case_text: Read in isolation, and if one were to regard the Tribunal as having a view that satisfaction as to refugee status could only be achieved in the event of a threat to life, there would be very serious concern indeed that the Tribunal had misunderstood the basis upon which satisfaction as to a person's being a person to whom Australia owed protection obligations existed. So reading a Tribunal or, for that matter, any administrator's reasons is something one must not do as a judicial officer. As Brennan CJ and Toohey, McHugh and Gummow JJ, remarked in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at page 272, the proposition that a court should not be concerned with looseness in the language nor with the unhappy phrasing of the reasons an administrative decision maker is well settled: They recognise the reality that the reasons of an administrative decision maker are meant to inform and not to be scrutinised upon overzealous judicial reviews by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. 16 It is always important to read a Tribunal's reasons in the context in which they came to be given. In this case and in this context, it must be recalled that the reasons of the Tribunal are responsive to a claim for a protection visa put on the basis that the male Appellant's life was at risk. There are other passages in the Tribunal's reasons also found at page 214 of the Appeal Book which serve to demonstrate that the Tribunal was under no misapprehension that a protection obligation under the Convention could only arise if an Applicant's life were at risk. Without intending to be exhaustive, I cite the following passages: On the basis of the credible evidence before it, the Tribunal cannot be satisfied that any harm experienced by the applicant [the male appellant] at this time were sufficiently serious as to constitute persecution. Moreover, the Tribunal does not accept that the applicant experienced ongoing threats to his life or any other form of persecution on a continuing basis after the elections and up until the time of his departure in April 2007. Nor does it accept that he would be at risk of ongoing harm if he were to return to India now or in the reasonably foreseeable future. 17 Then in the sentence which immediately follows, the one which I have earlier in isolation cited, one sees the following: Nor is there any evidence to suggest that the applicant would face harm amounting to persecution simply as a member of the Shiv Sena or the VHP without more.


case_outcome: cited

case_text: In reaching these conclusions, the Tribunal has made a value judgment based on its assessment of the credibility of the claim for a protection visa advanced by the appellants. As it happens, and having regard to inconsistencies which it highlighted, the Tribunal did not accept the claim advanced. The Tribunal's reasons for so doing are logical. As the learned Federal Magistrate observed at para 30 of her Honour's reasons for judgment by reference to what had been said in Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1 ; (2000) 74 ALJR 405 at [67] , credibility is a matter for the Tribunal "par excellence", and the Tribunal's findings were open to it for the reasons it gave on the material before it. 19 There is then, in my opinion, no substance in ground 2. 20 These conclusions are themselves enough to dispose of the appeal. However, it is desirable that attention be drawn to a further passage which appears in the Tribunal's reasons at Appeal Book page 214. The Tribunal there states: The Tribunal does not accept the applicant's I interpolate, the male Appellant's claim that the police refused to protect him because of the influence of his enemy. The independent information which the Tribunal accepts, overwhelmingly supports the conclusion that the police in Gujarat favour the BJP. The Tribunal is satisfied that if the applicant had, in the past, been unable to obtain help from the police, or from his party leaders, it is because any difficulties he had were too trivial. The Tribunal is satisfied that were he to suffer serious harm, or threat of harm amounting to persecution, the state authorities would provide effective protection.


case_outcome: related

case_text: is an application for an extension of time in which to file and serve a notice of appeal from a judgment of the Federal Magistrates Court delivered on 13 June 2006 ( SZHKU & Ors v Minister for Immigration & Multicultural Affairs & Anor [2006] FMCA 842). The explanation for delay, which is not very great, is acceptable and, indeed, I do not think there is any serious dispute about it. However, for leave to be granted the applicants must also establish that there is a notice of appeal in proper form to file and that it discloses at least some argument with a possible chance of success on appeal. That is the difficulty for these applicants. They are unrepresented and, as has been mentioned in the course of oral submissions today, that means that they have difficulty in understanding and expressing their situation as required. The draft notice of appeal which is put forward, and the affidavit which refers to it, is a hotchpotch of statements of some relevance to migration decisions generally, but with no independent application to this case and, indeed, the statements are incomprehensible. I have read the learned Federal Magistrate's decision. It is apparent that the application for judicial review to that court, seeking relief in relation to a decision of the Refugee Review Tribunal, was also not in proper form. However, in addition to dealing with the stated grounds, which were rather inapt to raise any significant question, the learned Federal Magistrate went on to examine issues that may have been implied in those grounds or which might arise out of the Tribunal's decision in the case. In other words, it seems to me that Scarlett FM took pains to ensure that all possible arguments were considered. There is no appealable error in those reasons which is identified in the draft notice of appeal put forward here. I drew the attention of the applicants to the problem they faced. Not unnaturally, because they were unrepresented, they were not really able to advance the situation. The oral submissions were really an appeal to the merits of the case and also endeavoured to draw attention to the current situation in Fiji which would, of course, only be relevant if there were any appealable ground to set aside the earlier decisions. Whilst one may have considerable personal sympathy for the applicants and, particularly, the young lady who has spoken today, I regret to say that, from the legal point of view, the case is absolutely hopeless and it is not appropriate to burden the respondent and the Court with a hopeless appeal. Under the circumstances the application for an extension of time is dismissed. The second applicant is to pay the costs of the respondent. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 7 November 2006 The Applicants appeared in person Counsel for the Respondent: Mr T Reilly Solicitor for the Respondent: Phillips Fox Date of Hearing: 1 November 2006 Date of Judgment: 1 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1450.html


case_text: circumstances which I have described in two previous judgments delivered by me ( Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No 2) [2009] FCA 17 ; (2009) 253 ALR 324 , [2009] ATPR 42-274 and Allphones Retail Pty Limited v Australian Competition and Consumer Commission [2009] FCA 980) , on 29 August 2008, by Notice of Dispute dated that day ( the Notice of Dispute ), Allphones commenced a dispute resolution process with approximately ninety of its franchisees with whom it was then in dispute.


case_text: Notice of Dispute expressly referred to proceedings NSD 408 of 2008 and to the Hoy Mobile proceedings which had been decided by Rares J in May 2008 (as to which see Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (No 2) (2008) ATPR 42-240). In the Notice of Dispute, Allphones also mentioned the prospect that the ACCC might bring proceedings against it pursuant to s 87(1B) of the Trade Practices Act 1974 (Cth) ( the Act ). Those foreshadowed proceedings have now been commenced (NSD 869 of 2009). Allphones made quite clear in the Notice of Dispute that it was seeking to resolve all of the issues raised in all of the proceedings to which it made reference in that document. In the Notice of Dispute, Allphones said that the dispute resolution process was being undertaken pursuant to cl 24 of its old Franchise Agreement and Pt 4 of the Franchising Code of Conduct. Allphones proposed a process of negotiation followed by a mediation, if necessary. At the end of cl 5 of the Notice of Dispute, Allphones said: Allphones will invite the ACCC to participate in the mediation. If the ACCC chooses not to do so, Allphones will keep the ACCC informed of the progress of the mediation. Allphones proposed that Mr Fitzgerald QC be appointed to act as the mediator should mediation be required.


case_text: circumstances which I have described in two previous judgments delivered by me ( Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No 2) [2009] FCA 17 ; (2009) 253 ALR 324 , [2009] ATPR 42-274 and Allphones Retail Pty Limited v Australian Competition and Consumer Commission [2009] FCA 980) , on 29 August 2008, by Notice of Dispute dated that day ( the Notice of Dispute ), Allphones commenced a dispute resolution process with approximately ninety of its franchisees with whom it was then in dispute. In Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No 2) [2009] FCA 17 ; 253 ALR 324 , [2009] ATPR 42-274, I dealt with an application for interlocutory injunctive relief made by the ACCC against Allphones in proceedings NSD 1567 of 2008. At [32] [58] of that judgment, I described certain events leading up to the service of the Notice of Dispute. That description was based upon the evidence before me for the purposes of the application with which I was then dealing and, to some extent, may be controversial. But, allowing for these limitations, the description which I gave in those paragraphs of that judgment is a useful starting point for placing the Notice of Dispute into an appropriate context. Accordingly, I incorporate those paragraphs into these Reasons in order to provide some detail of the context in which the Notice of Dispute came to be issued. The Notice of Dispute was issued pursuant to the Franchising Code of Conduct and the contractual arrangements then in existence between Allphones and the franchisees upon whom it was served ( the eligible franchisees ). It was served upon all of Allphones existing franchisees who were not operating under its new Franchise Agreement or who had not released Allphones from past breaches of its old Franchise Agreement. The sending of the Notice of Dispute commenced a dispute resolution process in accordance with the provisions of the Franchising Code of Conduct and the contractual arrangements between Allphones and the eligible franchisees. The dispute resolution process commenced in this fashion was, if necessary, intended to culminate in a mediation. In the Notice of Dispute, Allphones raised ten issues to be addressed by negotiation and mediation with the eligible franchisees. The main issues may be conveniently grouped into four broad categories:


case_text: the present case, Allphones put in train a formal dispute resolution process which involved negotiations with its disaffected franchisees and, if necessary, a formal mediation. In order to make that process worthwhile, at the time when the process commenced (viz on 29 August 2008), Allphones promised that it would provide relevant financial information to those parties with whom it was in dispute in order to facilitate those negotiations and that mediation. It was quite prepared to obtain and to provide to its franchisees an investigating accountant's report in respect of all of the critical matters in dispute. This was contemplated in the Notice of Dispute itself which, of course, was created and served approximately five or six weeks before the undertakings were given to the Court on 9 October 2008. A fair appreciation of the relevant events is that the two BDO reports were always intended to be part of the dispute resolution process and that Allphones had probably always intended to use them in support of contentions which it would make in the various Statements of Position served by it as to the quantum of the levies, charges, fines, bonuses, rebates and other payments in dispute. At common law, documents produced for the purposes of such negotiations attracted without prejudice privilege (see Rabin v Mendoza & Co [1954] 1 All ER 247, [1954] 1 WLR 271 ; and Bailey v Beagle Management Pty Limited [2001] FCA 185 at [14] [16]).


