case_text: In Oreb v Willcock [2005] FCAFC 196 ; (2005) 146 FCR 237 the Full Court held that there were two ways of establishing exceptional circumstances for the purposes of s 106KA(2). First, the doctor concerned could show that on the particular day or days during the relevant period 'exceptional circumstances', within the ordinary English meaning of the words, existed which affected the rendering or initiating of services by the doctor so as to take him or her outside the deeming pursuant to s 106KA(1) of engagement in inappropriate practice. Secondly, the doctor could rely upon 'exceptional circumstances' as prescribed in regulations made pursuant to s 106KA(5), being those set out in reg 11 ( Oreb 146 FCR at 240 [6] per Black CJ and Wilcox J; see also per Lander J at 265 [169], 268 [191]). 14 Although Oreb [2005] FCAFC 196 ; 146 FCR 237 concerned the construction of s 106KA and reg 11(b) the Court also made observations as to how reg 11(a) might be engaged. The Court held that once the practitioner had established that exceptional circumstances existed in either sense the practitioner had also to show a causal connection between those established circumstances and the provision of the relevant services if he or she were to get the benefit of s 106KA(2) ( Oreb 146 FCR at 240-241 [7]-[10], 266 [178]-[181]). 31 These two paragraphs appear to be part of a standard form explanation used by other committees. The same words appear in Dr Oreb's committee's report: see: Oreb 146 FCR at 262 [156]. Immediately after quoting these words, Lander J said that the committee there fell into error in its construction of s 106KA(2) and reg 11, by failing to have regard to the terms of reg 11 itself. Likewise, I am of opinion that the committees here fell into error, by putting a gloss on the meaning of s 106KA(2). They asserted that the expression 'exceptional circumstances' was to be seen 'as most likely to be of an intermittent or episodic nature, rather than a predictable on-going situation'. 77 As Lander J pointed out in Oreb (146 FCR at 268 [193]) there is always a two step inquiry as to whether exceptional circumstances are made out in accordance with s 106KA(2). The first step is to inquire whether the circumstances relied upon, whether under the ordinary English meaning or one or more of the meanings declared in reg 11, amounted to 'exceptional circumstances'. If so, the second step is to consider the effect of the circumstances so found on the rendering and initiating of services by the practitioner on the day or days in question. 78 It is common ground that there was no express consideration of reg 11(a) by either committee. At the forefront of the doctors' argument was the fact that the committees failed to conduct any analysis in the terms of, or having regard expressly to, reg 11(a). In Lee v Kelly [2005] FCAFC 197 , another decision of Black CJ, Wilcox and Lander JJ decided at the same time as Oreb [2005] FCAFC 196 ; 146 FCR 237 and Hatcher [2005] FCAFC 199 ; 146 FCR 275, Lander J, with whom the Chief Justice and Wilcox J agreed, said at [2005] FCAFC 197 [24] that if a medical practitioner relied on the provisions of s 106KA(2), the committee must satisfy themselves as to whether in doing so the medical practitioner was relying upon 'exceptional circumstances' in its ordinary English meaning or upon either of the sub-paragraphs in reg 11. He pointed out that a medical practitioner could rely on all three, but that would be unlikely. Lander J observed that it was more likely that the practitioner would rely on only one of the three matters to discharge the onus in s 106KA(2) and continued: 'If, however, the medical practitioner is not able to articulate which of the three separate legislative provisions are relied upon, then the committee must inquire as to whether the factual circumstances advanced by the medical practitioner come within any of the exceptional circumstances in s 106KA(2), or the circumstances in reg 11(a) or reg 11(b).' 79 Lander J held that the general practitioner does not need to establish that the circumstances were the dominant circumstances affecting the rendering or initiating of the services, only that the 'exceptional circumstances' acted upon or influenced the initiation or rendering of the services (see Oreb 146 FCR at 266 [178]). That was the relevant degree of relationship between the exceptional circumstances and the rendering or initiating of the services which the committees here had to consider. Each committee relied on standard paragraphs which explained its view of 'exceptional circumstances'. But in each of the present cases the committees did not apply that test, because they recited the same paragraphs used by the committee in Oreb [2005] FCAFC 196 ; 146 FCR 237 as the appropriate legal standard by which to assess the conduct of each of Drs Ho and Do. 80 The doctors submit that each of the factors on which they relied before the committees should have been considered individually by them as an occurrence on which reg 11(a) operated. Thus, for example, the doctors say that their inability to find a suitable replacement doctor was capable of being seen as an unusual occurrence. The nature of their practice was, in effect, one in which the remaining two doctors were treating a population of patients which belonged to a practice of three doctors. That created, so they said, an unusual level of need for professional attendances, in that practice of two. 81 The committees reasoned that the unusual level of need could have been met by referring the patients elsewhere or somehow through practice management. That is true, but the argument does not address the terms of reg 11(a) which refer to the cause of an unusual level of need, not to how the unusual level of need can or should be addressed once it exists. 85 The committees argued that they were not required to consider reg 11(a) unless a doctor raised matters that might arguably support the inference. But I am of opinion that the doctors did raise circumstances which were capable of being considered as falling within reg 11(a) and the committees failed to undertake their statutory function by not considering them: Lee [2005] FCAFC 197 [24]. The doctors raised matters which might arguably have supported the possible application of reg 11(a). The committees needed to address the applicability of reg 11(a) in terms if they were to discharge their functions according to law ( Oreb 146 FCR at 242 [15]). Neither committee did so. 86 To take again the simple example of when Dr Do went home sick on two occasions, leaving Dr Ho as the only doctor at the surgery, it was an unusual occurrence. That was capable of being viewed as an unusual occurrence, because it was quite out of the ordinary in the practice, even though from time to time, one of the doctors would be expected to fall sick. That does not mean that the occurrence is usual. It is in the ordinary experience of life unusual for people to fall sick and be required to go home from work. Of course it happens, but, when it does, it is a disruption to the routine not only of the person concerned but of those with whom the person works. And, when a shortage of personnel occurs in the work place through such an occurrence, the fact of the person going home sick increases the burden on that person's colleagues in the work place. The fact that practice management or other methods may have been used to address it does not rob the occurrence of its characteristic of being out of the ordinary. On those days patients presented for medical attention and only one doctor, not two, was available. 87 In the case of a medical practice, the increase in the burden is reflected in the remaining practitioner or practitioners being the only persons available to offer medical services to patients who are presenting on that day. Therefore, by going home sick, Dr Do could have created an unusual level of need for professional attendances from Dr Ho as the remaining medical practitioner in the practice available to see the practice's patients. 90 The doctors argued that the committees, in effect, posited that practice management was a panacea to each suggestion of exceptional circumstances which the doctors put forward. In Oreb 146 FCR at 240 [6] Black CJ and Wilcox J said that it was for a committee to determine whether the relevant circumstances were truly exceptional, having regard to the usual operation of a practice of a kind conducted by the person under review. They said that in the case of a general medical practitioner the touchstone would be the circumstances ordinarily faced by general practitioners. They later explained that the committee in that case had expressed a qualified view that 'exceptional circumstances' were seen as most likely to be of an intermittent or episodic nature and did accept 'some extreme on-going circumstance' may be an exceptional circumstance. Their Honours said that it was for a committee to determine the facts of the case, including whether circumstances advanced by the doctor should be regarded as exceptional, having regard to the usual operation of a general practitioner's practice. In making that determination, they said, a committee might be required to consider whether particular circumstances were foreseeable or avoidable and in relation to that type of situation, there was room for consideration of the way in which a particular practice was managed (146 FCR at 241-242 [13]). 91 Dr Do's case illustrates that considerations of practice management were relevant considerations for assessing the question under s 106KA(2) as to whether exceptional circumstances existed. In the period of nearly six months, almost one-third of the period (56 days) involved Dr Do providing more than 80 services per day. That was capable of giving rise to an inference that he found himself in a 'usual', rather than 'exceptional', situation (leaving aside the circumstances of the 5 particular days he raised separately). His answer was, however, that the combination of circumstances which were protracted, but essentially temporary, amounted to 'exceptional circumstances'. 92 I am of opinion that each committee did not look at the combination of factors having regard to the statutory test in s 106KA(2) and that they committed an error of law in failing to do so. If a three person practice is, for a temporary period, reduced to a lesser number of practitioners, that in itself is capable of being an exceptional circumstance. It is not the point to say that practice management could change the situation, except if a third doctor were able to be introduced. That was the very difficulty facing Drs Ho and Do in their practices. They claimed that no third doctor was available for the referral periods, although their case was that they were seeking to recruit one. So while each committee was entitled to consider how the situation could be managed, it was with respect to the actual practice of the doctors that they needed to address themselves. 93 The question of whether or not the committees correctly concluded that the doctors had not satisfied them that exceptional circumstances existed that affected the rendering or initiating of services by the doctors on any one or more of the 24 or 56 days involved a question of mixed fact and law. Provided that the committee applied the appropriate legal test, ordinarily they would be free to determine the facts for themselves (cp: Oreb 146 FCR at 265 [171]-[173]). 94 The doctors argued that each committee incorrectly applied the test of 'exceptional circumstances' in s 106KA(5) by which I understand them to mean that subs (5) extends the ordinary English meaning of the expression 'exceptional circumstances' to include those declared in reg 11. 95 The doctors said that the committees could not take into account questions of practice management in considering reg 11(a). They rely on remarks made by Black CJ and Wilcox J in Oreb 146 FCR at 242 [15] when they said: 'That being so, the possible application of reg 11(b) needed to have been addressed by the committee in terms, and in reasoning that was free of consideration (irrelevant in the context of reg 11) of patient management measures that might have been available and desirable.' 96 Their Honours continued that other matters including patient demand, special needs of the patients of the practice, inability of the practice to obtain or retain additional resources and the individual practitioner's work pattern were relevant to reg 11. They said whether or not the practitioner '... could have better organised his practice was irrelevant. The focus of reg 11 is the need of the patients, not the management skills of practitioners' ( Oreb 146 FCR at 242 [16]). 98 The level of need to which reg 11(a) refers cannot be connected to the way in which the individual practitioner manages his or her practice. The need is that of the patient or patients caused by the unusual occurrence. The need in reg 11(a) is 'for professional attendances', that is for services provided by a doctor to more than one patient (see reg 7 which defines 'professional attendance' as meaning a particular service). Patients need services or professional attendances. Unless patients present for or request the doctor to see them, no need for professional services could arise. If, as appears to be accepted in the construction placed on s 106KA(2) by the Full Court in Oreb 146 FCR at 241-242 [13], questions of practice management are relevant, there is a reasonable basis for construing reg 11(a) as not taking such considerations into account, in the same way as the Full Courts approached this matter in relation to reg 11(b). 99 I am of opinion that it is not appropriate to put a gloss on the words of reg 11(a) so as to confine the expression 'an unusual occurrence' to the example used by Kiefel J. Rather, the words are of general application and must be considered for the purpose of reg 11(a) in respect of each situation which a practitioner asserts is an exceptional circumstance. And just as the ordinary English meaning of the words 'exceptional circumstances' can apply to a combination of circumstances, I am of opinion that the expression 'an unusual occurrence' in reg 11(a) is not to be confined to a singular event, such as an epidemic or an accident. In legislation, the singular includes the plural in the absence of a contrary intention (see s 23(b) of the Acts Interpretation Act 1901 (Cth)). As in many areas of ordinary experience, an occurrence can be the product of a combination of causes and forces. 100 The doctors argued before the committee that on Mondays in winter a large number of patients presented for services. One might infer that they were suffering from normal winter maladies. But there is a question of judgment involved as to whether such an occurrence is 'unusual'. By itself it may not be and a properly managed practice may be able to cope with such a demand. But a practice that is one doctor short in its desired or 'ordinary' manning levels may, again, be faced with 'an unusual occurrence' formed from a combination of 'usual' and predictable circumstances. It is predictable that if a practice is short one practitioner, it may not be able to comply with the 80/20 rule if a larger number of patients present on particular days (whereas if the extra doctor were present, the practice would comply). The situation in which the practitioners would then find themselves would be unusual (because of the absence of one doctor) and temporary. And that is so even though the situation drags on because one of its characteristics is the difficulty in locating a suitable recruit to the practice. It is not usual for a three practitioner practice to have to service its patients with two practitioners.


