case_text: The determination of most of the issues in dispute can be achieved without recourse to witness credibility, but by reference to contemporary materials, objectively established facts and the apparent logic of events. This is helpful because I am mindful of what was said in the joint judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22 ; (2003) 214 CLR 118 at [31] for judges: '... to reason their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principle about witness credibility, but it tends to reduce the decisions, where those principles are seen as critical.' 120 There are one or two exceptions where, for one reason or another, such as lack of contemporary documents, recourse to credit is unavoidable in determining the issue in dispute; but even in the case of these exceptions, witness credibility is only one of the determinants. Nevertheless, if only for this reason, I have set out below my general impression of the lay witnesses called on behalf of each party. 121 I was impressed by Mr Sharp and I have no reason not to accept the evidence he gave by way of affidavit or in cross-examination. He was principally cross-examined on issues raised by the cross-claim, but he was also cross-examined on the issue of whether the disclosure of the proposed issue of 50,000 shares to Messrs Hutchings Broso and Riley was made in the context of their becoming employees of APIR and whether he was offered, at least on one occasion, but perhaps on three occasions, a folder of documents described as a 'due diligence folder'. He was forthright and direct in the responses he gave to questions put to him in cross-examination. There was no inconsistency in his recollection and his oral evidence was consistent with such contemporary documentation that was in evidence on the matters upon which he was cross-examined.


case_outcome: applied

case_text: In HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640 the facts are summarised in the headnote. Before purchasing a small shopping arcade, a prospective purchaser obtained advice from a valuer about the local retail tenancy market, but not the value of the arcade itself. The valuer advised that the construction of a new shopping centre nearby was not likely to affect existing retail tenancy levels adversely. Relying on that advice, in April 1997 the purchaser entered into a contract to purchase the arcade. By March 2000, after the opening of the new shopping centre, the arcade had suffered a collapse in gross rental income with a concomitant fall in value. The purchaser tried to sell the arcade without success. 184 While a central aspect of the decision was the notion that loss was not confined to the loss at the time of acting upon the advice and could include evidence of loss ascertainable later in time but referable to the conduct in issue, the High Court made it clear that if the plaintiff had learned the day after entering into the contract, or the day after completing the contract, that the defendant's conduct had been misleading as later found, it could have started proceedings then and there: at [25] and [28]. 185 The High Court, in HTW Valuers , distinguished Wardley Australia on the ground that the case was dealing with risk of loss only: at [29]. That reasoning arises from the fact that Wardley Australia was an indemnity case, so that there was no actual loss unless and until a loss was suffered under that indemnity, which was an event that might never occur. Unlike an asset worth less than was paid for it by reason of misleading or deceptive conduct, an indemnity cannot give rise to a loss until the party providing the indemnity is liable to pay. 188 There is no doubt that when DFE entered into the SSD on 23 January 2004 and paid the sum of $530,000 to APIR in subscribing for 200,000 shares in APIR, it suffered a loss measured by reference to the difference between what it paid in ignorance of the existence of the second heads of agreement and what it, as a rational investor, would have paid, if anything, in the knowledge of the existence of the second heads of agreement; or what was described in HTW Valuers , at [36], by reference to authority, as the 'real value' or 'fair value' or 'what would have been a fair price to be paid ... in the circumstances ... at the time of the purchase'. Similarly, for the 81,904 hares in APIR it purchased from existing shareholders for the sum of $217,045.60. 189 Although the Court is entitled to take into account events after the date of acquisition, when assessing damages by comparing the price and the real value of the asset at the date of the acquisition, in relation to s 82 of the TP Act (see Kizbeau Pty Ltd v W G & B Pty Ltd [1995] HCA 4 ; (1995) 184 CLR 281) , it must, as the High Court said in HTW Valuers at [40], '... distinguish among possible causes of the decline in value of what has been bought' and, in doing so, embrace the dichotomy of Dixon J in Potts v Miller (1940) 64 CLR 282 at 298. '...If the cause is inherent in the thing itself, then its existence should be taken into account in arriving at the real value of the shares or other things at the time of the purchase. If the cause be "dependent," "extrinsic," "supervening" or "accidental," then the additional loss is not the consequence of the inducement ...'


case_outcome: cited

case_text: Although the Court is entitled to take into account events after the date of acquisition, when assessing damages by comparing the price and the real value of the asset at the date of the acquisition, in relation to s 82 of the TP Act (see Kizbeau Pty Ltd v W G & B Pty Ltd [1995] HCA 4 ; (1995) 184 CLR 281) , it must, as the High Court said in HTW Valuers at [40], '... distinguish among possible causes of the decline in value of what has been bought' and, in doing so, embrace the dichotomy of Dixon J in Potts v Miller (1940) 64 CLR 282 at 298. '...If the cause is inherent in the thing itself, then its existence should be taken into account in arriving at the real value of the shares or other things at the time of the purchase. If the cause be "dependent," "extrinsic," "supervening" or "accidental," then the additional loss is not the consequence of the inducement ...'