case_text: statements were referrable to the common law position. That position may have been extended by s 131 of the Evidence Act although there is a difference of opinion on this question emerging in the authorities. In this Court, in Brown v Federal Commissioner of Taxation (2002) 119 FCR 269 at [99], a Full Court expressed the tentative view that the expression "... in connection with an attempt to negotiate the settlement of a dispute ", as it appears in s 131 , appears to extend the scope of the common law privilege.


case_outcome: followed

case_text: views expressed by Jacobson J are in line with those of Campbell J of the Supreme Court of New South Wales. In CJ Redman Constructions Pty Ltd v Tarnap Pty Ltd [2006] NSWSC 173 , his Honour said (at [5] [7]): It will be apparent that the letter alludes to there being settlement discussions on foot, but gives no detail of those settlement discussions, and, most importantly, does not involve the writer of the letter either making an admission on behalf of his client concerning the matter of the settlement discussion, or attributing any admission to the recipient of the letter. While the letter alludes to it having been the addressee of the letter who had " indicated the possibility of a global resolution to all outstanding matters ", I do not see that as involving any admission it is possible for a person to want to resolve a dispute which he or she regards as totally unmeritorious. The letter is one which one would not be within the rationale of the common law concerning legal professional privilege. That rationale is that people should be free to explore settlement of disputes, and make admissions in the course of those discussions, safe in the knowledge that any admissions which they make will not be tendered against them later in Court, if the negotiations break down. The wording of section 131(1) is capable, on one reading of the expression " in connection with ", of extending wider than did the common law. There is, in one sense of it, a connection between this letter and the settlement negotiations, because the letter talks about the settlement negotiations. However, the expression " in connection with ", while sometimes capable of referring to a connection of any kind between two subject matters, does not always have that reference: cf Wonall Pty Ltd v Clarence Property Corporation Ltd [2003] NSWSC 497 ; [2003] 58 NSWLR 23 at 44-45. It is necessary to look to the context in which the expression occurs to determine its particular meaning, in that particular context. In the particular context of section 131 , it seems to me that the expression "in connection with" does not extend to any connection of any kind whatever. Rather, the expression needs to be construed by reference to the purpose of the without prejudice privilege. I see no basis for concluding that the rationale of the without prejudice privilege under section 131 of the Evidence Act is any different to the common law. There are some exceptions to the privilege, in section 131(2) , which go wider than the exceptions to the privilege at common law, but I see no basis for concluding that the fundamental prohibition contained in section 131(1) has any different rationale to the common law on the topics. The ACCC did not suggest that it could invoke any of the exceptions to the operation of s 131(1) specified in s 131(2). The ACCC's sole submission was that the copy of the first BDO report furnished to it on 26 September 2008 was not protected by s 131(1) because it was provided for mixed purposes, one of which was for use in the litigation between the ACCC and Allphones in this Court. This submission ignores the terms of the Phillips Fox letters of 17 and 26 September 2008 and the terms of the Notice of Dispute itself. In the first of those letters, Phillips Fox deferred any commitment to the proposition that the report could be used for the purposes of that litigation. In the second of those letters, Phillips Fox made quite clear that it was not prepared to accede to the request made by Corrs that Allphones agree that the report be able to be admitted into evidence in the litigation in this Court. It restricted the use to the dispute resolution process then under way and requested that the documents be treated as " confidential and without prejudice ". In CJ Redman Constructions Pty Ltd [2006] NSWSC 173 , Campbell J focussed particularly on the rationale for the without prejudice privilege at common law, namely, that people should be free to explore the settlement of disputes and to make admissions in the course of those discussions, safe in the knowledge that any admissions which they make will not be tendered against them later in Court, if the negotiations break down.


case_text: even if the reasoning in Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501 could sensibly be applied to documents protected by without prejudice privilege (which I doubt), I do not think it would assist the ACCC in the present case. The ACCC had a legitimate interest in the Allphones disputes with its franchisees as the relevant regulatory authority under the Act and for the purposes of the Franchising Code of Conduct. Allphones sought to involve the ACCC in those capacities in the dispute resolution process instigated by Allphones. In fact, the ACCC was keeping a close eye on that process. The disaffected franchisees were probably looking to the ACCC for protection. Given the promptness with which the ACCC raised its concerns about Allphones' conduct in relation to that dispute resolution process, I infer that, in the period from early September 2008 to at least January 2009, officers of the ACCC and/or its lawyers were in regular contact with franchisees and their legal representatives about the negotiations and foreshadowed mediation instigated by the Notice of Dispute. The copy of the first BDO report sent to Corrs on 26 September 2008 was sent in connection with Allphones' dispute with the eligible franchisees. It cannot be tendered in evidence because s 131(1) forbids its tender.


case_text: Field v Commissioner for Railways for NSW [1957] HCA 92 ; (1957) 99 CLR 285 , Dixon CJ, Webb, Kitto and Taylor JJ, in a joint judgment, said (at 291 292) The law relating to communications without prejudice is of course familiar. As a matter of policy the law has long excluded from evidence admissions by words or conduct made by parties in the course of negotiations to settle litigation. The purpose is to enable parties engaged in an attempt to compromise litigation to communicate with one another freely and without the embarrassment which the liability of their communications to be put in evidence subsequently might impose upon them. The law relieves them of this embarrassment so that their negotiations to avoid litigation or to settle it may go on unhampered. This form of privilege, however, is directed against the admission in evidence of express or implied admissions. It covers admissions by words or conduct. For example, neither party can use the readiness of the other to negotiate as an implied admission. It is not concerned with objective facts which may be ascertained during the course of negotiations. These may be proved by direct evidence. But it is concerned with the use of the negotiations or what is said in the course of them as evidence by way of admission. For some centuries almost it has been recognised that parties may properly give definition to the occasions when they are communicating in this manner by the use of the words "without prejudice" and to some extent the area of protection may be enlarged by the tacit acceptance by one side of the use by the other side of these words: see Thomas v. Austen [(1823) 1 LJ (OS) KB 99]; Kurtz & Co. v. Spence & Sons [(1888) 58 LT 438 , at p 441]; Paddock v. Forrester [(1842) [1842] EngR 146 ; 3 Man & G 903 at p 919; [1842] EngR 146 ; 133 ER 1404 at p 1411]; Hoghton v. Hoghton [(1852) [1852] EngR 446 ; 15 Beav 278 at pp 314, 315; [1852] EngR 446 ; 51 ER 545 at p 559]; In re River Steamer Co.; Mitchell's Claim [(1871) LR 6 Ch App 822 at pp 831, 832]; Walker v. Wilsher [(1889) 23 QBD 335 at pp 337, 338]. Needless to say, the privilege is a matter to be raised by objection to the admissibility of the evidence. For the purpose of deciding such an objection the judge may take evidence on the voir dire . The Justices who delivered the joint judgment went on to hold that the question of whether the privilege attaches depends upon whether the communication formed part of the negotiations for the settlement of the action or was reasonably incidental to those negotiations ( Field 99 CLR at 292). In Korean Air Lines v Australian Competition and Consumer Commission (No 3) [2008] FCA 701 ; (2008) 247 ALR 781 , Jacobson J said (at [72] [74]): Communications made "in connection with an attempt to negotiate a settlement" The statutory requirement that the communication be "in connection with an attempt to negotiate a settlement" reflects the language used by the High Court in Field : at 293. There, Dixon CJ, Webb, Kitto and Taylor JJ contemplated that the privilege extends to cover communications that are reasonably incidental to negotiations. The effect of the authorities at common law is that the privilege applies to offers to negotiate and expressions of willingness to do so; it is not necessary that there be an offer capable of acceptance: Arnotts at 72 3. The same position applies under the Evidence Act . It is sufficient that the communication can be described as an "opening shot" in negotiations: GPI Leisure Corporation Ltd v Yuill (1997) 42 NSWLR 225 at 226.


case_text: I understand proposed Order 1, the ACCC seeks leave to be released from the implied undertaking in respect of the documents listed in that proposed Order that may have been required of it in accordance with the principles in Harman v Home Department State Secretary [1983] 1 AC 280 at 304, 319, 320 and 321 as explained by the High Court in Hearne v Street [2008] HCA 36 ; (2008) 235 CLR 125 at [95] [97] (pp 154 155) and [105] [108] (pp 157 160).