case_outcome: cited

case_text: As McHugh, Gummow, Kirby and Hayne JJ pointed out in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 384 [78] , the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended it to have. They said: 'Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction (for example, the presumption that, in the absence of unmistakable and unambiguous language, the legislature has not intended to interfere with basic rights, freedoms or immunities: Coco v The Queen [1994] HCA 15 ; (1994) 179 CLR 427 at 437) may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.' (See also DB Management 199 CLR at 338 [34].) 33 Indeed, the provisions of reg 11 prescribed some of the matters which the Review Report regarded as exceptional circumstances. But reg 11 could not supplant the natural and ordinary meaning of 'exceptional circumstances' as used in s 106KA(2). Rather the purpose of the regulation-making power granted by the Parliament in s 106KA(5) was to set out a free-standing set of circumstances which may or may not be within the ordinary and natural meaning of 'exceptional circumstances' in s 106KA(2). 49 After the draft report had been served on Dr Ho in accordance with s 106KD(3) he made submissions upon the findings. In its final report the committee set out, in tabular form, a summary of the thrust of Dr Ho's submissions and their response. The committee noted in response to the argument that s 106KA(2) should be interpreted literally, that a purposive approach should be taken referring to Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1988) 194 CLR 355. 50 The committee's final report noted that Dr Ho's lawyers had raised legal issues in his post hearing submissions. The submissions claimed that the chairman's summary given at the conclusion of the hearing had understated the difficulties encountered by Dr Ho. The submissions provided further material concerning, among other things, the difficulties encountered by Dr Ho as a result of the former partnership litigation disputes, the problems of locating and engaging a suitable new doctor and the difficulties caused by the corporatisation of medical practices which was then occurring. Corporatisation was said to make it even more difficult than normal to recruit a suitable practitioner to the practice. 51 The committee noted that most of Dr Ho's claimed stressful circumstances were outside the referral period. It went on to say: '[70] In relation to his practice, Dr Ho did not present any additional evidence to the committee on how he might have alternatively managed his patients, for instance, by limiting hours and initiating an appointment system, or by referring patients to other practitioners or hospitals in the area. Dr Ho told the committee that in retrospect he could have handled the situation thus: "I could say no and refuse to see them because my volume was so high. I just did not" because he felt it was more an ethical issue that he see his regular patients. The committee considers the opening hours of the Familyland Medical Practice during the referral period to be both business and lifestyle decisions made by the partners in the practice and, thus, this does not constitute exceptional circumstances.'


case_text: However, in their approach the committees have made the tail of the regulation wag the dog of the statute. This eschewed the ordinary principles of statutory construction and the application of the salutary and broad discretion which the Parliament, by its words, conferred on the committees in s 106KA(2). While reg 11 gave effect to intentions expressed in the Review Report and in the Parliament, it did not restrict the circumstances which a committee must take into account in forming a view for the purposes of the application of s 106KA(2). Those intentions are matters to which the Court may have regard as part of the historical context in which s 106KA was enacted so that a purposive meaning can be given to the legislation: Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14 ; (2004) 218 CLR 273 at 280-281 [10] - [11] per McHugh ACJ, Gummow and Hayne JJ; Sydney Airport Corporation Ltd v Australian Competition Tribunal [2006] FCAFC 146 ; (2006) 155 FCR 124 at 125 [2] per French, Finn and Allsop JJ. The literal construction of s 106KA(2) and reg 11 will not defeat the intention of the Parliament (or the Executive in making the regulation).


case_outcome: followed

case_text: The process of judicial review is to do with procedures and observance by those charged with carrying out the procedures required by law, rather than with the substantive outcome: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at 598 [25] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. 104 However, I am of opinion that the way in which the committees approached the application of the tests 'exceptional circumstances' was erroneous and that on any further hearing, a committee will be able to reconsider the whole of the evidence and take further evidence, if so advised, having regard to the proper legal standards to be applied. Each committee followed an incorrect procedure and their decisions were affected by jurisdictional error. There is no reason why the doctors should not be granted the relief they seek: SZBEL 231 ALR at 598 [25] where Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said: 'It is, therefore, not to the point to ask whether the tribunal's factual conclusions were right. The relevant question is about the tribunal's processes, not its actual decision.' See also Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1229 ; (2006) 154 FCR 536 at 548-553 [56] - [81] . 105 I am opinion, for the reasons that I have given, that each committee misconstrued or failed to apply the tests for 'exceptional circumstances' under s 106KA(2) and reg 11(a). For those reasons I do not consider that this ground arises. 106 The doctors argued that because the committees focused on practice management as a substantive answer to the doctors' reliance on 'exceptional circumstances', this demonstrated that each committee had an inflexibility of approach which would entitle a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings or process, reasonably to apprehend that each committee might not have brought an impartial mind to making the decision. In deciding that question, the Court determines the issue objectively: Hot Holdings Pty Ltd v Creasy [2002] HCA 51 ; (2002) 210 CLR 438 at 459 [68] per McHugh J citing Re Refugee Review Tribunal; Ex Parte H [2001] HCA 28 ; (2001) 75 ALJR 982 at 990 [28] ; [2001] HCA 28 ; 179 ALR 425 at 434-435 per Gleeson CJ, Gaudron and Gummow JJ. 107 Because I am of opinion that each committee made an error of law in their approach, as explained above, I am not satisfied that an apprehension of bias would be perceived by the hypothetical fair-minded lay person. Rather that person would consider that the committee was applying a wrong view of the law to its task and there is no reason to think that if properly instructed as to the law to be applied, the committee would not reapply itself appropriately to the issue. 108 However, I am more troubled about the question raised late in the argument that each of the committees has been the active respondent in the proceedings. Each of the committees submitted that there was no other respondent who had a right of appearance and that the committees were the only proper respondents in proceedings brought for judicial review of their decisions. 110 The members of the tribunal are the relevant officers of the Commonwealth for the purposes of the proceedings and it is necessary that they be joined as parties to the proceedings: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at 173 [43] per McHugh J, 185-186 [91] per Gummow J, 199 [153] per Kirby J, 204 [180] per Hayne J. Here, the tribunal took what the High Court said in The Queen v Australian Broadcasting Tribunal; Ex Parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13 at 35-36 was an unusual course of contesting the doctors' case for relief by presenting a substantive argument. Gibbs, Stephen, Mason, Aickin and Wilson JJ said: 'In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which may take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal.'