case_text: The classic statement from Masters v Cameron [1954] HCA 72 ; (1954) 91 CLR 353 at 360 per Dixon CJ, McTiernan and Kitto JJ, is well known: 'Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three classes. It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract. In each of the first two cases there is a binding contract: in the first case a contract binding the parties at once to perform the agreed terms whether the contemplated formal document comes into existence or not, and to join (if they have so agreed) in settling and executing the formal document; and in the second case a contract binding the parties to join in bringing the formal contract into existence and then to carry it into execution. Of these two cases the first is the more common ...' 130 Such a view is said to have its origin in the High Court's decision in Sinclair Scott & Co Ltd v Naughton [1929] HCA 34 ; (1929) 43 CLR 310 at 317, and has found support in a number of more recent cases. There has been some academic debate on whether a fourth category of case may exist: see, for example, Elisabeth Peden, JW Carter and GJ Tolhurst, When Three Just Isn't Enough: the Fourth Category of the "Subject to Contract" Cases (2004) 20 JCL 156; DW McLauchlan, In Defence of the Fourth Category of Preliminary Agreements: Or Are There Only Two? (2005) 21 JCL 286. It is unnecessary to get involved in that debate. Whether the first heads of agreement falls within the first category of case in Masters v Cameron , or the so-called fourth category of case described in [129] above, it will, in my view, for the reasons outlined below, constitute a binding agreement. 133 Qualification under the first category of cases in Masters v Cameron is predicated on the terms of the instrument being sufficiently complete and certain to evince the requisite intention to contract. In the present case, there was no suggestion that there were terms which one would expect to find in the first heads of agreement which were not there, nor that some of the terms were uncertain. Qualification under the fourth category of cases, if it exists, is predicated on the terms of the instrument being essential to the bargain that the parties wish to conclude, in the expectation that at a later date a further contract will be arrived at containing additional terms that would facilitate and clarify the initial contract. Here, there was no suggestion that the first heads of agreement did not contain those terms essential to the bargain that APIR and the executive directors wished to conclude, nor could there be. 134 In the present case, the following circumstances, which are relevant by reference to the authorities referred to above, point to a conclusion that the parties, APIR on the one hand and the executive directors on the other, intended to be legally bound by the first and second heads of agreement: (1) The context in which these heads of agreement were negotiated and concluded. Both were negotiated and concluded in the context of efforts by APIR to obtain further capital to deal with its difficult financial position: see [115] above. The first heads of agreement was preceded by the engagement of Newport Capital to provide services directed to raising funds for APIR through various financing strategies (see [9] above) and the resolution offering the executive directors agreements for the on-going provision of their services in accordance with the first heads of agreement, specifically provided that the commencement date of the agreements will be that of the receipt of at least $1,000,000 from new investors. Indeed, further increments in the 'cost of employment' set out in the first heads of agreement were staged by reference to further capital injections; without those, the 'cost of employment' increments could not be met. The negotiations which took place with Mr Gibbon over executive remuneration (see [16] [24] above) were also in the context of Mr Gibbon's proposal to invest in APIR by a subscription for convertible notes and Mr Hutchings Broso's proposed amended resolution 'to the original board Resolution on Exec Remuneration' provided: 'The Commencement Date of the Agreements will be the signing of the Convertible Note Deed with new investors sourced by Newport Capital, probably Charles Gibbon and associates.' (see [19] and [20] above.) The second heads of agreement also comes into existence in the context of APIR raising capital, this time from DFE through Mr Sharp. Indeed, the nexus between the heads of agreement and the raising of capital is exemplified in Mr Hennock's first comment on Mr Hutchings Broso's amended proposal on executive remuneration set out in [19] above: 'I assume this timing for the commencement of the agreements is so that there is money in the bank to fund them [the executive directors' remuneration packages] rather than the capital raising being a specific milestone which you personally have to achieve.' (see [66] above.) Ultimately, the second heads of agreement was expressed to commence on 1 February 2004, a date by which, it was anticipated as at 14 January 2004, DFE's investment would be on board. (2) The terms of the resolution as recorded in the minutes of the meeting of directors of APIR held on 7 March 2003 (see [10] above), namely: '... RESOLVED by separately executed Resolution last date 4 May 2003 that the two Executive Directors each be offered an Agreement for the on-going provision of their services in accordance with the Heads of Agreement now attached. The commencement date of the Agreements will not be until the receipt of at least $1,000,000.00 from new investors.' (3) The terms of the letter under cover of which the separate resolution and attached heads of agreement were sent to each of the non-executive directors by Mr Riley (see [13] above), in particular the passage: '... The Executive Directors have stated that they are willing to commit to the terms of the suggested Agreement. They have also pointed out that due to the