case_text: Korean Air Lines v Australian Competition and Consumer Commission (No 3) [2008] FCA 701 ; (2008) 247 ALR 781 , Jacobson J said (at [72] [74]): Communications made "in connection with an attempt to negotiate a settlement" The statutory requirement that the communication be "in connection with an attempt to negotiate a settlement" reflects the language used by the High Court in Field : at 293. There, Dixon CJ, Webb, Kitto and Taylor JJ contemplated that the privilege extends to cover communications that are reasonably incidental to negotiations. The effect of the authorities at common law is that the privilege applies to offers to negotiate and expressions of willingness to do so; it is not necessary that there be an offer capable of acceptance: Arnotts at 72 3. The same position applies under the Evidence Act . It is sufficient that the communication can be described as an "opening shot" in negotiations: GPI Leisure Corporation Ltd v Yuill (1997) 42 NSWLR 225 at 226.


case_title: Rabin v Mendoza & Co [1954] 1 All ER 247, [1954] 1 WLR 271


case_text: original of the first BDO report is presumably in the possession of Allphones. The original may be a business record of Allphones or, perhaps, of BDO, although I doubt that this is so. For reasons which I will explain, I do not need to decide this point for present purposes (see Ringrow Pty Ltd v BP Australia Ltd [2003] FCA 933 ; (2003) 130 FCR 569 at [9] [21] (pp 571-573) for a discussion of some of the relevant issues). In my view, the original of the report is not admissible in evidence because the ACCC is prevented from seeking to tender it by s 131(1) of the Evidence Act . Section 131(1) of the Evidence Act is in the following terms: 131 Exclusion of evidence of settlement negotiations (1) Evidence is not to be adduced of: (a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or (b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.


case_outcome: discussed

case_text: On Friday 30 March 2006, Mr Patel and Mr Smith met with senior counsel to arrange for an application to be made to the Court for relief under s 1322 of the Act . Senior counsel advised that it would be prudent for NuSep to write to all of the shareholders who had taken up the rights issue and to the underwriters, notifying them of the problem and of NuSep's intention of applying to the Court for relief, and inviting any of them who opposed that course or wished to be heard on the making of the application to contact NuSep. Senior counsel gave that advice in view of remarks made by Emmett J in Re Cabcharge Australia Ltd [2007] FCA 421 (" Cabcharge ") to which I refer below. 18 In accordance with senior counsel's advice, on Tuesday 10 April 1007 the chairman of the board of NuSep wrote to the shareholders and underwriters. Mr Patel states that he received his own copy of the letter in his capacity as a shareholder on Wednesday 11 April 2007. Omitting formal parts, the chairman's letter was as follows: "The Company lodged its application for listing with the Australian Stock Exchange (ASX) on 1 March 2007 expecting to complete the listing process by the latter part of that month. Unfortunately due to a technical oversight, the Company has inadvertently breached a section of the Corporations Act and is in the process of seeking a time extension to the prospectus. As a result, the Company now expects to list in early May. The breach I refer to above arises from the timing of the filing of our application to the ASX for the listing of NuSep Ltd shares and options. The company initially lodged a listing application with the ASX on 16 October 2006. The company mistakenly believed that this dispensed with a further requirement of the Corporations Act to lodge an application within 7 days of the date of the prospectus. The full completed application was not lodged until after all applications for shares and options had been received and considered and shares and options allotted on 1 March 2007. In the interim period, a further requirement of the Corporations Act that listing be completed within 3 months has not been fulfilled. Advice from Senior Counsel has been obtained and an Application to the Federal Court of Australia for an order excusing the mistake has been prepared. It is anticipated that the Application will be heard by the Court on 19 April 2007. Should you consider that your interests will be prejudiced in some way by the making of the application, please advise our Company Secretary Prakash Patel by e-mail ( Prakash.patel@nusep.com ) or by fax to 02 8977 9099. Please provide this notification by 5pm on Tuesday 17 April 2007. Any response that is received which opposes the making of the application for relief will be conveyed to the Court. The ASX has indicated that it will support NuSep's Application to the Court for relief. ASIC has also been advised of this matter." Mr Patel states that at the time of the swearing of his affidavit (18 April 2007), no shareholder or underwriter had contacted him indicating opposition. 19 Mr Patel further states that he is not aware of any other person whose interests would be prejudiced by the making of an order extending the periods of seven days and three months. He says that the conditions laid down by ASX have now been almost entirely complied with and that it only remains for NuSep to supply to ASX executed restricted securities agreements and a letter of undertaking in relation to the provision of registry services. He states that the form of these two documents has been agreed with ASX. 34 In Cabcharge , Emmett J dealt with an off-market takeover bid. Section 625 of the Act had the effect that if the consideration offered was or included securities and the bidder's statement stated or implied that the securities were to be "quoted on a financial market", then the offer was "subject to a condition" that an application for admission of the securities to quotation would be made within seven days after the start of the bid period, and the offer could not be made free from that condition. 35 His Honour expressed "some faint reservation" as to the availability of s 1322(4)(d) , because the Act had the effect of making it a condition of the contracts that came into existence by acceptance of the takeover offers that the application for admission to quotation would be made within seven days after the start of the bid period. Clause 9.1 of the bidder's statement provided that the Offer Conditions were conditions subsequent and did not prevent a contract for the acquisition of a share arising, unless the statutory offer condition to which I referred was not fulfilled. Thus, in effect, his Honour said, the statutory offer condition was made a condition precedent: "[i]t is a term of the contracts that might or might not come into existence, as between holders of shares in Newcastle Taxis on the one hand, and Cabcharge on the other" (at [8]). His Honour considered that in these circumstances s 1322 may not be entirely apt to remedy the difficulty that had arisen. 36 It was in the light of Cabcharge that NuSep advised all of its shareholders who had taken up the rights issue of the making of the present application and invited them to give notice of any objections they might have. 37 In the present case, the prospectus does not make the making of an application for quotation within seven days (or the admission of the securities to quotation within three months), a condition precedent. NuSep promised in cl 2.3 of the prospectus to apply to ASX within seven days after the date of the prospectus, for official quotation of all the shares and options. This promise became a term of the contracts between NuSep and those of its shareholders who took up the rights issue. 38 The orders that I am asked to make are to be made only "for the purposes of" s 723(3)(a) and (b) of the Act . The orders will therefore only overcome the adverse consequences provided for in s 723(3)(c) and (d), namely, that an issue of securities in response to an application made under the prospectus is void and that NuSep must return the money received by it from the applicants as soon as practicable. Importantly, the orders will not interfere with the contractual relationship between NuSep and its members who took up the rights issue, and, in particular, with the legal consequences of NuSep's failure to perform its contractual promise expressed in cl 2.3 of the prospectus. If any of those members have suffered loss or damage by reason of their shares or options not having been quoted on the ASX as early as they would have been if the application had been made within seven days after 14 December 2006, they will retain their right of action unaffected by the orders made. 39 I am satisfied that no substantial injustice has been or is likely to be caused to any person by the making of an order under s 1322: see s 1322(6)(c) of the Act . 40 Relief should be made available under s 1322(4)(d).


case_text: Section 723(3) does not, in terms, require the application for quotation to be made within the seven day period, and, of course, does not require that the securities be admitted to quotation within the three month period a matter for ASX. In Re Insurance Australia Group Ltd [2003] FCA 581 ; (2003) 128 FCR 581 (" IAG ") I held that s 1322(4)(d) was nonetheless applicable to s 723(3)(a) (and to s 724(1)(b)(i)). For the reasons I gave in IAG, I again hold that I have power to make an order under s 1322(4)(d) to extend the seven day period referred to in 723(3)(a). 29 The position in relation to the three month period referred to in s 723(3)(b) may be thought to be less clear, but I reach the same conclusion as in relation to s 723(3)(a). It is true that it is a third party, ASX, not NuSep, that can choose to do or not to do the act referred to in s 723(3)(b) (admit the securities to quotation). Otherwise, however, the considerations that led me to conclude in IAG that s 1322(4)(d) was available in relation to s 723(3)(a) apply. In my opinion, the period of three months for the admission of the securities to quotation is as much as "a period for doing any act, matter or thing" within s 1322(4)(d) as is the period of seven days for the making of an application for the admission of the securities to quotation. 30 I turn now to the question of discretion.