case_outcome: approved

case_text: The members of the tribunal are the relevant officers of the Commonwealth for the purposes of the proceedings and it is necessary that they be joined as parties to the proceedings: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at 173 [43] per McHugh J, 185-186 [91] per Gummow J, 199 [153] per Kirby J, 204 [180] per Hayne J. Here, the tribunal took what the High Court said in The Queen v Australian Broadcasting Tribunal; Ex Parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13 at 35-36 was an unusual course of contesting the doctors' case for relief by presenting a substantive argument. Gibbs, Stephen, Mason, Aickin and Wilson JJ said: 'In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which may take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal.' 112 It is not satisfactory that the decision of a committee can be challenged, including on the basis that there is an apprehension of bias alleged against them, and have to defend themselves actively in proceedings of this kind, for the reasons given in Hardiman 144 CLR at 35-36. Moreover, the fact that each committee has defended its own interpretation of the legislation and their dismissal of the doctors' cases would suggest to a fair-minded lay person that they will find it difficult entirely to put out of their mind the approach which the Court in proceedings such as this finds to be erroneous if they were to come to reapply themselves to the task. Not everyone, especially a body which has actively defended themselves in contested litigation, would be able to approach the task anew, unaffected by the forensic demonstration of their previous error of approach. Moreover, there is no reason here not to order them to pay the doctors' costs. A fair-minded lay person would be entitled to think that the committees here would not have the equanimity of Sir Winston Churchill, who said: 'In the course of my life, I have often had to eat my own words, and I must confess that I have always found it a wholesome diet.' 113 That is not to suggest any adverse view about the members of either of the two committees. There is no reason to doubt that they would try to apply the law as the Court has declared it. But it is unsatisfactory that having actively sought to uphold a view of the law and their conclusions adverse to the doctors, the same committees should then be called upon to reconsider the matter.


case_text: Engaging in resale price maintenance is engaging in anti-competitive conduct, which the legislature has prohibited in the public interest. As Merkel J said in Australian Competition and Consumer Commission v Humax Pty Ltd [2005] FCA 706 (" Humax ") at [5], engaging in resale price maintenance is a serious offence. This is apparent from the magnitude of the pecuniary penalties that corporations, and those through whom they act, may face for contravention of s 48 of the Act . 11 The consent orders proposed by the parties include: (a) declarations under s 21 of the Federal Court of Australia Act 1976 (Cth) that the particular conduct in which each of the respondents engaged constituted a contravention of the Act ; (b) injunctions restraining each of the respondents from engaging in proscribed conduct for a period of three years from the date of the order; (c) orders requiring TEAC to establish an education and compliance programme for its employees; (d) an order that TEAC pay a pecuniary penalty of $175,000 in four instalments; and (e) an order that Mr Allison pay a pecuniary penalty of $15,000 in four instalments. There is to be a further order, providing for what is to happen in the event of default in the payment of any instalment of penalty. 14 The proposed probation order in this case is very like the probation orders made by Merkel J in Humax and by Tracey J in Digital Products. Section 86D contemplates orders of the kind proposed as adverse publicity orders: see orders 8 and 9 in the proposed minute of orders. 28 I also accept that the proposed penalties are consistent with the proper application of the totality and parity principles: compare Digital Products and Dataline at [64]-[75]. I was referred to a schedule of previous determinations. Whilst I have had regard to it, I have also borne in mind the observations in Dataline , where a Full Court said (at [67]-[68]): [T] he Court is confirmed in the view that there is little to be gained in undertaking ... a detailed comparative analysis of the conduct of each corporation in the identified cases, the extent to which particular officers of those corporations engaged in the contravening conduct or the scale and dimension of the conduct. The constellation of circumstances, essential character of the conduct and the factors to be weighed by the Court are inevitably sufficiently different in each case that previous determinations ultimately provide little utility in precisely informing the appropriate pecuniary penalty to be imposed in any particular contravention. However, an assessment of previous determinations in relation to resale price maintenance conduct may provide a high level broad range within which an appropriate pecuniary penalty may be imposed having regard to the character and content of the contravention and other considerations reflecting some elements broadly consistent with the evidence in the particular case. After making these observations, the Court undertook an analysis of several cases with sufficiently similar facts to provide a high level broad range of comparison. The penalties imposed in a number of cases ( Australian Consumer and Competition Commission v Dermalogica Pty Ltd [2005] 215 ALR 482 (" Dermalogica "), Humax , Australian Competition and Consumer Commission v Tooltechnic Systems (Aust) Pty Ltd [2007] FCA 432 , Australian Competition and Consumer Commission v Westminster Retail Pty Ltd (in liquidation) [2005] FCA 1299 , Australian Competition and Consumer Commission v High Adventure Pty Ltd [2005] FCAFC 247 , Australian Competition and Consumer Commission v Cambur Pty Ltd [2006] FCA 1027 , Dataline (upholding the decision in Australian Consumer and Competition Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665), Jurlique , and Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (in liquidation) [2005] FCA 1212) give a high level broad range of comparison for this case. 30 I accept that, in the circumstances mentioned above and on the financial material before the Court, it is appropriate to order the payment of penalties by instalments. The parties have agreed to the inclusion in orders of a default provision. The Court made similar orders in Digital Products and Humax .


case_text: The Court is not bound to make the orders on which the parties have agreed. However, having read the Joint Submissions and heard counsel today, I am satisfied that these orders are appropriate and should be made. The declarations serve the public interest by demonstrating that the impugned conduct contravenes the Act : see Australian Consumer and Competition Commission v Midland Brick Company Pty Ltd (2004) 207 ALR 329 at 333 and Rural Press Limited v Australian Consumer and Competition Commission [2003] HCA 75 ; (2003) 216 CLR 53 at 91.


case_title: Rural Press Limited v Australian Consumer and Competition Commission [2003] HCA 75 ; (2003) 216 CLR 53


case_text: The injunctive relief is designed to make it clear to the respondents what conduct on their parts is proscribed in the three year period during which the injunctions are to be operative: see Australian Consumer and Competition Commission v Francis [2004] FCA 487 ; (2004) 142 FCR 1 at 39 and Australian Consumer and Competition Commission v Digital Products [2006] FCA 1732 (" Digital Products ") at [12].


case_text: The injunctive relief is designed to make it clear to the respondents what conduct on their parts is proscribed in the three year period during which the injunctions are to be operative: see Australian Consumer and Competition Commission v Francis [2004] FCA 487 ; (2004) 142 FCR 1 at 39 and Australian Consumer and Competition Commission v Digital Products [2006] FCA 1732 (" Digital Products ") at [12]. 14 The proposed probation order in this case is very like the probation orders made by Merkel J in Humax and by Tracey J in Digital Products. Section 86D contemplates orders of the kind proposed as adverse publicity orders: see orders 8 and 9 in the proposed minute of orders. 28 I also accept that the proposed penalties are consistent with the proper application of the totality and parity principles: compare Digital Products and Dataline at [64]-[75]. I was referred to a schedule of previous determinations. Whilst I have had regard to it, I have also borne in mind the observations in Dataline , where a Full Court said (at [67]-[68]): [T] he Court is confirmed in the view that there is little to be gained in undertaking ... a detailed comparative analysis of the conduct of each corporation in the identified cases, the extent to which particular officers of those corporations engaged in the contravening conduct or the scale and dimension of the conduct. The constellation of circumstances, essential character of the conduct and the factors to be weighed by the Court are inevitably sufficiently different in each case that previous determinations ultimately provide little utility in precisely informing the appropriate pecuniary penalty to be imposed in any particular contravention. However, an assessment of previous determinations in relation to resale price maintenance conduct may provide a high level broad range within which an appropriate pecuniary penalty may be imposed having regard to the character and content of the contravention and other considerations reflecting some elements broadly consistent with the evidence in the particular case. After making these observations, the Court undertook an analysis of several cases with sufficiently similar facts to provide a high level broad range of comparison. The penalties imposed in a number of cases ( Australian Consumer and Competition Commission v Dermalogica Pty Ltd [2005] 215 ALR 482 (" Dermalogica "), Humax , Australian Competition and Consumer Commission v Tooltechnic Systems (Aust) Pty Ltd [2007] FCA 432 , Australian Competition and Consumer Commission v Westminster Retail Pty Ltd (in liquidation) [2005] FCA 1299 , Australian Competition and Consumer Commission v High Adventure Pty Ltd [2005] FCAFC 247 , Australian Competition and Consumer Commission v Cambur Pty Ltd [2006] FCA 1027 , Dataline (upholding the decision in Australian Consumer and Competition Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665), Jurlique , and Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (in liquidation) [2005] FCA 1212) give a high level broad range of comparison for this case. 30 I accept that, in the circumstances mentioned above and on the financial material before the Court, it is appropriate to order the payment of penalties by instalments. The parties have agreed to the inclusion in orders of a default provision. The Court made similar orders in Digital Products and Humax .


