encourage a particular activity, for example legislation which gives particular concessions to the mining industry, the legislation must be construed so as to promote Parliament's purpose and not so as to detract from that purpose. Some items contained in Schedule 1 to the Exemptions and Classifications Act may fall within this rule in that the government has granted exemptions from sales tax in the course of seeking to encourage a specific industry.... But it can hardly be said that an item such as Item 126 is there to encourage any particular activity so that a construction should be given to it consonant with its purpose to promote that activity. Item 126 merely confers exemptions upon a particular kind of body, namely an Australian government or a statutory authority meeting certain tests. Parliament's purpose was to exempt from sales tax goods for use by these bodies. But Parliament's purpose is promoted by construing the exemption item in accordance with its ordinary meaning, not by seeking to give it a particular meaning favourable to the government or authority referred to in it. In my view, there is no general principle of construction that requires items in the Exemptions and Classifications Act to be given a benevolent interpretation in favour of persons or bodies referred to in the Schedule. Rather, each of the items is to be given its ordinary meaning in accordance with ordinary principles of interpretation, save where it is clear that the purpose of the government providing an exemption was to afford encouragement to a particular industry or activity." His Honour then referred to a passage in Diethelm at 457, in which French J "recognised the significance of the purpose of the relevant exempting item in applying this principle". 39 Cascade contends that unlike the exemption in Totalizator , item 13 is not directed at a particular body or person, but provides an exemption from GST to particular beverages which are marketed principally as food for infants. It should therefore be implied that item 13 is intended to protect those products, so that the liberal construction principle should apply. 40 The reason for the qualified exemption of food from GST is well known, and was common ground. It was the political compromise reached in order that the GST scheme might become law. The distinction drawn in Totalizator between an exemption directed at a particular person or body and one that encourages a particular activity is applicable here. It is true, as Cascade says, that item 13 is not directed at a particular person or body. But nor is it concerned to encourage any particular activity. It is not intended to encourage the production of beverages or ingredients of any kind. It was the result of a political deal that gave partial exemption to food. In the case of the beverage component of food, the result was that the beverage or an ingredient therefore would be exempt if it was of a kind marketed principally as food for infants or invalids. In accordance with Totalizator , there is no occasion to approach the meaning of "infant" or "invalids" in any manner other than by according the words their ordinary meaning. 41 Cascade pointed out that item 68 of Sch 1 to the Sales Tax (Exemptions and Classifications) Act 1992 exempted food for human consumption. Beverages were excluded from the exemption except for, amongst others: "(b) ... (i) beverages of a kind marketed principally as food for infants or invalids; ... (c) goods of a kind marketed principally as ingredients for beverages covered by paragraph (b)." 42 Cascade also relied on the exemption in item 149 of, inter alia, "booster seats ... designed for use exclusively for carrying infants". In this connection it drew attention to Victorian Sales Tax Office Ruling No 2543: "We had some doubts whether the booster seats are designed for use in carrying infants or older children but in view of the broad dictionary meaning of infant eg children under seven years of age, this condition is considered to be satisfied."


case_text: In R v O'Sullivan; Ex parte Clarke [1967] WAR 168, the Full Court of the Supreme Court of Western Australia found that a delay in filing an application for a writ of certiorari, issued more than three months after the Court's decision, was regarded as substantial and ' an important factor in the exercise of the court's decision to refuse relief... ' In Ansell v Wells and Others (1982) 63 FLR 127 Lockhart J at page 156 said '[d]elay, coupled with prejudice to the defendant or a third party, may debar a plaintiff from discretionary relief. ' In Re David Smith and The West Australian Development Corporation; Ex parte Rundle and Others (1992) 5 WAR 295 Malcolm CJ, delivering the judgment of the Full Court observed in relation to the time limit prescribed by the Rules of the Supreme Court of Western Australia: 'The time limit in O 65, r 11(1) of six months has its justification in the need to act promptly in relation to proceedings to quash the decision of an inferior court or tribunal. Great inconvenience could be caused by permitting the decision to stand and allowing people to act on the assumption that the decision was valid. The six months time limit was introduced in England in 1740 by the statute 13 GeoII, c 18 s 5 which provided that no certiorari should issue for the removal of orders made by justices of the peace after six months. The court had no discretion to extend time: see R v Anglesea Justices (1846) 10 Jur 817. The 1740 statute was repealed by the Statute Law Revision Act 1888 . The court has an express power to extend the time under the rule. In my opinion it is, at the least, extremely doubtful whether the rule applies to decisions of bodies or persons other than inferior courts or statutory tribunals. If it does not, the rule would not apply to a decision such as that made by the minister in the present case. Even if the rule does not apply, however, the nature of the remedy of certiorari is such that the court would require it to be sought promptly.'