case_outcome: referred to

case_title: Jess v Scott (1986) 12 FCR 187

case_text: Order 52 r 15(1)(a) of the Federal Court Rules provides that a notice of appeal is to be filed 21 days from the date of judgment. In this case, this period ended on 15 November 2006. The application for an extension of time was filed on 21 November 2006. Pursuant to O 52 r 15(2), the time limit may be extended for 'special reasons'. In Jess v Scott (1986) 12 FCR 187, a Full Court of this Court said, at 195: "...the expression 'special reasons' is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression 'for special reasons' implies something narrower than this." 12 The applicant was present in Court on 25 October 2006, when the Federal Magistrate delivered his ex tempore reasons. An interpreter was also present to assist him. He has not adduced any evidence that might explain the delay in lodging his notice of appeal. He has not adduced any evidence of 'special reasons' that would satisfy the Court that an extension of time should be granted. 13 Further, as the first respondent submitted in written submissions, the proposed appeal would appear to have insufficient prospects of success to justify an extension of time. The applicant's draft notice of appeal claims that: (a) the decision of the Federal Magistrates Court involved an important exercise of power; (b) the Tribunal failed to provide the applicant with procedural fairness; and (c) he is entitled to a protection visa. The applicant's supporting affidavit rehearses the merits of his claim that he is entitled to a protection visa. I put the first claim to one side since it does not raise any ground for review. I also put the third ground aside since it invites an inquiry into the merits of the applicant's visa application that the Court is not at liberty to make. Neither of these grounds is capable of raising jurisdictional error. Only the applicant's second claim is capable of raising possible jurisdictional error.


case_title: Barclays Bank v Tom [1922] 1 KB 221

case_text: Before the various cross-respondents made their applications for leave to defend the applicants' claim against Landmark there was a good deal to be said in favour of the applicants' application. I acknowledge that even at that time there were reasons not to order separate trials. They were the matters often present in cases involving third party proceedings such as the desirability of having all parties bound by the decision between the plaintiff and the defendant so as to avoid the possibility of inconsistent findings, the additional cost and expense of two trials and the disadvantages to a defendant in two trials including possibly having to satisfy a judgment in favour of the plaintiff well before his claim against the third party is determined: Barclays Bank v Tom [1922] 1 KB 221; New World Oil and Developments Pty Limited v 163 Clarence Street Pty Limited [1995] FCA 138. However, in this case there were a number of weighty considerations on the other side. First, there was a large number of factual issues raised on the various cross-claims all of which at that point appeared to be of no relevance to the applicants' claim against Landmark. That was so because the proportionate liability provisions as properly construed appeared to be irrelevant because there was little to indicate at that time to suggest that any of the cross-respondents were directly liable to the applicants. Secondly, the applicants' claim against Landmark was a good deal more advanced in terms of being ready for trial than were any of the cross-claims. Thirdly, the applicants' difficult financial situation was relevant as was the fact that, if liability was established, that had been brought about by Landmark's conduct. 81 In addition, I refer to, without setting out, the observation of Scrutton LJ in Barclays Bank v Tom [1922] 1 KB 221 at 224.


case_text: In Barton v London and North Western Railway Company (1888) 38 ChD 144 ("Barton"), third parties, who had been given liberty to appear at the trial and take such part as the Judge should direct, appealed against the order claiming that they should have been given liberty to deliver a defence, appear at the trial, and put in evidence, and cross-examine the plaintiffs' witnesses. The appeal was dismissed. Cotton LJ said (at 150): "In my opinion the order under appeal gives the Appellants all that they can reasonably ask, for where all material grounds of defence are fairly raised by the defendant, a plaintiff ought not, in my opinion, to be embarrassed by the third party coming in and saying, 'I wish to deliver a defence; I wish to administer interrogatories; I wish to take the same course as if I were a defendant.' ... There is considerable difficulty in dealing with cases like the present, because the practice is new; we must take care to prevent persons who have been summoned as third parties being subjected to injustice, but we must also prevent the plaintiff from being subjected to injustice, and in my opinion he would be so subjected if all persons served as third parties were at liberty to deliver defences just as if they were defendants, when the plaintiff has not made them so, and has only asked for relief which can be obtained without making them defendants." Lindley LJ said (at 152): "What opportunity have they of seeing that those questions are fairly and properly investigated? The learned Judge has given them liberty to appear at the trial of the action, and take such part as the Judge shall direct, and the Judge has made that order having satisfied himself that the real Defendants, the railway company, who are not nominal Defendants, but have a very substantial interest, have raised in their defence the questions to which I have adverted, and that they will bona fide contest those questions." (Original emphasis.) Bowen LJ said (at 154-155): "What other protection do Mr Hawkins' clients want? He was really unable to make out any case for any further protection. The London and North Western Railway Company are effectively defending this action against the Plaintiffs. If Mr Hawkins could have made out that it was a sham defence, then he might, of course, have applied to the Judge, and applied to us on appeal to let his clients do what was not being effectively done, as appears to have been done on the application in Witham v Vane . But no suggestion is made that the company are not effectively defending, and the third parties have no right to dress the defence in some particular way which pleases their eye, if their interests are being substantially maintained by the railway company. ... It seems to me that the third parties are adequately protected, and it would not be reasonable for the Plaintiffs to be hampered and embarrassed by a fresh defence delivered on behalf of a third party who really is outside the action so far as the Plaintiffs are concerned, or to be interrogated and vexed with discovery at the instance of such a person. If necessary to the purpose of justice it will be done, but at the present moment there does not appear to me to be any such necessity." (Original emphasis. Footnote references omitted.) 82 Selected Seeds submitted that it is a generally accepted incident of third party proceedings that a third party is able to defend the plaintiff's claim against the defendant. It referred to Helicopter Sales (Australia) Pty Limited v Rotor-Work Pty Ltd [1974] HCA 32 ; (1974) 132 CLR 1 (" Helicopter Sales "). In that case, a third party's right to appeal against the plaintiff's judgment against the defendant was in issue. The trial judge had given the third party leave to defend the plaintiff's claim, but had not made an order that the third party be bound by the decision on the plaintiff's claim against the defendant. Stephen J said that omission would ordinarily be fatal to the third party's right of appeal, but his Honour said that such an order should be taken to have been made in circumstances where the parties have proceeded in that way (at 14). Barwick CJ and Mason J went further and said that in circumstances where the third party had in fact contested the plaintiff's claim against the defendant the third party has a right of appeal even in circumstances where no leave to defend has been given (Barwick CJ at 4-5; Mason J at 15). It has been said that Helicopter Sales is authority for the proposition that leave to defend is a generally accepted incident of third party proceedings: Hall v Commissioner of Taxation [2004] NSWSC 985 ; (2004) 51 ACSR 173 at 178 [16] per Barrett J. In Duncan v Commissioner of Taxation (2006) 58 ACSR 555, Young J said that Helicopter Sales was authority for the proposition that it was a generally accepted incident of third proceedings that a third party could contest the plaintiff's claim (at 561 [22]). It is not apparent to me that Helicopter Sales is authority for such broad propositions but I do not need to pursue the point because Selected Seeds has satisfied the test in Barton .


case_text: Selected Seeds submitted that it is a generally accepted incident of third party proceedings that a third party is able to defend the plaintiff's claim against the defendant. It referred to Helicopter Sales (Australia) Pty Limited v Rotor-Work Pty Ltd [1974] HCA 32 ; (1974) 132 CLR 1 (" Helicopter Sales "). In that case, a third party's right to appeal against the plaintiff's judgment against the defendant was in issue. The trial judge had given the third party leave to defend the plaintiff's claim, but had not made an order that the third party be bound by the decision on the plaintiff's claim against the defendant. Stephen J said that omission would ordinarily be fatal to the third party's right of appeal, but his Honour said that such an order should be taken to have been made in circumstances where the parties have proceeded in that way (at 14). Barwick CJ and Mason J went further and said that in circumstances where the third party had in fact contested the plaintiff's claim against the defendant the third party has a right of appeal even in circumstances where no leave to defend has been given (Barwick CJ at 4-5; Mason J at 15). It has been said that Helicopter Sales is authority for the proposition that leave to defend is a generally accepted incident of third party proceedings: Hall v Commissioner of Taxation [2004] NSWSC 985 ; (2004) 51 ACSR 173 at 178 [16] per Barrett J. In Duncan v Commissioner of Taxation (2006) 58 ACSR 555, Young J said that Helicopter Sales was authority for the proposition that it was a generally accepted incident of third proceedings that a third party could contest the plaintiff's claim (at 561 [22]). It is not apparent to me that Helicopter Sales is authority for such broad propositions but I do not need to pursue the point because Selected Seeds has satisfied the test in Barton .


case_title: Hall v Commissioner of Taxation [2004] NSWSC 985 ; (2004) 51 ACSR 173


case_title: Helicopter Sales (Australia) Pty Limited v Rotor-Work Pty Ltd [1974] HCA 32 ; (1974) 132 CLR 1


case_title: New World Oil and Developments Pty Limited v 163 Clarence Street Pty [1995] FCA 138

case_text: Before the various cross-respondents made their applications for leave to defend the applicants' claim against Landmark there was a good deal to be said in favour of the applicants' application. I acknowledge that even at that time there were reasons not to order separate trials. They were the matters often present in cases involving third party proceedings such as the desirability of having all parties bound by the decision between the plaintiff and the defendant so as to avoid the possibility of inconsistent findings, the additional cost and expense of two trials and the disadvantages to a defendant in two trials including possibly having to satisfy a judgment in favour of the plaintiff well before his claim against the third party is determined: Barclays Bank v Tom [1922] 1 KB 221; New World Oil and Developments Pty Limited v 163 Clarence Street Pty Limited [1995] FCA 138. However, in this case there were a number of weighty considerations on the other side. First, there was a large number of factual issues raised on the various cross-claims all of which at that point appeared to be of no relevance to the applicants' claim against Landmark. That was so because the proportionate liability provisions as properly construed appeared to be irrelevant because there was little to indicate at that time to suggest that any of the cross-respondents were directly liable to the applicants. Secondly, the applicants' claim against Landmark was a good deal more advanced in terms of being ready for trial than were any of the cross-claims. Thirdly, the applicants' difficult financial situation was relevant as was the fact that, if liability was established, that had been brought about by Landmark's conduct.