case_text: The relevant principles governing the imposition of pecuniary penalties are discussed in Australian Consumer and Competition Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146 (" Dataline ") at [60]-[75]; Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,151-52, 154; NW Frozen Foods Pty Ltd v Australian Consumer and Competition Commission (1997) 71 FCR 285 at 290-295; J McPhee & Son (Aust) Pty Ltd v Australian Consumer and Competition Commission (2000) 172 ALR 532; and Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 (" Mobil Oil ") at [51]-[58]. These authorities indicate that further relevant matters include: (a) the size of the contravening company; (b) the degree of power the company has, as evidenced by its market share and ease of entry into the market; (c) whether the conduct was systematic, deliberate, or covert; (d) the period over which the conduct occurred; (e) the effect on the functioning of the market and other economic effects of the conduct; (f) whether the contravention arose out of the conduct of senior management or at a lower level; (g) whether the company has a corporate culture conducive to compliance with the Act , as evidenced by educational programs and discipline, or other corrective measures in response to an acknowledged contravention; and (h) whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention. See also Australian Consumer and Competition Commission v Jurlique International Pty Ltd [2007] FCA 79 (" Jurlique ") at [51]; Australian Consumer and Competition Commission v Knight [2007] FCA 1011 (" Knight ") at [70]; and Australian Consumer and Competition Commission v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617 (" Visy Industries ") at [303].


case_title: Trade Practices Commission v CSR Ltd (1991) ATPR 41-076


case_title: NW Frozen Foods Pty Ltd v Australian Consumer and Competition Commission (1997) 71 FCR 285


case_title: J McPhee & Son (Aust) Pty Ltd v Australian Consumer and Competition Commission (2000) 172 ALR 532


case_title: Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72


case_text: The relevant principles governing the imposition of pecuniary penalties are discussed in Australian Consumer and Competition Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146 (" Dataline ") at [60]-[75]; Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,151-52, 154; NW Frozen Foods Pty Ltd v Australian Consumer and Competition Commission (1997) 71 FCR 285 at 290-295; J McPhee & Son (Aust) Pty Ltd v Australian Consumer and Competition Commission (2000) 172 ALR 532; and Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 (" Mobil Oil ") at [51]-[58]. These authorities indicate that further relevant matters include: (a) the size of the contravening company; (b) the degree of power the company has, as evidenced by its market share and ease of entry into the market; (c) whether the conduct was systematic, deliberate, or covert; (d) the period over which the conduct occurred; (e) the effect on the functioning of the market and other economic effects of the conduct; (f) whether the contravention arose out of the conduct of senior management or at a lower level; (g) whether the company has a corporate culture conducive to compliance with the Act , as evidenced by educational programs and discipline, or other corrective measures in response to an acknowledged contravention; and (h) whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention. See also Australian Consumer and Competition Commission v Jurlique International Pty Ltd [2007] FCA 79 (" Jurlique ") at [51]; Australian Consumer and Competition Commission v Knight [2007] FCA 1011 (" Knight ") at [70]; and Australian Consumer and Competition Commission v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617 (" Visy Industries ") at [303]. 17 Ordinary sentencing principles are relevant, including specific and general deterrence. Thus in Australian Consumer and Competition Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301 at [39], Goldberg J concluded: The penalty imposed must be substantial enough that the party realises the seriousness of its conduct and is not inclined to repeat such conduct. Obviously the sum required to achieve this object will be larger where the Court is setting a penalty for a company with vast resources. However, as specific deterrence is only one element and general deterrence must also be achieved, consideration of the party's capacity to pay must be weighed against the need to impose a sum which members of the public will recognise as significant and proportionate to the seriousness of the contravention. What is known in the criminal law as the "totality principle" is also relevant. That is, the total penalty for related offences ought not to exceed what is appropriate for the entire contravening conduct involved: see Jurlique at [52]; Trade Practices Commission v TNT Australia Pty Ltd & Ors (1995) ATPR 41-375 at 40,169; Knight at [73]; and Visy Industries at [304]. The "parity principle" is also relevant, namely, all other things being equal, like cases should be treated alike. 28 I also accept that the proposed penalties are consistent with the proper application of the totality and parity principles: compare Digital Products and Dataline at [64]-[75]. I was referred to a schedule of previous determinations. Whilst I have had regard to it, I have also borne in mind the observations in Dataline , where a Full Court said (at [67]-[68]): [T] he Court is confirmed in the view that there is little to be gained in undertaking ... a detailed comparative analysis of the conduct of each corporation in the identified cases, the extent to which particular officers of those corporations engaged in the contravening conduct or the scale and dimension of the conduct. The constellation of circumstances, essential character of the conduct and the factors to be weighed by the Court are inevitably sufficiently different in each case that previous determinations ultimately provide little utility in precisely informing the appropriate pecuniary penalty to be imposed in any particular contravention. However, an assessment of previous determinations in relation to resale price maintenance conduct may provide a high level broad range within which an appropriate pecuniary penalty may be imposed having regard to the character and content of the contravention and other considerations reflecting some elements broadly consistent with the evidence in the particular case. After making these observations, the Court undertook an analysis of several cases with sufficiently similar facts to provide a high level broad range of comparison. The penalties imposed in a number of cases ( Australian Consumer and Competition Commission v Dermalogica Pty Ltd [2005] 215 ALR 482 (" Dermalogica "), Humax , Australian Competition and Consumer Commission v Tooltechnic Systems (Aust) Pty Ltd [2007] FCA 432 , Australian Competition and Consumer Commission v Westminster Retail Pty Ltd (in liquidation) [2005] FCA 1299 , Australian Competition and Consumer Commission v High Adventure Pty Ltd [2005] FCAFC 247 , Australian Competition and Consumer Commission v Cambur Pty Ltd [2006] FCA 1027 , Dataline (upholding the decision in Australian Consumer and Competition Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665), Jurlique , and Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (in liquidation) [2005] FCA 1212) give a high level broad range of comparison for this case.


case_text: The relevant principles governing the imposition of pecuniary penalties are discussed in Australian Consumer and Competition Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146 (" Dataline ") at [60]-[75]; Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,151-52, 154; NW Frozen Foods Pty Ltd v Australian Consumer and Competition Commission (1997) 71 FCR 285 at 290-295; J McPhee & Son (Aust) Pty Ltd v Australian Consumer and Competition Commission (2000) 172 ALR 532; and Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 (" Mobil Oil ") at [51]-[58]. These authorities indicate that further relevant matters include: (a) the size of the contravening company; (b) the degree of power the company has, as evidenced by its market share and ease of entry into the market; (c) whether the conduct was systematic, deliberate, or covert; (d) the period over which the conduct occurred; (e) the effect on the functioning of the market and other economic effects of the conduct; (f) whether the contravention arose out of the conduct of senior management or at a lower level; (g) whether the company has a corporate culture conducive to compliance with the Act , as evidenced by educational programs and discipline, or other corrective measures in response to an acknowledged contravention; and (h) whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention. See also Australian Consumer and Competition Commission v Jurlique International Pty Ltd [2007] FCA 79 (" Jurlique ") at [51]; Australian Consumer and Competition Commission v Knight [2007] FCA 1011 (" Knight ") at [70]; and Australian Consumer and Competition Commission v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617 (" Visy Industries ") at [303]. 17 Ordinary sentencing principles are relevant, including specific and general deterrence. Thus in Australian Consumer and Competition Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301 at [39], Goldberg J concluded: The penalty imposed must be substantial enough that the party realises the seriousness of its conduct and is not inclined to repeat such conduct. Obviously the sum required to achieve this object will be larger where the Court is setting a penalty for a company with vast resources. However, as specific deterrence is only one element and general deterrence must also be achieved, consideration of the party's capacity to pay must be weighed against the need to impose a sum which members of the public will recognise as significant and proportionate to the seriousness of the contravention. What is known in the criminal law as the "totality principle" is also relevant. That is, the total penalty for related offences ought not to exceed what is appropriate for the entire contravening conduct involved: see Jurlique at [52]; Trade Practices Commission v TNT Australia Pty Ltd & Ors (1995) ATPR 41-375 at 40,169; Knight at [73]; and Visy Industries at [304]. The "parity principle" is also relevant, namely, all other things being equal, like cases should be treated alike.


case_text: The relevant principles governing the imposition of pecuniary penalties are discussed in Australian Consumer and Competition Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146 (" Dataline ") at [60]-[75]; Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,151-52, 154; NW Frozen Foods Pty Ltd v Australian Consumer and Competition Commission (1997) 71 FCR 285 at 290-295; J McPhee & Son (Aust) Pty Ltd v Australian Consumer and Competition Commission (2000) 172 ALR 532; and Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 (" Mobil Oil ") at [51]-[58]. These authorities indicate that further relevant matters include: (a) the size of the contravening company; (b) the degree of power the company has, as evidenced by its market share and ease of entry into the market; (c) whether the conduct was systematic, deliberate, or covert; (d) the period over which the conduct occurred; (e) the effect on the functioning of the market and other economic effects of the conduct; (f) whether the contravention arose out of the conduct of senior management or at a lower level; (g) whether the company has a corporate culture conducive to compliance with the Act , as evidenced by educational programs and discipline, or other corrective measures in response to an acknowledged contravention; and (h) whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention. See also Australian Consumer and Competition Commission v Jurlique International Pty Ltd [2007] FCA 79 (" Jurlique ") at [51]; Australian Consumer and Competition Commission v Knight [2007] FCA 1011 (" Knight ") at [70]; and Australian Consumer and Competition Commission v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617 (" Visy Industries ") at [303]. 17 Ordinary sentencing principles are relevant, including specific and general deterrence. Thus in Australian Consumer and Competition Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301 at [39], Goldberg J concluded: The penalty imposed must be substantial enough that the party realises the seriousness of its conduct and is not inclined to repeat such conduct. Obviously the sum required to achieve this object will be larger where the Court is setting a penalty for a company with vast resources. However, as specific deterrence is only one element and general deterrence must also be achieved, consideration of the party's capacity to pay must be weighed against the need to impose a sum which members of the public will recognise as significant and proportionate to the seriousness of the contravention. What is known in the criminal law as the "totality principle" is also relevant. That is, the total penalty for related offences ought not to exceed what is appropriate for the entire contravening conduct involved: see Jurlique at [52]; Trade Practices Commission v TNT Australia Pty Ltd & Ors (1995) ATPR 41-375 at 40,169; Knight at [73]; and Visy Industries at [304]. The "parity principle" is also relevant, namely, all other things being equal, like cases should be treated alike. 18 Further, the fact that the ACCC and the respondents have put forward a penalty that they have agreed as between themselves is relevant, although not conclusive because the Court retains the responsibility for imposing penalties: see Dataline at [59]; Visy Industries at [305]; and Australian Consumer and Competition Commission v ABB Power Transmission Pty Ltd (2004) ATPR 42-011; [2004] FCA 819 at [46] - [56] .