uncertainty surrounding future direction and control of the company, that without an Agreement, they would be put in a position of having no sensible choice but to accept other offers of employment.' (4) The fact that the separate resolution and attached heads of agreement were signed by all five directors of APIR: see [11] and [12] above. (5) The comprehensiveness of the terms of the heads of agreement as to what would be included in the agreement with each of the executive directors and the specificity and certainty with which those terms are detailed: see [12] above. (6) The fact that these documents comprising the first heads of agreement were maintained by Mr Riley in a folder of documents to show to potential investors, which was kept up to date by Mr Riley, at least until 'we got into serious negotiations with Charles Gibbon'. Mr Riley did not remember putting anything into the folder after about September October 2003. (7) The fact that the first heads of agreement was used as the starting point by Mr Hutchings Broso in drafting a 'proposed amendment' to it which was emailed to Mr Gibbon on 6 November 2003: see [18] and [19] above. (8) The communications which took place between Mr Hutchings Broso on the one hand and Mr Gibbon on the other following Mr Gibbon's 'suggested changes' to Mr Hutchings Broso's 'proposed amendment' (see [20] above), in particular, Mr Hutchings Broso's email to Mr Gibbon of 2 December 2003 (see [23] above) where he wrote: '... Given the current state of discussions and the continuing divergence of views, the EDs consider it in their best interests that the framework for these discussions and minimum outcomes be agreed before they step away from the package offered by the existing Board Resolution ...' and Mr Gibbon's letter of 11 December 2003 to Mr Hutchings Broso (see [24] above) in which he wrote: 'It appears that there is further need for discussion regarding the legacy issue. For this reason I suggested to Andy (and had reflected in the last version of the Deed) that the remuneration package agreed mid year by the Board be accepted as basis for going forward ...' (9) The fact that the 'proposed amendment' to the first heads of agreement was used as a starting point for having Mr Hennock review and provide his comments on 'ED Remuneration' (see [66] above) and the fact Mr Hutchings Broso's re-write of that draft, incorporating Mr Hennock's comments, became the document circulated to the other directors of APIR on 14 January 2004 under cover of the 'squared away' email (see [69] above) and the second heads of agreement (see [70] above). (10) The fact that the terms of the second heads of agreement were comprehensively embodied, without any change, in the executive employment agreements between APIR on the one hand, and Mr Hutchings Broso and Mr Riley on the other (see [76] above), it being common ground that these latter agreements were binding on the parties to them. 135 The respondents placed some reliance on the following circumstances for the contrary view, that is, that the first and second heads of agreement were not intended to be binding as between APIR and the executive directors: (1) The circumstance that the executive directors were prepared to modify the first heads of agreement in an attempt to accommodate Mr Gibbon in their negotiations with him. At best for the respondents, this circumstance is totally neutral in the objective determination of whether the first heads of agreement was intended to be binding on the parties to it; at worst for the respondents, it carries the inference that the terms of the anterior instrument were binding on the parties. (2) The circumstance that the first and second heads of agreement are expressed to be: 'Subject to shareholder approval ...', and that shareholder approval was not obtained in respect of the first heads of agreement even if the second heads of agreement, in particular the completion payment aspects of it, was discussed and 'sold' to shareholders at the annual general meeting of APIR held on 27 February 2004. But in the case of both heads of agreement, the words: 'Subject to shareholder approval ...' are followed by the words: '... where required ...' and no such approval was required by APIR's constitution. Moreover, even if shareholder approval to the first and second heads of agreement was required by subs 208(1) of the Corporations Act 2001 , failure to obtain it would not invalidate an otherwise binding contract: see subs 209(1). (3) The circumstance that Duesburys Chartered Accountants, Canberra ('the auditors') omitted from the 2003 financial statements any reference to the May 2003 resolution and the first heads of agreement could be seen as an indicia that the first heads of agreement was not binding. The response to this is, of necessity, more convoluted. (i) First, when conducting the audit, Duesburys must have been told that the deal with Mr Gibbon had already gone ahead to the point of actually executing the first round of convertible notes, because otherwise the error would not have been made in Note 17 to the effect that the convertible notes to the value of $350,000 had been issued and were not just the subject of a term sheet. DFE submitted that this grossly inaccurate information, which survived to the signing of the accounts on or about 28 November 2003 and was not corrected until at least 23 December 2003, casts significant doubt on the accuracy and currency of information that was being supplied to Duesburys. I agree. (ii) Second, for reasons which it is not necessary to delve into, I agree with DFE's submission that it is reasonable to conclude that Duesburys never had the means or the cause to consider whether the May 2003 resolution and the first heads of agreement should have been included in the 2003 financial statements for APIR because they did not know of their existence. At the very least, it would be unsafe to conclude that the 2003 financial statements had omitted from them any reference