case_text: On 9 February 2007 I ordered that: "1. The amended notice of appeal be struck out. .2. The proceedings be dismissed. 3. The appellant pay the costs of and associated with this appeal, including costs of all motions." ( Dunstan v Human Rights and Equal Opportunity Commission [2007] FCA 191.) Those orders were entered on 23 February 2007 and served on Mr Dunstan under cover of a letter dated 26 February 2007. 2 On 12 March 2007 Mr Dunstan filed a notice of motion seeking the following orders: "1. The decision on 9/2/2007 of Justice Gyles is set aside. 2. Leave is granted for the filing of a Notice of Appeal in ACD 4 of 2006. 3. Other orders as the Courts deems fit." A further draft amended notice of appeal was provided with an affidavit affirmed on 8 March 2007. 3 That motion came on for hearing on 10 April last. It was submitted for all respondents (apart from the first respondent, which submitted) that the motion was incompetent as there is no power to recall the entered order. Having heard from the solicitors for the respondents, I adjourned the matter until 31 May 2007 in order that the respondents could file any supplementary submissions and that Mr Dunstan could give consideration to the points that had been raised. He was to file an outline of submissions in answer. That occurred, together with the filing of yet another affidavit. Mr Dunstan seeks to raise matters in relation to discovery in preparation for the hearing at first instance. The affidavit also enlarges upon the difficulties that he has had in prison connected with the preparation of his case, a topic which was dealt with at some length in his first affidavit filed in support of this motion.


case_text: Even if there were power to set aside the orders of 9 February 2007, I would not do so. The original notice of appeal was filed on 30 January 2006 from a judgment delivered on 21 December 2005 ( Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885). The case had commenced in 1997 concerning events occurring between 1987 and 1997. The hearing had taken place over six days and involved a large volume of documents. The judgment ran to some 307 paragraphs. Mr Dunstan had appeared for himself. Mr Dunstan was in custody at the time of the hearing and has remained in custody until the hearing of this motion. The original notice of appeal was plainly not in accordance with the Federal Court Rules and was quite inappropriate for the orderly preparation for appeal. That was pointed out to Mr Dunstan at the hearing of a motion to strike it out on 6 November 2006. During the course of that hearing Mr Dunstan spelled out the difficulties that he had by reason of his being in custody as well as being a litigant in person. The respondents had filed an application for security of costs. It was pointed out that there could be no progress in relation to the appeal or in relation to the question of security for costs until a proper notice of appeal was filed. It was also pointed out that individuals were named as respondents and suffered from the delay. The matter was then approaching an anniversary of the date of judgment. The notice of appeal was struck out and the appellant was granted leave to file an amended notice of appeal on or before 2 February 2007. By 9 February 2007, an amended notice of appeal had been filed but still was nowhere near being in proper form. That led to the orders in question. 14 The bases put for reopening fall into three categories. The first is that Mr Dunstan wishes to pursue an application for a retrial based upon fresh evidence as to documents which were not properly disclosed to him on discovery or otherwise in the course of the case. This is based upon what are effectively no more than assertions by Mr Dunstan, supported by a process of reasoning which is not self-explanatory. The support for such an application falls very far short of that which would be required to persuade a court to permit such an issue to be raised at this stage of a case on appeal. To the extent that the issues can be grappled with, counsel for the respondents has pointed to gaps in relation to each of the conclusions sought to be drawn by Mr Dunstan. In any event, there is no proper explanation for delay. 15 The second is to flesh out to a greater extent than hitherto some of the practical difficulties that Mr Dunstan has suffered in preparing matters in custody. However, the general nature of the problems he would suffer has been obvious at all times.


case_outcome: distinguished

case_text: In Australian Fisheries Management Authority v PW Adams Pty Ltd (No 2) (1996) 66 FCR 349 the orders of the Full Court had not been entered. In Fox v Commissioner for Superannuation (No 2) [1999] FCA 372 ; (1999) 88 FCR 416, the order had not been entered and O 35 r 7(1) was available. The "appeal" was the exercise of original jurisdiction.


case_text: There has been controversy as to whether there is any implied power to set aside an order once entered. In Copping v ANZ McCaughan Ltd (1997) 67 SASR 525 at 565 Lander J said that: "there is no inherent power in the Court to revoke or vary an order once made and perfected by sealing" (Doyle CJ agreed with Lander J.) That topic was discussed in Yevad 147 FCR at 286 288, particularly at [29] [30], but only incidentally as it did not arise on the facts of the case. The Court referred to the decision of the High Court in DJL v Central Authority [2000] HCA 17 ; (2000) 201 CLR 226 where the majority pointed out that there was no decision of the High Court that approved the reopening of final orders after entry ( DJL [2000] HCA 17 ; 201 CLR 226 at [44] ). Kirby J, in dissent, at [100] referred to decisions of this Court said to favour a wider view. The Court in Yevad [2005] FCAFC 263 ; 147 FCR 282 had to consider a case where the notice of motion for reopening of an appeal where final orders had been made was filed before the orders were entered. The Court held that the time of making of the application to reopen was determinative. The issue was considered on the basis that orders had not been entered and so O 35 r 7(1) was engaged ( Yevad [2005] FCAFC 263 ; 147 FCR 282 at [32] [33]). That case can be regarded as being concerned with the power of the Court to vary its orders before entry (cf Pantzer v Wenkart [2007] FCAFC 27 per Black CJ at [7]).


case_outcome: considered

case_text: There has been controversy as to whether there is any implied power to set aside an order once entered. In Copping v ANZ McCaughan Ltd (1997) 67 SASR 525 at 565 Lander J said that: "there is no inherent power in the Court to revoke or vary an order once made and perfected by sealing" (Doyle CJ agreed with Lander J.) That topic was discussed in Yevad 147 FCR at 286 288, particularly at [29] [30], but only incidentally as it did not arise on the facts of the case. The Court referred to the decision of the High Court in DJL v Central Authority [2000] HCA 17 ; (2000) 201 CLR 226 where the majority pointed out that there was no decision of the High Court that approved the reopening of final orders after entry ( DJL [2000] HCA 17 ; 201 CLR 226 at [44] ). Kirby J, in dissent, at [100] referred to decisions of this Court said to favour a wider view. The Court in Yevad [2005] FCAFC 263 ; 147 FCR 282 had to consider a case where the notice of motion for reopening of an appeal where final orders had been made was filed before the orders were entered. The Court held that the time of making of the application to reopen was determinative. The issue was considered on the basis that orders had not been entered and so O 35 r 7(1) was engaged ( Yevad [2005] FCAFC 263 ; 147 FCR 282 at [32] [33]). That case can be regarded as being concerned with the power of the Court to vary its orders before entry (cf Pantzer v Wenkart [2007] FCAFC 27 per Black CJ at [7]). 8 The first of the cases referred to by Kirby J in DJL [2000] HCA 17 ; 201 CLR 226 was Donkin v AGC (Advances) Ltd [1995] FCA 696. The procedural history of that case is a cautionary tale. The orders of the Full Court sought to be set aside had not been entered (see Whitlam J at 11). The application was considered on the assumption that there was power to reopen but the exceptional nature of that power was stressed and the application refused. 9 The issue was touched on in Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 in the course of deciding whether an appeal lay from a single judge's refusal to extend time to institute an appeal. The order had been entered. The Full Court was prepared to assume, without deciding, that there was jurisdiction to set the orders aside and that that jurisdiction could be exercised by a Full Court but dismissed the purported appeal as incompetent. The authorities referred to that were said to support power to reopen an entered order, albeit in very limited circumstances, were Wentworth v Rogers (No 9) (1987) 8 NSWLR 388 per Kirby P at 394 and Haig v Minister Administering the National Parks & Wildlife Act 1974 (1994) 85 LGERA (CA (NSW)) 143 per Kirby P at 153 154. Those references now have to be read in the light of the majority decision in DJL [2000] HCA 17 ; 201 CLR 226.


case_text: The first of the cases referred to by Kirby J in DJL [2000] HCA 17 ; 201 CLR 226 was Donkin v AGC (Advances) Ltd [1995] FCA 696. The procedural history of that case is a cautionary tale. The orders of the Full Court sought to be set aside had not been entered (see Whitlam J at 11). The application was considered on the assumption that there was power to reopen but the exceptional nature of that power was stressed and the application refused.