case_text: Ordinary sentencing principles are relevant, including specific and general deterrence. Thus in Australian Consumer and Competition Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301 at [39], Goldberg J concluded: The penalty imposed must be substantial enough that the party realises the seriousness of its conduct and is not inclined to repeat such conduct. Obviously the sum required to achieve this object will be larger where the Court is setting a penalty for a company with vast resources. However, as specific deterrence is only one element and general deterrence must also be achieved, consideration of the party's capacity to pay must be weighed against the need to impose a sum which members of the public will recognise as significant and proportionate to the seriousness of the contravention. What is known in the criminal law as the "totality principle" is also relevant. That is, the total penalty for related offences ought not to exceed what is appropriate for the entire contravening conduct involved: see Jurlique at [52]; Trade Practices Commission v TNT Australia Pty Ltd & Ors (1995) ATPR 41-375 at 40,169; Knight at [73]; and Visy Industries at [304]. The "parity principle" is also relevant, namely, all other things being equal, like cases should be treated alike.


case_title: Trade Practices Commission v TNT Australia Pty Ltd & Ors (1995) ATPR 41-375


case_text: Further, the fact that the ACCC and the respondents have put forward a penalty that they have agreed as between themselves is relevant, although not conclusive because the Court retains the responsibility for imposing penalties: see Dataline at [59]; Visy Industries at [305]; and Australian Consumer and Competition Commission v ABB Power Transmission Pty Ltd (2004) ATPR 42-011; [2004] FCA 819 at [46] - [56] .


case_text: I also accept that the proposed penalties are consistent with the proper application of the totality and parity principles: compare Digital Products and Dataline at [64]-[75]. I was referred to a schedule of previous determinations. Whilst I have had regard to it, I have also borne in mind the observations in Dataline , where a Full Court said (at [67]-[68]): [T] he Court is confirmed in the view that there is little to be gained in undertaking ... a detailed comparative analysis of the conduct of each corporation in the identified cases, the extent to which particular officers of those corporations engaged in the contravening conduct or the scale and dimension of the conduct. The constellation of circumstances, essential character of the conduct and the factors to be weighed by the Court are inevitably sufficiently different in each case that previous determinations ultimately provide little utility in precisely informing the appropriate pecuniary penalty to be imposed in any particular contravention. However, an assessment of previous determinations in relation to resale price maintenance conduct may provide a high level broad range within which an appropriate pecuniary penalty may be imposed having regard to the character and content of the contravention and other considerations reflecting some elements broadly consistent with the evidence in the particular case. After making these observations, the Court undertook an analysis of several cases with sufficiently similar facts to provide a high level broad range of comparison. The penalties imposed in a number of cases ( Australian Consumer and Competition Commission v Dermalogica Pty Ltd [2005] 215 ALR 482 (" Dermalogica "), Humax , Australian Competition and Consumer Commission v Tooltechnic Systems (Aust) Pty Ltd [2007] FCA 432 , Australian Competition and Consumer Commission v Westminster Retail Pty Ltd (in liquidation) [2005] FCA 1299 , Australian Competition and Consumer Commission v High Adventure Pty Ltd [2005] FCAFC 247 , Australian Competition and Consumer Commission v Cambur Pty Ltd [2006] FCA 1027 , Dataline (upholding the decision in Australian Consumer and Competition Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665), Jurlique , and Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (in liquidation) [2005] FCA 1212) give a high level broad range of comparison for this case.


case_title: Australian Competition and Consumer Commission v Westminster Retail Pty Ltd (in liquidation) [2005] FCA 1299


case_title: Australian Competition and Consumer Commission v High Adventure Pty Ltd [2005] FCAFC 247


case_title: Australian Competition and Consumer Commission v Cambur Pty Ltd [2006] FCA 1027


case_title: Australian Consumer and Competition Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665


case_title: Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (in liquidation) [2005] FCA 1212


case_text: There is no specific evidence as to the amount of loss or damage that resulted from the contravening conduct, but this is not a mitigating factor in the imposition of penalties: see Dataline at [62]; Trade Practices Commission v ICI Australia Operations Pty Ltd (1991) 105 ALR 115 at 119; Australian Consumer and Competition Commission v DM Faulkner Pty Ltd [2004] FCA 1666 at [64] ; and Dermalogica at [81].


case_title: Australian Consumer and Competition Commission v DM Faulkner Pty Ltd [2004] FCA 1666


case_text: I also accept that the proposed penalties are consistent with the proper application of the totality and parity principles: compare Digital Products and Dataline at [64]-[75]. I was referred to a schedule of previous determinations. Whilst I have had regard to it, I have also borne in mind the observations in Dataline , where a Full Court said (at [67]-[68]): [T] he Court is confirmed in the view that there is little to be gained in undertaking ... a detailed comparative analysis of the conduct of each corporation in the identified cases, the extent to which particular officers of those corporations engaged in the contravening conduct or the scale and dimension of the conduct. The constellation of circumstances, essential character of the conduct and the factors to be weighed by the Court are inevitably sufficiently different in each case that previous determinations ultimately provide little utility in precisely informing the appropriate pecuniary penalty to be imposed in any particular contravention. However, an assessment of previous determinations in relation to resale price maintenance conduct may provide a high level broad range within which an appropriate pecuniary penalty may be imposed having regard to the character and content of the contravention and other considerations reflecting some elements broadly consistent with the evidence in the particular case. After making these observations, the Court undertook an analysis of several cases with sufficiently similar facts to provide a high level broad range of comparison. The penalties imposed in a number of cases ( Australian Consumer and Competition Commission v Dermalogica Pty Ltd [2005] 215 ALR 482 (" Dermalogica "), Humax , Australian Competition and Consumer Commission v Tooltechnic Systems (Aust) Pty Ltd [2007] FCA 432 , Australian Competition and Consumer Commission v Westminster Retail Pty Ltd (in liquidation) [2005] FCA 1299 , Australian Competition and Consumer Commission v High Adventure Pty Ltd [2005] FCAFC 247 , Australian Competition and Consumer Commission v Cambur Pty Ltd [2006] FCA 1027 , Dataline (upholding the decision in Australian Consumer and Competition Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665), Jurlique , and Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (in liquidation) [2005] FCA 1212) give a high level broad range of comparison for this case. 29 There is no specific evidence as to the amount of loss or damage that resulted from the contravening conduct, but this is not a mitigating factor in the imposition of penalties: see Dataline at [62]; Trade Practices Commission v ICI Australia Operations Pty Ltd (1991) 105 ALR 115 at 119; Australian Consumer and Competition Commission v DM Faulkner Pty Ltd [2004] FCA 1666 at [64] ; and Dermalogica at [81].


case_text: The test of whether a person 'had reasonable grounds to expect ... that the company would comply with the agreement' is an objective test. The issue is thus whether, having regard to those existing circumstances of which Mr Blaikie knew or, had he acted reasonably, ought to have known, it was reasonable for him to expect that Employment would comply with its Payment Agreement ( Deputy Commissioner of Taxation v Saunig [2002] NSWCA 390 ; (2002) 55 NSWLR 722 at 729-730). As Williams JA, with whom McMurdo P and Atkinson J agreed, observed in Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 at [24]: 'an agreement pursuant to s. 222ALA is not to be entered into lightly, and any director must be conscious of the implications for the company so doing. Almost invariably the company will be in some financial difficulty and any director acting reasonably would appreciate that special steps would need to be taken if the company was to comply with its obligations thereunder.'