case_text: PCR claims that such finding was critical in the chain of reasoning which led to ABA's decision, and relies upon the decision of the Full Court in Curragh Queensland Mining Limited v Daniel and Others (1992) 34 FCR 212 (especially at 220-221). It submits that there was no evidence upon which ABA could have reached its decision and it is therefore invalid according to the principles referred to in Australian Broadcasting Tribunal v Bond and Others [1990] HCA 33 ; (1990) 170 CLR 321 and in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40 ; (1986) 162 CLR 24. 71 The approach to be adopted in cases of judicial review was also explained by the High Court of Australia in Australian Broadcasting Tribunal v Bond and Others where the Court said at [341]: 'The expression "judicial review", when applied to the traditional review functions of the superior courts in our system of justice, exercisable by means of the prerogative writs and the grant of declaratory relief and injunction, ordinarily does not extend to findings of fact as such. To expose all findings of fact, or the generality of them, to judicial review would expose the steps in administrative decision-making to comprehensive review by the courts and thus bring about a radical change in the relationship between the executive and judicial branches of government. Amongst other things, such a change would bring in its train difficult questions concerning the extent to which the courts should take account of policy considerations when reviewing the making of findings of fact and the drawing of inferences of fact.' 93 Mason CJ in Australian Broadcasting Tribunal v Bond and Others referred to grounds of review in circumstances where there is no evidence to support a finding. He referred to the ' no sufficient evidence ' test in the context of judicial review of findings of fact and stated at page 356: 'Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference in other words, the particular inference is reasonably open even if that inference appears to have been drawn as a result of their illogical reasoning, there is no place for judicial review because no error of law has taken place.' 94 Although some letters were written prior to the incorporation of GCB, and others were from persons who were legally still 'members' of NCB, I do not think that this fact leads to the conclusion that there was no evidence upon which the ABA could rely in relation to the letters. There was no legal requirement that only members of GCB could support GCB's application. The letters were provided by persons who wished to support the service, and whether they were actually 'members' of GCB was not a critical matter for determination. 95 I consider that the ABA was correct in considering that the letters that it had received indicated widespread support for GCB's proposed service. Accordingly, the ABA did not err as alleged by PCR.


case_text: The High Court in Brisbane South Regional Health Authority v Taylor [1996] HCA 25 ; (1996) 186 CLR 541 considered the Limitation of Actions Act 1974 (Qld) and held that where an applicant sought an extension of time in which to bring proceedings it was necessary to show that prejudice would not result to the other party. McHugh J referred to the need to limit the time in which actions should be brought (see 552-553). McHugh J observed at 555 that a plaintiff's claim is: '... seldom likely to be strong enough to warrant a Court reinstating a right of action against the defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of that action.'


case_text: If the Court is satisfied that the ABA has misdirected itself in law or has failed to consider matters that it was required to consider, or taken irrelevant matters into consideration, its decision will have miscarried: see Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 (at 118-119 per Gibbs J). However, the failure of a decision maker to take into account an insignificant matter may not warrant a Court setting aside the decision: see Minister for Aboriginal Affairs and Anor v Peko-Wallsend Limited and Ors at 40. If the Court should conclude that there is inadequate factual material to support a finding by the ABA, it could lead to the inference that the Tribunal has applied a wrong test or has not otherwise satisfied the requisite matters which it was obliged to consider under s 84(2) of the Act: see The Queen v Australian Stevedoring Industry Board and Another: Ex parte Melbourne Stevedoring Company Proprietary Limited [1953] HCA 22 ; (1953) 88 CLR 100 at 120. In Minister for Immigration and Multicultural Affairs v Rajamanikkam and Another [2002] HCA 32 ; [2002] 210 CLR 222, Gaudron and McHugh JJ said at page 241: 'Whether a decision would or would not have been made without a particular factual finding depends on indications to that effect in the decision, the reasons for decision or the decision making process. And unless it is possible to say on a proper analysis of the decision, the reasons for decision or the decision making process that, had a particular finding not been made, the decision in question would not have been reached, it is, in our view, impossible to say that the decision was based on that finding.'


case_text: Upon reading the whole of the challenged decision, a Court must be satisfied that the Tribunal applied its mind to the correct issues, and decided those issues by findings based on evidence or material which was reasonable. In Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 the Court said at 287: 'The Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts: Lennell v Repatriation Commission (1982) 4 ALN N 54 (Northrop and Sheppard JJ); Freeman v Defence Force Retirement and Death Benefits Authority (1985) 5 AAR 156 at 164 (Sheppard J); Repatriation Commission v Bushell (1991) 13 AAR 176 at 183 (Morling and Neaves JJ). The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Politis v Commissioner of Taxation (Cth) (1988) 16 ALD 707 at 708 (Lockhart J).'