case_title: Fox v Commissioner for Superannuation (No 2) [1999] FCA 372 ; (1999) 88 FCR 416


case_title: Haig v Minister Administering the National Parks & Wildlife Act 1974 (1994) 85 LGERA 143 (CA (NSW))

case_text: The issue was touched on in Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 in the course of deciding whether an appeal lay from a single judge's refusal to extend time to institute an appeal. The order had been entered. The Full Court was prepared to assume, without deciding, that there was jurisdiction to set the orders aside and that that jurisdiction could be exercised by a Full Court but dismissed the purported appeal as incompetent. The authorities referred to that were said to support power to reopen an entered order, albeit in very limited circumstances, were Wentworth v Rogers (No 9) (1987) 8 NSWLR 388 per Kirby P at 394 and Haig v Minister Administering the National Parks & Wildlife Act 1974 (1994) 85 LGERA (CA (NSW)) 143 per Kirby P at 153 154. Those references now have to be read in the light of the majority decision in DJL [2000] HCA 17 ; 201 CLR 226.


case_title: Pantzer v Wenkart [2007] FCAFC 27


case_text: The order in this case is final in the sense that it ended the appeal once and for all. On the other hand, it is not an order made after hearing argument on the merits. I would be inclined to think that it would be regarded as interlocutory if O 35 r 7(2)(c) were applicable (cf Re Luck [2003] HCA 70 ; (2003) 203 ALR 1). 12 Even if applicable, it would be a bold step to utilise s 23 of the Act or an inherent power to cover a situation where s 25 of the Act and O 35 and O 52 of the Federal Court Rules have closely regulated the field. If there is a gap it should be filled by amendment of the Rules.


case_text: Setting aside of a judgment or order is dealt with by O 35 r 7 of the Federal Court Rules . As judgment has been entered, subrule (1) is not applicable. If the Court is exercising the appellate or related jurisdiction under Div 2 of Pt III of the Act, subrule (2) does not apply. It is possible that the phrase 'where it is not exercising its appellate or related jurisdiction under Div 2 of Pt III of the Act' could be given a restricted meaning. On that view, the motion before the Court is not, in itself, the exercise of appellate or related jurisdiction although it relates to an order made in the appellate or related jurisdiction. That is rather strained construction of the rule, and would appear to be contrary to the opinion of the Full Court in SZISM v Minister for Immigration and Citizenship [2007] FCAFC 61 at [17] . No clerical mistake or error arising from an accidental slip or omission has been made, so subrule (3) does not apply. In my opinion, the better view is that the present application is not to vary or terminate the operation of an order but, rather, to set it aside. On that basis, subrule (4) does not apply. Although the authorities discussed in Yevad Products Pty Ltd v Brookfield [2005] FCAFC 263 ; (2005) 147 FCR 282 at [26] [27] give some basis for a wider view, subrule (4) most naturally applies to an order with continuing effect such as an injunction.


case_title: Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543


case_title: Wentworth v Rogers (No 9) (1987) 8 NSWLR 388


case_text: Setting aside of a judgment or order is dealt with by O 35 r 7 of the Federal Court Rules . As judgment has been entered, subrule (1) is not applicable. If the Court is exercising the appellate or related jurisdiction under Div 2 of Pt III of the Act, subrule (2) does not apply. It is possible that the phrase 'where it is not exercising its appellate or related jurisdiction under Div 2 of Pt III of the Act' could be given a restricted meaning. On that view, the motion before the Court is not, in itself, the exercise of appellate or related jurisdiction although it relates to an order made in the appellate or related jurisdiction. That is rather strained construction of the rule, and would appear to be contrary to the opinion of the Full Court in SZISM v Minister for Immigration and Citizenship [2007] FCAFC 61 at [17] . No clerical mistake or error arising from an accidental slip or omission has been made, so subrule (3) does not apply. In my opinion, the better view is that the present application is not to vary or terminate the operation of an order but, rather, to set it aside. On that basis, subrule (4) does not apply. Although the authorities discussed in Yevad Products Pty Ltd v Brookfield [2005] FCAFC 263 ; (2005) 147 FCR 282 at [26] [27] give some basis for a wider view, subrule (4) most naturally applies to an order with continuing effect such as an injunction. 7 There has been controversy as to whether there is any implied power to set aside an order once entered. In Copping v ANZ McCaughan Ltd (1997) 67 SASR 525 at 565 Lander J said that: "there is no inherent power in the Court to revoke or vary an order once made and perfected by sealing" (Doyle CJ agreed with Lander J.) That topic was discussed in Yevad 147 FCR at 286 288, particularly at [29] [30], but only incidentally as it did not arise on the facts of the case. The Court referred to the decision of the High Court in DJL v Central Authority [2000] HCA 17 ; (2000) 201 CLR 226 where the majority pointed out that there was no decision of the High Court that approved the reopening of final orders after entry ( DJL [2000] HCA 17 ; 201 CLR 226 at [44] ). Kirby J, in dissent, at [100] referred to decisions of this Court said to favour a wider view. The Court in Yevad [2005] FCAFC 263 ; 147 FCR 282 had to consider a case where the notice of motion for reopening of an appeal where final orders had been made was filed before the orders were entered. The Court held that the time of making of the application to reopen was determinative. The issue was considered on the basis that orders had not been entered and so O 35 r 7(1) was engaged ( Yevad [2005] FCAFC 263 ; 147 FCR 282 at [32] [33]). That case can be regarded as being concerned with the power of the Court to vary its orders before entry (cf Pantzer v Wenkart [2007] FCAFC 27 per Black CJ at [7]).


case_outcome: applied

case_title: Campomar Socieded, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45

case_text: was an issue between the ACCC and Teracomm about the attributes of the target audience of Dolly , all teenage girls aged between 14 and 17. The ACCC submitted they were likely to be sufficiently gullible or vulnerable to fail to understand (either wholly or partially) the message conveyed in the advertisements including the message about the cost and nature of the service. Teracomm submitted they were savvy, technologically literate adolescents who would have well understood the advertisements. It is sufficient, when dealing with this question, to repeat (without using quotations) what I said in Australian Competition and Consumer Commission v Prouds Jewellers Pty Ltd [2008] FCA 75 at [16] and [19]. The leading authority on the question of how the audience is identified and what characteristics or attributes it may have, is the judgment of the High Court in Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45: see also Campbell v Backoffice Investments Pty Ltd [2009] HCA 25 at [26]. In considering the nexus between the conduct and the likely misleading or deception of the prospective purchasers in the case of representations to the public it is necessary to isolate who are the "ordinary" or "reasonable" members of the class of prospective purchasers. In Campomar the Court explained that this process involves an objective attribution of certain characteristics. Such a person would not fail to take reasonable care of their own interests. It is necessary to isolate by some criterion a representative member of that class to determine whether a misconception is likely to arise from the conduct alleged (see [103]). Section 52 contemplates the effect of the conduct on reasonable members of a class. In identifying the hypothetical individual contemplated by the joint judgment in Campomar and in considering the effect of the impugned conduct on that individual, the Court can identify from a general and diverse group which may constitute the audience, a hypothetical individual who is most likely to be misled but only in the sense used in the following quotation. That is, one can test the effect of the conduct on a subclass of that general and diverse group. So much is apparent from the judgment of the Full Court in Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247 ; (2004) 139 FCR 215. The Full Court said (at [24]): [The trial judge] (at [16]) summarised the text formulated by the High Court in Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45 at [103] - [105] in these terms: "First, where the persons allegedly misled are not identified individuals but are members of a class it is necessary to isolate "a representative member" of the class and enquire whether this hypothetical individual is likely to be deceived. Second, when considering the likely effect of the misrepresentation on this hypothetical person he (or she) should be judged as an 'ordinary' or 'reasonable' member of the class. In this way, reactions to the representation that are 'extreme' or 'fanciful' will be disregarded." Having identified the test his Honour then said (at [21]): "How then is one to identify and give characteristics to Campomar Sociedad 's hypothetical individual? Logic demands that if one is dealing with a diverse group then, for the purpose of determining whether particular conduct has the capacity to mislead, it is necessary to select a hypothetical individual from that section of the group which is most likely to be misled. If the court is satisfied that this hypothetical individual is likely to have been misled by that conduct, that would be sufficient." The appellants' complaint appears to be that his Honour should have considered the effect of the notices on the "ordinary or reasonable" recipient. However in our view his Honour accurately summarised the Campomar test. There is no inconsistency between testing the effect of the representation by reference to ordinary or reasonable members of the class and by reference to the hypothetical individual. The attribution of characteristics to the ordinary and reasonable members of the class must be objective in order to allow for the wide range of persons who would in fact make up the class: National Exchange Pty Ltd v Australian Securities and Investments Commission [2004] FCAFC 90 ; (2004) 49 ACSR 369 at [68] per Jacobson and Bennett JJ. Within a large class there may be a number of subclasses of ordinary and reasonable people. Thus in the present case there may be ordinary and reasonable persons who were well informed about the internet and the domain name registration system and other persons, equally ordinary and reasonable, who were not. In my opinion, the ACCC's contentions in this matter can be approached on the footing that there would have been a material number of readers of Dolly who would not have paid particular attention to matters of detail and would not have had a familiarity or understanding of these services. Those readers would have been or would have been likely to have been misled by the advertisements. It is not necessary for the advertisements to be characterised in this way (in order to found a conclusion that Teracomm engaged in proscribed conduct) for the advertisements to have resulted in readers acquiring the content offered by Teracomm. However they did though not in great numbers (roughly averaging 180 in the period May to September 2008). I am fortified in expressing this conclusion by the uncontested evidence of Teracomm concerning the take-up rate. It was to the effect that typically 40% to 70% of customers unsubscribed within the first hour of signing up. Presumably these customers did so either because they noted the commentary at the bottom of the advertisement to the effect that it was a subscription and how to unsubscribe or they learnt that from the confirmation message or both. They may have known it was a subscription service for these reasons. Those who did not unsubscribe then remained, on average, a customer for just under three weeks.