case_title: Deputy Commissioner of Taxation v Saunig [2002] NSWCA 390 ; (2002) 55 NSWLR 722


case_outcome: referred to

case_text: On 15 September 2003, a Registrar of the Federal Court made sequestration orders against Mr and Mrs Maxwell-Smith. The debt which gave rise to the orders was the certificate of assessment of the costs order made by the Supreme Court of New South Wales on 8 December 1999. However, on 2 July 2004 Moore J annulled the bankruptcies of Mr and Mrs Maxwell-Smith under s 153B of the Act ; see Maxwell-Smith v S & E Hall, in the matter of Maxwell-Smith [2004] FCA 840. His Honour was satisfied that the sequestration orders ought not to have been made, on the basis of an "unwitting" denial of procedural fairness before the Registrar; see [20]. 20 Moore J observed at [24] that the annulment application was not made upon the basis that Mr and Mrs Maxwell-Smith were solvent when the orders were made. Nevertheless, his Honour recorded an acknowledgment of counsel for the Trustee that "probably" Mr and Mrs Maxwell-Smith were solvent when the sequestration orders were made. His Honour also noted that counsel for S & E Hall did not dispute this proposition. 21 Moore J went on to say that there was insufficient evidence before him to make a positive finding that Mr and Mrs Maxwell-Smith were solvent. But he said that they may well be solvent, and may well have been when the sequestration orders were made; see at [24]. He took this into account in the exercise of his discretion to make the annulment order. 22 In evidence before me is a letter dated 27 August 2004 from solicitors for S & E Hall to the solicitors then acting for Mr and Mrs Maxwell-Smith setting out an offer to settle various disputes between the parties. The letter was written "without prejudice". However, counsel for S & E Hall objected to the document only upon the grounds of relevance and hearsay. He did not object to it on the ground that it was not to be adduced under s 131 of the Evidence Act 1995 (Cth). I admitted the letter, along with a number of other exhibits to Mrs Maxwell-Smith's Affidavit filed on 14 June 2006, into evidence but not as proof of the facts. 23 The letter contained the following statement:- "We note that apparently your clients have instructed their counsel that they have no financial capacity to meet any verdict. This is clearly nonsense. As you are doubtless aware, your clients own an unencumbered property in Tura Beach NSW valued at conservatively $700,000.00. They also own a 50% interest in the property at Jindabyne." 35 The asserted claim for $100,000 for damages caused by the creditor's "misuse" of the Act since September 2003, is apparently a claim in respect of the sequestration order made on 15 September 2003 which was subsequently annulled by Moore J. 38 What was required in order to establish that the claim had substance was some evidence to suggest that the 2003 bankruptcy was obtained for a purpose or object beyond that which was offered by the legal process. The observations of Moore J on the annulment of the bankruptcy do not support such a claim. Nor is there any evidence which would give rise to that suggestion. 39 The same may be said of the second claim which is asserted, namely the administration costs of the "unlawful" bankruptcy arising from the sequestration order of September 2003. 40 There is no evidence whatsoever to suggest that the third claim, namely the "unlawful" execution of the garnishee order has any substance. 47 Second, the observations made by Moore J in July 2004 make it plain that S & E Hall was aware at that time of the probability that Mrs Maxwell-Smith was solvent. 48 Third, the letter from S & E Hall's solicitors states in unequivocal terms that Mr and Mrs Maxwell-Smith owned assets the value of which greatly exceeded their debts. In my view it is clear from this letter that S & E Hall was aware of Mrs Maxwell-Smith's ability to meet her liabilities in August 2004. 49 It seems to me that what was required of S & E Hall was some evidence to dispel the natural inference arising from lengthy delay and knowledge of solvency, that the bankruptcy notice was issued for a purpose collateral to that of pursuit of insolvency proceedings. Instead, there was no evidence from S & E Hall explaining the delay or demonstrating that Mrs Maxwell-Smith's financial position had deteriorated since 2004.


case_text: This question is to be determined by reference to legal considerations, not by reference to practicalities; see Re Brink; Ex parte Commercial Banking Company of Sydney Limited (1980) 44 FLR 135 at 139; Re Ling; Ex parte Ling v Commonwealth of Australia (1995) 58 FCR 129 at 132.


case_title: Re Ling; Ex parte Ling v Commonwealth of Australia (1995) 58 FCR 129


case_title: Guss v Johnstone (2000) 171 ALR 598

case_text: The state of satisfaction required by s 40(1)(g) and s 41(7) involves a weighing of the considerations as to the legal and factual merits of the claim relied upon by the debtor and the justice of permitting the bankruptcy proceedings to go ahead or requiring those proceedings to await the determination of the claim; Guss v Johnstone (2000) 171 ALR 598 at [40].


case_text: The debtor must satisfy the Court by evidence that there is sufficient substance to the claim to make it one which the debtor ought, in justice, be permitted to have heard and determined rather than be forced to comply with the bankruptcy notice by payment, or to commit an act of bankruptcy; see Re Glew; Glew v Harrowell of Hunt and Hunt Lawyers (2003) 198 ALR 331 at [12]; see also the summary of authorities set out by Lindgren J at [9] [11]. 31 Each of the cross-claims asserted by Mr and Mrs Maxwell-Smith arises out of facts which post-date the High Court's costs order. It would therefore seem that, as a matter of law, the claims could not have been set up in the proceeding in which the judgment was obtained. 32 Nevertheless, I am not satisfied that any of the cross-claims has any legal or factual merit. The claims do not therefore have sufficient substance to warrant their determination rather than to force compliance with the bankruptcy notice, if I am otherwise satisfied of the validity of the notice. 33 It is true that the debtor need not adduce admissible evidence which would make out a prima facie case at a final hearing; but the Court must be satisfied by evidence that the claim has a reasonable prospect of success; Ebert v Union Trustee Co of Australia Limited [1960] HCA 50 ; (1960) 104 CLR 346 at 351; see also Re Glew at [9].


case_text: It is true that the debtor need not adduce admissible evidence which would make out a prima facie case at a final hearing; but the Court must be satisfied by evidence that the claim has a reasonable prospect of success; Ebert v Union Trustee Co of Australia Limited [1960] HCA 50 ; (1960) 104 CLR 346 at 351; see also Re Glew at [9]. 34 Here, Mrs Maxwell-Smith's evidence shows "no more than that she propounds" a counter-claim or cross-demand; see Ebert at 350. 36 His Honour did not annul the bankruptcy on the ground of the debtors' solvency. Even if Mr and Mrs Maxwell-Smith were solvent at the time when the order was made, there is no evidence before me which could satisfy the test stated in Ebert as to the reasonableness of the asserted claim.


case_text: There is nothing to suggest that the bankruptcy was brought about by a malicious prosecution or a collateral abuse of process so as to give rise to a claim for damages within the principles stated by the High Court; see Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 at [3] , and [209] [211]; see also Laferla v Birdon Sands Pty Limited (2005) Aust Tort Rep 81-786 at [121] [122]. 46 First, the bankruptcy notice seeks payment of a debt for a small amount of money based on a judgment debt which is over 5 years old. No satisfactory explanation has been given as to why the notice was issued after such a lengthy delay. It is true that the debt is not statute barred, but the right to pursue it by invoking the Court's processes must be subject to the operation of the principles respecting abuse of process; Batistatos at [62] [65].


case_text: There is nothing to suggest that the bankruptcy was brought about by a malicious prosecution or a collateral abuse of process so as to give rise to a claim for damages within the principles stated by the High Court; see Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 at [3] , and [209] [211]; see also Laferla v Birdon Sands Pty Limited (2005) Aust Tort Rep 81-786 at [121] [122].


case_text: The Court's power to set aside a bankruptcy notice arises from s 30 of the Act . But the Act confers no general discretion to set aside a bankruptcy notice that is valid in form and not an abuse of process; Re Briggs; Ex Parte Briggs v Deputy Commissioner of Taxation (1986) 12 FCR 310 at 311 - 312; Re Athans; Ex Parte Athans (1991) 29 FCR 302 at 310; Australian Securities and Investments Commission v Forge [2003] FCAFC 274 ; (2004) 48 ACSR 474 at [27] .


case_title: Re Athans; Ex Parte Athans (1991) 29 FCR 302


case_title: Australian Securities and Investments Commission v Forge [2003] FCAFC 274 ; (2004) 48 ACSR 474


case_text: It follows from this that the Court does have power to set aside a bankruptcy notice which can be characterised as an abuse of process; Amos v Brisbane TV Limited [2000] FCA 825 ; (2000) 100 FCR 82 at [21] .


case_text: If it is apparent to the Court that the purpose of a bankruptcy notice is to put pressure on a debtor to pay a debt, rather than to invoke the Court's insolvency jurisdiction, the issuing of the bankruptcy notice will be an abuse of process; Brunninghausen v Glavanics [1998] FCA 230 ; see also Re Sarina; Ex parte Wollondilly Shire Council (1980) 43 FLR 163 at 166.


case_title: Re Sarina; Ex parte Wollondilly Shire Council (1980) 43 FLR 163


case_text: However, it is not an abuse of process if a creditor genuinely intends to pursue the matter if there is default in complying with the notice and there is no evidence of collateral purpose or undue pressure; Slack v Bottoms English Solicitors [2002] FCA 1445 at [15] [21]. 45 In my view, it is to be inferred from the factual matrix set out above that S & E Hall's purpose in issuing the bankruptcy notice was to put pressure on Mrs Maxwell-Smith to pay the debt rather than to genuinely invoke the Court's bankruptcy jurisdiction. This inference arises from the following.


case_text: In those circumstances I am entitled to reject Mr Hall's evidence, even though he was not cross-examined on it; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 587-588. 52 Accordingly, I propose to set aside the bankruptcy notice as an abuse of process.