case_text: hypothesis in this context cannot be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable: Byrnes v Repatriation Commission [1993] HCA 51 ; (1993) 177 CLR 564 at 571. Further, in Bushell v Repatriation Commission [1992] HCA 47 ; (1992) 175 CLR 408 at 416 the High Court said: 'The Commission will be satisfied beyond reasonable doubt "that there is no sufficient ground for making [the] determination" if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. Thus, if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination.'


case_text: hypothesis in this context cannot be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable: Byrnes v Repatriation Commission [1993] HCA 51 ; (1993) 177 CLR 564 at 571. Further, in Bushell v Repatriation Commission [1992] HCA 47 ; (1992) 175 CLR 408 at 416 the High Court said: 'The Commission will be satisfied beyond reasonable doubt "that there is no sufficient ground for making [the] determination" if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. Thus, if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination.' As made clear by the decisions of the High Court in Byrnes and the Full Court in Deledio , once the decision-maker has determined that the hypothesis raised is reasonable, the decision-maker must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the injury was not war-caused . It is only at this stage that the decision-maker will be required to find facts from the material before it. As the High Court said in Byrnes : 'The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.'


case_text: relation to the questions of law in the notice of appeal numbered (i), (ii), (vi) and (viii), issues of law arise which I can consider. As pointed out in Ergon Energy Incorporation Limited v The Commissioner of Taxation [2006] FCAFC 125 at [51] a question which is inelegantly drafted may nonetheless be a question of law if its purport is tolerably clear, having regard for example to relevant legislation, relevant authorities, the language of the Tribunal's reasons and the grounds stated in the notice of appeal. Reading these questions of law, the grounds of appeal, and the submissions of the applicant, I understand that the criticism of the findings of the Tribunal may be summarised and restated as follows: 1. The Tribunal did not take into account a relevant consideration, namely the cognitive impairment aspects of post traumatic stress disorder and dysthymic disorder. 2. The Tribunal failed to properly consider whether the incident at Nui Dat was a 'severe stressor' affecting the applicant. 3. The Tribunal made a finding not open on Dr Barry's evidence. 4. The Tribunal took into account irrelevant considerations by adding improper criteria to the SoPs and then found that the applicant did not satisfy those additional criteria. 5. The Tribunal failed to take into account Dr Mulholland's evidence. 6. The Tribunal failed to take into account the passage of time as provided by s 119(1)(h). Ms Bowskill for the respondent has framed her submissions in accordance with these issues, and I propose to consider each of these issues in turn. In his grounds of appeal, the applicant claimed that the Tribunal erred in not taking into account the medical factors which form part of the diagnosis of both post traumatic stress disorder and dysthymic disorder, in particular the cognitive impairment that manifested as the applicant's lack of memory of the events of 9 November 1969.


case_text: in relation to both s 119(1)(g) and s 119(1)(h) I note comments by Mansfield J in Fenner v Repatriation Commission [2005] FCA 27 where his Honour said (at par 29): '...whilst the directions of s 119(1)(f), (g) and (h) are of relevance to the way in which the Tribunal proceeded, they cannot remove from it the responsibility of applying ss 120 and 120A and other relevant provisions of the Act according to the proper terms. I do not think the argument therefore really advances the appellant's case on this appeal.' Those comments apply equally here. In the absence of further submissions explaining how s 119(1)(g) and (h) are of relevance, in my view they add little to the applicant's case. I see no error of law in the decision of the Tribunal in relation to s 119(1)(g) and (h).


case_text: party to a proceeding before the Tribunal may appeal to the Court on a question of law from any decision of the Tribunal in that proceeding (s 44(1) AAT Act). This Court does not have jurisdiction to intervene if all that is shown is that the Tribunal has reached an erroneous factual conclusion: see Repatriation Commission v Hendy [2002] FCAFC 424 at [33] , Leane v Repatriation Commission [2004] FCAFC 83 at [19] .


case_text: the proceeding before the Tribunal, the applicant claimed that the post traumatic stress disorder and dysthymic (or depressive) disorder from which he suffered resulted from his service in Vietnam, in particular an incident which took place in Vietnam on 9 November 1969. The Tribunal, applying the four-step test articulated by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 (' Deledio '), found in favour of the applicant on application of three of the steps, however found against the applicant on the final step which involved causation. In short, although there was no issue as to the fact that the applicant did suffer from post traumatic stress disorder and dysthymic disorder, the Tribunal found that these incapacities of the applicant were not caused by the incident of 9 November 1969, and were not 'war-caused'. The leading case articulating the process of reasoning the Tribunal is to undertake in considering a claim under the Act in respect of incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person, is the decision of the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82. The Full Court at 97-98 said as follows: 1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail. 2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail. 3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by s 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail. 4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved. As I noted earlier in this judgment, the Tribunal was satisfied that the period of defence service relevant to the claim of the applicant, namely from 4 June 1969 until 15 May 1970, was operational service and eligible war service as those terms are defined in s 7 and s 6C of the Act. Further, the Tribunal was satisfied that there was evidence for the diagnoses of post traumatic stress disorder and dysthymic disorder in the reports of the psychiatrists Dr Athey and Dr Mulholland. The Tribunal was also satisfied that, notwithstanding the fact that the applicant was on leave on 9 November 1969, this did not affect his status of being allotted for operational service during that time. Finally, the Tribunal was satisfied that the applicant had not suffered injury as a result of serious default or wilful act as defined in s 9. The Tribunal then considered the four-step course as outlined in Deledio that the Tribunal is to take in considering a claim of this nature. First, the Tribunal concluded that there was material pointing to a hypothesis connecting the applicant's claimed conditions of past traumatic stress disorder and dysthymic disorder with the events of 9 November 1969. Accordingly, the first Deledio step was satisfied. Second, the Tribunal considered the position with respect to SoPs. SoPs are determined by the Repatriation Medical Authority pursuant to s 196B of the Act. The Tribunal concluded that two SoPs were relevant, namely Instrument No 3 of 1999 (as amended by Instrument No 54 of 1999) concerning post traumatic stress disorder and Instrument No 58 of 1998 concerning depressive disorder. For the purposes of the claim, the relevant paragraphs were: • In the SoP concerning Depressive Disorder (Instrument No 58 of 1998), pars 5 and 8. Paragraph 5 defines factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting the depressive disorder with the circumstances of a person's relevant service including: '... (b) experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinic onset of depressive disorder.' Paragraph 8 defines 'severe psychosocial stressor' as meaning: 'an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.' Accordingly, the second Deledio step was satisfied. Third, the Tribunal found that the hypothesis advanced, namely that the psychiatric conditions of the applicant were attributable to the events of 9 November 1969, was reasonable in the context of both the SoPs concerning Depressive Disorder and Post Traumatic Stress Disorder. In doing so, the Tribunal accepted the summary of evidence given by the applicant and other witnesses. Accordingly, the third Deledio step was satisfied. However, the Tribunal found against the applicant in respect of the fourth Deledio step. In other words, the Tribunal found that the incapacities of the applicant, namely the post traumatic stress disorder and the dysthymic disorder, were not war-caused. In summary: (a) in relation to the claim for post traumatic stress disorder, the Tribunal was satisfied beyond reasonable doubt that the incident at Nui Dat on 9 November 1969 did not have a significant effect on the applicant for reasons that: • It was clear that, when giving evidence, the applicant's recollections of the event were vague. • The applicant remained some distance from the injured men, and did not speak with them or provide assistance such as loading the wounded into a medivac helicopter. • The evidence indicates that the applicant had no recall of any aspect of the event until he spoke with Mr Ellis at a reunion of personnel from his RAAF squadron 30 years later. • The Tribunal was unable to accept the correctness of the applicant's recall of the nature of his reaction to the sight of the wounded soldiers. • The evidence of the applicant and Mr Ellis and Mr Smith, both of whom also gave evidence, was that after they left the minefield they undertook an uneventful tour of Vietnamese villages. • On 14 November 1969, five days after the event, the applicant wrote a letter to his parents referring to the day he spent with Mr Ellis and Mr Smith but not referring to the minefield incident. • The evidence of Dr Barry was, inter alia , that an inability to recollect details of a stressful event is a characteristic of post traumatic stress disorder, however that the minefield incident was in itself not sufficient to result in post traumatic stress disorder. Her diagnosis was that the applicant's post traumatic stress disorder was based upon the impact of a range of experiences. As a result of this however the Tribunal was concerned as to her evidence in the light of the applicant's claim as the SoP concerning Post Traumatic Stress Disorder requires the applicant to experience a severe stressor . The Tribunal was of the view that if the events of 9 November 1969 did not constitute a severe stressor which was sufficient, in Dr Barry's diagnosis, to trigger post traumatic stress disorder, it would also not result in the suppression of memory which is a symptom associated with that disorder. • The evidence of Dr Athey was, in the view of the Tribunal, of limited use as Dr Athey was not made aware of the incident of 9 November 1969 by the applicant. • The evidence of Dr Mulholland was, in the view of the Tribunal, coloured by the version of the events given by the applicant to Dr Mulholland, namely that the applicant had been 'dragooned' into an 'operation' in which he was 'acting as an escort for the evacuation of wounded soldiers' which 'lasted a few hours' and which left him 'pretty much exposed'. The Tribunal was satisfied beyond reasonable doubt that what actually occurred on 9 November 1969 was not consistent with the version relied upon by Dr Mulholland. (b) In any event, the Tribunal stated that it was satisfied beyond reasonable doubt that the incident at Nui Dat was not an event that met the requirements of 'experiencing a severe stressor' as provided for in the SoP concerning Post Traumatic Stress Disorder Accordingly, the condition was not 'war-caused' under s 9. (c) The analysis in relation to post traumatic stress disorder was equally applicable in relation to the applicant's claim concerning dysthymic disorder, namely as to whether the minefield incident was a severe psycho-social stressor. The Tribunal was satisfied beyond reasonable doubt that the evidence did not disclose a reaction by the applicant which equated to substantial distress. In the view of the Tribunal, while there is evidence that the applicant experienced depression not long after returning to Australia, this was as a result of events not associated with his service in Vietnam. These events were also referred to by the medical experts, specifically: • the severance of the applicant's relationship with his then girlfriend • the applicant learning that one of the crewmen with whom he had worked in Vietnam had been killed there. As the Tribunal was of the view that the claim of the applicant did not satisfy the fourth Deledio step and was not war-caused, the Tribunal affirmed the decision under review in relation to post traumatic stress disorder and depressive disorder. In terms of the four-step test articulated in Deledio , which was applied by the Tribunal, the only 'step' which is in contention is the fourth step which involves consideration of causation. As I noted earlier in this judgment, the Tribunal was otherwise satisfied that there was material before it pointing to a hypothesis connecting the applicant's claimed condition of depression and dysthymic disorder with the events of 9 November 1969, that there were relevant SoPs in force supporting the hypothesis, and that the hypothesis was reasonable. As made clear by the decisions of the High Court in Byrnes and the Full Court in Deledio , once the decision-maker has determined that the hypothesis raised is reasonable, the decision-maker must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the injury was not war-caused . It is only at this stage that the decision-maker will be required to find facts from the material before it. As the High Court said in Byrnes : 'The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.' The respondent has submitted that the appeal is misconceived in so far as it is asserted in the notice of appeal that the questions of law raised on the appeal involve the misconstruction or misapplication of the SoPs. This is because the construction and application of the SoPs occurred at the third Deledio step, and at that stage of the reasoning the Tribunal found in the applicant's favour. In my view, the respondent's submission has merit. In particular, the questions of law in the notice of appeal numbered (iii), (iv), (v) and (vii) relate to issues which were decided by the Tribunal in the applicant's favour in the third Deledio step. In my view the submissions of the applicant on this point are not supported by analysis of the decision of the Tribunal. The Tribunal in its reasoning did recognise that an objective and subjective component of experiencing a severe stressor must be evident. In relation to post traumatic stress disorder, the Tribunal referred to Stoddart ; in relation to dysthymic disorder the Tribunal referred to White v Repatriation Commission [2004] FCA 633 , a decision of Spender J which in turn referred to the test in Stoddart . Applying the test in relation to both disorders, the Tribunal was of the view, within the context of the third Deledio step, that the material concerning the applicant's observation of and reactions to the minefield incident did point to the existence of both objective and subjective components. However, in order for the post traumatic stress disorder and dysthymic disorder of the applicant to be related to the applicant's service within the meaning of the Act, clearly the Tribunal needed to consider the evidence within the fourth Deledio step as to the events that occurred and whether the applicant experienced a severe stressor (in relation to post traumatic stress disorder) or a severe psychosocial stressor (in relation to dysthymic disorder). At par 38 and par 39 the Tribunal found: 'The extent of (the applicant's) involvement was in seeing some injured soldiers and I am satisfied beyond reasonable doubt that this was not an event that meets the requirements of experiencing a severe stressor as provided for in the Statements of Principles for post traumatic stress disorder...In relation to dysthymic disorder, the analysis above is equally applicable to whether the minefield incident was a severe psycho-social stressor.' Accordingly, the Tribunal formed the view on the basis of the evidence before it that the applicant's disorders were not war-caused. It was not necessary for the Tribunal to consider whether the incident 'might' evoke feelings of intense fear, helplessness or horror. In my view no error of law arises in the Tribunal's consideration of this issue.


case_title: Repatriation Commission v Hendy [2002] FCAFC 424


case_text: interaction of s 120 and s 120A were considered in detail by the Full Court of the Federal Court in Repatriation Commission v Keeley [2000] FCA 532 ; (2000) 98 FCR 108 at 114-115. In that case, which concerned the death of a veteran, Lee and Cooper JJ observed that: • Section 120(3) defines the scope of operation of s 120(1). • A reasonable hypothesis which 'connects' the death of a veteran with 'the circumstances of the particular service' of the veteran may be taken to be a theory, proposition, suggestion or postulation which suggests reasonably, although without proof, that some event in, or aspect of, the service rendered by the veteran may be linked to the death of the veteran. • If a claimant's case relies upon the raising of a reasonable hypothesis to avoid the Commission being satisfied beyond reasonable doubt that death is not 'war-caused' then s 120A(3) and s 196B will apply, if the hypothesis is one addressed by a determination made under s 196B. • Notwithstanding s 120A(3), a reasonable hypothesis may be shown to be untenable and, therefore disregarded, if the Commission is satisfied under s 120(1) that the material before it proves beyond reasonable doubt that the assumed factual foundation for the hypothesis did not exist. • Sections 120(3) and 120A(3) will apply if the material does not establish to the reasonable satisfaction of the Commission that the death was 'war-caused' and the Commission must consider whether it is satisfied beyond reasonable doubt that the death was not 'war-caused'.


case_text: his grounds of appeal the applicant claimed that the Tribunal ignored the cognitive impairment aspect of the disorders, and failed to make a finding on whether the applicant's response involved intense fear, helplessness, or horror. This ground of appeal was supported by submissions that the Tribunal failed to make findings as to whether this event might evoke such feelings, and that the Tribunal did not apply the test in Stoddart v Repatriation Commission [2003] FCA 334 and put itself in the position of Mr Byrne when he experienced the casualties which had occurred shortly prior to the arrival at the site. The applicant also claimed in questions of law (ii) and (iv) that the Tribunal failed to consider whether the applicant subjectively experienced a 'severe stressor' (Post Traumatic Stress Disorder SoP) and that the Tribunal failed to consider whether the applicant subjectively experienced a 'severe psychosocial stressor' (Depressive Disorder SoP). In making these claims, the applicant referred to the decision of Manfield J in Stoddart . In that case, Mansfield J found, inter alia , that the test of ' experiencing a severe stressor' in the SoP concerning Post Traumatic Stress Disorder encompasses a subjective element. His Honour in that case held at [40] that the Tribunal erred because it had concluded that the acceptance of the applicant's claims about the occasions giving rise to his fears 'do not objectively satisfy the relevant factors', namely being 'confronted with an event or events that involved actual...or threat of death, or serious injury'. His Honour said: 'In my judgment the language of the definition of "experiencing a severe stressor" caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (ie are subjectively experienced) the risk of death or serious injury or to physical integrity.' The applicant before me emphasises the words 'risk of death of serious injury' in the judgment of Mansfield J and submits that the Tribunal did not use this test when assessing whether Mr Byrne subjectively satisfied the SoPs. In my view the submissions of the applicant on this point are not supported by analysis of the decision of the Tribunal. The Tribunal in its reasoning did recognise that an objective and subjective component of experiencing a severe stressor must be evident. In relation to post traumatic stress disorder, the Tribunal referred to Stoddart ; in relation to dysthymic disorder the Tribunal referred to White v Repatriation Commission [2004] FCA 633 , a decision of Spender J which in turn referred to the test in Stoddart . Applying the test in relation to both disorders, the Tribunal was of the view, within the context of the third Deledio step, that the material concerning the applicant's observation of and reactions to the minefield incident did point to the existence of both objective and subjective components.


case_text: my view the submissions of the applicant on this point are not supported by analysis of the decision of the Tribunal. The Tribunal in its reasoning did recognise that an objective and subjective component of experiencing a severe stressor must be evident. In relation to post traumatic stress disorder, the Tribunal referred to Stoddart ; in relation to dysthymic disorder the Tribunal referred to White v Repatriation Commission [2004] FCA 633 , a decision of Spender J which in turn referred to the test in Stoddart . Applying the test in relation to both disorders, the Tribunal was of the view, within the context of the third Deledio step, that the material concerning the applicant's observation of and reactions to the minefield incident did point to the existence of both objective and subjective components.