case_text: It is well established that the Court has a discretion to go behind a judgment debt to see whether there is in truth a debt due to the petitioning creditor; Corney v Brien [1951] HCA 31 ; (1951) 84 CLR 343 at 347. 54 However, here there was nothing put before me to enliven the exercise of the discretion to go behind the debt. Indeed, it is plain that there is no reason to go behind the judgment. 55 The judgment debt arose from the costs order of the High Court. Mrs Maxwell-Smith appeared, in person with her husband, to seek special leave. She was named as a party to the special leave application. That is sufficient to meet any suggestion that her failure to sign the building contract avoids liability for the costs order.


case_outcome: distinguished

case_title: Australian Competition & Consumer Commission v Amcor Printing Papers Group (2002) 169 ALR 344


case_outcome: applied

case_text: Repatriation Commission v Deledio (1998) 83 FCR 82 at 97, the Full Court identified a four step process for applying these provisions as follows: 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. 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. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could 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. 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. For the purposes of para 5(b) of the SoP the applicant identified two potential stressors which allegedly occurred during his operational service. The first was his handling of casualty figures. The Tribunal summarized the relevant evidence as follows: Mr Renton was a radio keyboard operator in Saigon. He handled transmissions between Australia and the task-force, and between units in the field and headquarters. He says he scrutinised casualty lists each time they came across his desk. During the course of his evidence at the hearing, he explained he was looking for the names of his brother and other relatives who were also serving in Vietnam. He was worried they might have been injured or killed. I note one of his brothers had been shot and wounded some years earlier. The applicant said he was only worried about the names of relatives appearing on the casualty lists. He said he became distressed each time he scrutinised the lists but was relieved when he did not come across names he knew. None of his relatives were ever referred to on the lists. He said he was otherwise unaffected by the experience. The second event (the "Saigon incident") occurred outside a bar in Saigon in 1970. The Tribunal summarized the evidence of the incident as follows: This incident was the focus of the evidence led at the hearing. Mr Renton claimed the incident unfolded one night between 24 June and 14 July 1970. (The applicant was charged with disciplinary offences on each of those dates. He said he remembered he had been charged with an offence on 24 June before the incident occurred, but the second charge was not preferred until 24 July after the events in question.) He said he was making his way through the streets of Saigon to his billet after curfew when he came upon a hotel. There were two American servicemen outside making a fuss. He approached them to find out what was happening. They told him they were members of a Navy SEAL team. They said one of their comrades was inside being beaten by local toughs. Mr Renton says he looked through the locked gates into the building and saw an American serviceman being struck with lengths of timber. Mr Renton says he resolved to help. He says he climbed the fence which surrounded the establishment. It was made of wrought iron and was crowned with sharp decorative stakes. He then somehow scaled the wall of the building to the second level. He smashed a window to gain access. The men downstairs who were administering the beating to the American serviceman heard the sound of breaking glass and threw the man out. The applicant climbed down to the ground level and scaled the fence. Mr Renton says the American serviceman slipped while he was scaling the fence and one of the stakes plunged into his thigh. While the applicant and the two American servicemen on the street (who had remained behind to bang on the front gates of the establishment) struggled to release their injured colleague from the fence, the applicant says he heard someone fire a single shot. He says he saw a muzzle-flash come from the corner of a building across the street. He says it was unclear whether the shot came from inside the building, or from the street at one end. He says there was no one else on the street at the time. He also says he recognised the distinctive sound of an AK-47 rifle which was known to be the weapon of choice for the enemy. All four men (including the injured man) ran off. A short while later, the applicant said the fleeing men came across an American military police patrol. There were two MPs in a vehicle. The applicant and the other three servicemen told the MPs what had occurred. After the injured serviceman was despatched to hospital in another military police vehicle, the applicant says he and the other two men climbed into the rear of the police vehicle and drove back to the site of the incident. The MPs did not call for any assistance. They looked around the site. The police found nothing untoward and drove the men back to the American billet without further delay. They did not arrest the men for being out after curfew. The applicant says he stayed at the American quarters that night. The injured serviceman returned from the hospital during the course of the night with some stitches to his leg. They all discussed what had occurred, although Mr Renton says they did not drink. He claims the Americans speculated about what they might have done if circumstances were different and they were armed. Mr Renton says he has no doubt there would have been a gunfight, and he would have been caught in the middle. The Americans returned to the United States the following day, and Mr Renton went back to his accommodation. He never heard from them again. At para 2 of its reasons the Tribunal observed that: The parties agree the applicant suffers from an alcohol dependence condition. I accept the medical evidence to that effect. The question is whether the condition is related to his war service. That determination must be made having regard to s 120 of the Act. The Full Federal Court in Repatriation Commission v Deledio ... said it was necessary to follow a four-step reasoning process in the application of s120 where a claim is made in respect of the periods of operational service. In considering the first step prescribed by Deledio , the Tribunal identified the applicant's first hypothesis as being that the alleged stressors had caused his alcoholic dependence. The Tribunal concluded that the "material taken as a whole points to the hypothesis for which the applicant contends". The second hypothesis was that his alcohol dependence resulted from his attempts to cope with his anxiety condition. The Tribunal accepted that the material also pointed to that hypothesis. In connection with the second step contemplated in Deledio , the Tribunal identified the SoP and then proceeded to the third step. With respect to the applicant's handling of the casualty lists, the Tribunal was not satisfied that the events as he described them satisfied the definition of a severe stressor in the SoP on the basis that "none of the names he feared seeing were ever included on the list". Additionally, the Tribunal concluded that: A person with the background and experience of the applicant even one with a relative who had been hurt in the past would not have regarded the experience of reading the lists as a severe stressor of a kind or magnitude of the other examples given in the definition. (Original emphasis.) The Tribunal then considered the events in Saigon. It was common ground that an incident such this would have been a severe stressor for the purposes of the SoP. The Tribunal noted that the SoP required that the severe stressor have occurred within two years before the clinical onset of alcohol dependence. The Tribunal considered that there was evidence suggesting that his alcohol dependence arose in 1970 following the alleged incidents. However there was also evidence which, in the Tribunal's view, pointed to an earlier onset. Nonetheless, for the purposes of the third step, the Tribunal accepted that on the applicant's evidence, the severe stressor arguably occurred within the prescribed time frame. The Tribunal then considered the applicant's hypothesis based upon his anxiety condition, accepting that there was evidence suggesting that the condition arose out of the same circumstances as caused the applicant's alcohol dependence. On that basis, the Tribunal accepted that the hypothesis was "capable of fitting the template of the SoP". The Tribunal proceeded to the fourth step prescribed in Deledio , considering whether it was satisfied beyond reasonable doubt that there was no sufficient ground for deciding that the applicant's alcohol dependency was war-caused. It concluded that the applicant's account of the Saigon incident was implausible. It did not accept that the incident had occurred. This left the hypothesis that his anxiety condition had been caused by his alcohol dependence. The Tribunal concluded that the onset of such dependence was prior to the Saigon incident. The anxiety condition had been allegedly caused by that incident. Thus the applicant could not have been suffering from it at the time of onset of his alcohol dependence. Counsel had submitted that the Tribunal should also consider whether the applicant's alcohol dependence had been aggravated by his experiences in Vietnam and his anxiety condition. The Tribunal found no evidence of such aggravation. Pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the "AAT Act"), a party may appeal from a decision of the Tribunal "on a question of law".


case_text: effect, the applicant submits that s 119(1)(h) should be construed as requiring the Tribunal to accept the applicant's claims simply because he has made them. That is not the correct approach to the section. See Fenner v Repatriation Commission (2005) 218 ALR 122 at [26]-[29]. There is nothing in this ground of appeal. Ground (b) - Section 120 The applicant submits that the Tribunal wrongly concluded that his handling of casualty lists did not constitute a severe stressor within the meaning of the SoP. The Tribunal considered that a person with the applicant's background and experience, "even one with a relative who had been hurt in the past would not have regarded the experience of reading casualty lists as a severe stressor of a kind or magnitude of the other examples given in the definition." (Original emphasis.) There is no requirement in the SoP that a veteran regard the relevant experience as being a severe stressor.


case_outcome: considered

case_text: applicant submits that in assessing the alleged stressors, the circumstances of the veteran should be taken into account including, in this case, that his brother had previously been wounded in Vietnam, and that both men and a cousin were then serving there. It is submitted that the Tribunal was also obliged to take into account the "applicant['s] unique circumstance of suffering from a diagnosed psychiatric condition of hysterical personality". In making these submissions the applicant relies upon the decision of Mansfield J in Stoddart v Repatriation Commission (2003) 74 ALD 366, especially at [50] as follows: In my judgment, the meaning of the word "threat" as used in the definition of "experiencing a severe stressor" does not require the construction or meaning contended for by the respondent and accepted by the tribunal. The adjectival clause "that involved actual or threat of death or serious injury ..." explains the nature of the event or events which must be experienced. It contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perceptions of events which, judged objectively, do not in fact fall within the adjectival clause. But it does not follow that the "threat" there referred to must involve events which judged objectively and with full information involve an actual threat of death or serious injury. That construction would appear to go beyond the purpose of SoPs. It would involve the Repatriation Medical Authority in the two SoPs being interpreted as saying (for example) that on medical-scientific evidence PTSD cannot be related to operational service where events actually experienced and which a person with the knowledge and in the circumstances of a particular claimant could reasonably lead to that person perceiving a threat of death or serious injury or to physical integrity, did not, judged objectively and with full knowledge of all the circumstances, in fact amount to such a threat. Such an interpretation would lead to excluding from the scope of the word "threat" a range of circumstances, some of which are referred to above, which commonsense indicates are matters not directly within medical-scientific evidence. That is, if a threat of serious injury or death is perceived by a claimant from actual events experienced in circumstances where, judged objectively and with the knowledge and in the circumstances of the claimant, it was reasonable to perceive the threat, I do not understand it to be a medical-scientific opinion that no reasonable hypothesis can be raised connecting the condition resulting from those events with them. The definition of "sound medical-scientific evidence" in s 5AB(2) also indicates that the Repatriation Medical Authority would not intend to impose a prescriptive exclusion of the kind which would result from the interpretation of the SoPs which the tribunal adopted. At [51], after reference to the relevant legislation, his Honour concluded: It is consistent with those provisions that the SoPs should be read as meaning that a claimant experiences "a severe stressor" if that person experiences, witnesses or is confronted with an event or events which that person perceived as a threat of death or serious injury or to physical integrity, and which that person's knowledge and in that person's experience, could reasonably be so perceived. I understand the enquiry to be as to an objective state of affairs, having regard to the veteran's knowledge and experience. The applicant's brother's previous injury may have caused the former to have a heightened awareness of the possible consequences of involvement in armed combat. The Tribunal took that matter into account when it used the words "even one with a relative who had been hurt in the past". Whether such heightened awareness constituted "knowledge" or "experience" for present purposes may be doubted. However increased susceptibility to psychological trauma as a result of hysterical personality or a brother's injury is not knowledge or experience. The respondent submits that the applicant's challenge to this aspect of the Tribunal's decision is really an attack upon a finding of fact, and therefore not properly a ground of appeal. There is substance in that submission. However I conclude that the Tribunal did not fully understand the definition of the words "experiencing a severe stressor" as applied to the applicant's handling of the casualty lists. Reading the casualty lists may have amounted to his experiencing, witnessing or being confronted by an event or events "that involved actual or threat of death or serious injury or a threat to the person's or other people's physical integrity which event or events might evoke intense fear, helplessness or horror". Having his attention regularly drawn to casualty lists in a theatre of war might well have involved the applicant in experiencing, witnessing or being confronted by events which caused death or serious injury, even if the actual events were not identified. Alternatively his reading of the lists may, itself, have been an event or events which involved actual death or serious injury. Exposure to the casualty lists might also constitute a threat of death or serious injury, particularly if one is present in the theatre and/or one's brother and cousin are there. I see no reason why repeated exposure to casualty lists might not evoke intense fear, helplessness or horror. The Tribunal disposed of this aspect of the case without regard to these matters. The evidence concerning the applicant's handling of casualty lists was not substantial. He did not claim to have been adversely affected by reading the casualty lists at the time. He seems rather to have been concerned to ensure that his brother and cousin were not on the lists. He felt no particular reaction (other than relief) upon discovering that neither was on each list. This evidence, perhaps in conjunction with medical evidence, might, at the fourth step, lead to the rejection of the applicant's claim. However that process should not be allowed to impinge upon step three. I consider that the Tribunal did not consider the relevant question in dealing with the applicant's handling of the casualty lists as a potential stressor.


case_text: Repatriation Commission v Constable (2006) 151 FCR 391 at [42]-[50] the Full Court held that an experience falling within any of these categories will be a severe stressor. In the present case, the Tribunal should have considered whether his handling of the casualty lists fell within either the first or third category. This is not quite the point raised by the applicant. However the thrust of his submission is that exposure to the casualty lists was capable of being a stressor, taking into account his peculiar circumstances. In my view, on the evidence, it was capable of being a stressor even without those circumstances. With respect to the Saigon incident, the applicant submits that in applying s 120 the Tribunal failed to take into account the provisions of s 119(1)(h). I have already dealt with this submission in connection with the first ground of appeal. It is not necessary that I say any more about it. I turn to the applicant's anxiety condition. Paragraph 5(a) of the SoP required that the applicant was suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence. Paragraph 5(c) required that he was suffering from such a disorder at the time of any clinical worsening of his alcohol dependence. The Tribunal concluded that the applicant "was already locked in a pattern of maladaptive alcohol use by the time he arrived in Vietnam", that is prior to his operational service and prior to the onset of his anxiety condition. It has been accepted that the applicant's anxiety condition was war-caused. Curiously, such acceptance seems to have been based on the Saigon incident, evidence of the occurrence of which was rejected by the Tribunal in considering his alcohol dependence.


case_text: There can, in my view, be no doubt that the decision, which is the subject of this purported appeal, was interlocutory in nature: Han v Minister for Immigration and Multicultural Affairs [2006] FCA 1426 at [10] and the cases therein cited. As a result the applicants require leave to appeal before any appeal could be prosecuted in this Court: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The notice of appeal filed on 11 July 2006, does not, in terms, constitute an application for leave. Any application for leave, now made, would be out of time: see O 52 r 5 of the Federal Court Rules . I note in this regard that the applicants are not legally represented and appear to have no appreciation of the interlocutory nature of the Federal Magistrates' decision or of the need to obtain leave to appeal from it. In other circumstances it might well have been appropriate to rule, that the notice of appeal should be treated, as incorporating an application for leave to appeal on the grounds therein contained. However, in this case nothing would, in my opinion, be gained by doing so. This is because the grounds being pursued by the applicants in this Court could not avail them at an appeal hearing. Moreover, leave would not be granted because the Federal Magistrates' decision is not attended with sufficient doubt to warrant it being reconsidered: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.


case_title: Han v Minister for Immigration and Multicultural Affairs [2006] FCA 1426


case_text: This is an application for leave to appeal from a judgment of Federal Magistrate Emmett on 21 May 2007 dismissing an application for review of a decision of the Migration Review Tribunal on the basis that, because of the time limit imposed, the Federal Magistrates Court did not have jurisdiction to deal with the matter. Subsequent to her Honour's decision, the law was clarified by a Full Court of this Court in the case of Minister for Immigration and Citizenship v SZKKC 96 ALD 25. The effect of the Full Court's decision is that the decision of the Federal Magistrate is now regarded as affected by legal error in relation to its consideration of s 477 of the Migration Act 1958 (Cth). 2 The question which then arises is whether, having regard to all the circumstances, it would be futile to remit the matter back to the Federal Magistrate or the Migration Review Tribunal for determination according to law. The jurisdictional obstacles which may render remittal futile arise from the facts, first, that it was not open to the Minister to grant the applicant's visa application because a condition precedent was that at the time of decision a nomination of the occupational training was not lodged, and secondly, that the application for review by the Migration Review Tribunal was out of time. The relevant provision is subclass 442.22 of schedule 2 of the Migration Regulations 1994 (Cth). 3 In view of the fact that these insuperable obstacles exist, in my view no useful purpose would be served by referring the matter back to the Federal Magistrate or the Migration Review Tribunal. Accordingly, in this case I am satisfied that the application for leave to appeal which has been lodged should be dismissed. The order of the court is that the application for leave to appeal is dismissed. 4 In all the circumstances, I am not disposed to make an order for costs against the applicant. The law has changed subsequent to the decision by the Federal Magistrate, and although that doesn't affect the outcome in this case, nevertheless it does not seem to be a matter where costs would be appropriate. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 7 November 2007 Counsel for the Respondent: Ms M Mafessanti Solicitor for the Respondent: Clayton Utz Date of Hearing: 5 November 2007 Date of Judgment: 5 November 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1695.html


case_text: It is well recognised that the Court may allow a ground of appeal even where that ground was not raised in the Court or Tribunal below but only where all of the relevant facts have been established beyond controversy or where the point is one of construction or a point of law: Water Board v Moustakas (1988) 77 ALR 193 at 196; Federal Commissioner of Taxation v Brambles Holdings Ltd (1991) 28 FCR 451; Cubillo v Commonwealth [2001] FCA 1213 ; (2001) 183 ALR 249. The first respondent conceded that the point could not have been met by any evidence had it been raised below but that the proposed ground was without merit and accordingly leave should be refused. It is necessary therefore to consider whether it is "expedient in the interests of justice" to allow the new ground to be argued and determined: H v Minister for Immigration & Multicultural Affairs [2000] FCA 1348 at [6] .


case_title: Federal Commissioner of Taxation v Brambles Holdings Ltd (1991) 28 FCR 451


case_title: H v Minister for Immigration & Multicultural Affairs [2000] FCA 1348


case_text: As to the merits, in my opinion, the proposed second ground cannot succeed. I accept the submissions of the first respondent which were to the following effect. The appellant was given the opportunity to appear before the Tribunal and put such information before it as she wished. In circumstances where the appellant failed to attend her hearing, she cannot complain if her application was rejected because amongst other reasons, she failed to take up the opportunity: S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283 at [26] . See also NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 346 at [10] - [12] , upheld on appeal in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5] ; SZDJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 214. There is no substance to her claim that the Tribunal failed to consider the information in the appellant's case. The Tribunal was simply not satisfied as to the applicable criteria: Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 ; SJSB v Minister for Immigration [2004] FCAFC 215 ; and SZBCS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1457.


case_text: In my opinion, the learned Federal Magistrate correctly held that it was for the applicant to establish her case before the Tribunal: Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 at 596. She failed to do so. The applicant was invited by the learned Federal Magistrate to provide details in support of that ground but she did not do so.