to the May 2003 resolution and the first heads of agreement because of any considered decision by the auditors that they did not need to be disclosed. (iii) Third, DFE further submitted that had Duesburys been told about the May 2003 resolution and the first heads of agreement at any time up to and including the changes made to Note 17 on or about 23 December 2003, and especially if told about the 12 December 2003 termination of the then current negotiations with Mr Gibbon, that would very likely have resulted in the 2003 financial statements being amended to take this into account. I agree. This is especially so given that Note 17 in its final form included reference to Mr Gibbon's term sheet, despite the negotiations with Mr Gibbon in relation to the convertible notes from the term sheet having been terminated on 12 December 2003. (iv) Fourth, Mr Carter suggested, as a matter of 'speculation', that the Note 17 reference to Mr Gibbon's investment may have been promoted by a concern that APIR was not a going concern, noting that APIR had 'a substantial deficit of current assets vis-à-vis current liabilities but that the auditors' file was silent as to why that note was included'. DFE submitted that Mr Carter's speculation is sound, but that he was in error in suggesting this reason was not revealed in the Duesburys working papers. The auditors' 'going concern' review has a handwritten reference to 'negative working capital' and 'heavy losses' being offset by positive net assets and the $350,000 investment from Mr Gibbon. This was the source of the erroneous Note 17, but still explains the underlying reason for the final Note 17. The final version included not just the mere term sheet (in relation to which negotiations had been terminated) but also other mere negotiations, apparently because of the offsetting impact on 'going concern' worries. DFE submitted that, plainly, even a prospect of incoming investment was considered very important to the auditors in light of the precarious financial circumstances of APIR. It submitted that it is difficult to see why a mere prospect of $500,000 coming in to allay 'going concern' worries would not be at least matched (if not outweighed) by a board resolution and signed heads of agreement providing for $700,000 to be payable in two years if not sooner. Thus the 'going concern' test for inclusion suggested by Mr Carter strongly favours DFE's case as to the first heads of agreement being required to be referred to in the 2003 financial statements even if it was not binding (contrary to DFE's primary position). This also supports the inference that Duesburys did not know about it. I agree with those submissions. (v) Finally, in relation to this circumstance, it is necessary to say something of the note found in the auditors' working papers headed 'Minutes Review' under the further heading '07 March 03': 'Nothing of audit concern' and that Duesburys were '... later advised that [the meeting] included consideration of exec contracts put on hold pending negs with potential investor'. DFE submitted that the first heads of agreement was never 'on hold', but nevertheless made the following three observations: (a) No evidence has been led from the respondents as to the precise terms of the communication to the auditors which gave rise to this note. Presumably no evidence could be led by the respondents (or the auditors) that would have assisted the respondents. As to whether the first heads of agreement was in fact 'on hold' is an issue of law and fact to be determined by the Court. The opinion of the person who may have said the first heads of agreement was 'on hold' is not decisive. The evidence in this regard is unsatisfactory in view of there being no precise evidence as to what was actually said. Even if the auditors were expressly told the first heads of agreement was 'on hold', the basis upon which this opinion was expressed is unknown. It all turns upon the intention of the parties. It is the intention of both parties viewed on an objective view of the facts. It is not based upon the subjective view of one of the parties (or an officer of one of the parties). (b) The critical issue is whether the parties intended for the first heads of agreement to be binding. It is the respondent's primary position that there was never any such intention. If the auditors were literally informed that the first heads of agreement was 'on hold', at the very least that would mean in all likelihood, contrary to the principal way in which the respondents put their case, there had been a previous intention for the first heads of agreement to be binding. Otherwise, there would be no need for the agreement to be noted as being 'on hold'. (c) An unexplained notation of the first heads of agreement being 'on hold' does not (especially if unexplained) impel the conclusion that the parties never intended for it to be binding; nor, viewed in isolation, does it negate the various reasons referred to above as compels a finding that the parties intended for the first heads of agreement to be binding. I agree with these observations. 136 Finally, even if not as importantly as the circumstances referred to in [125] and [126] above, in cross-examination Mr Hutchings Broso in response to a question that he '... understood from the outset when the heads of agreement were first entered into that that was a binding agreement. Correct?' answered: 'Correct'; and Mr Riley, in response to a question: 'That had the first heads of agreement not been rescinded as you assert, it would have been part of your obligation to reveal to Mr Sharp, as part of the current state of affairs of the company, the first heads of agreement?' answered: 'That's correct.' 137 During the course of cross-examination, Mr Riley gave evidence to the effect that while the first head of agreement was 'valid' (which, for present purposes, I take as synonymous with 'binding') at the time it was concluded (4 May 2003 at the latest), '... it had been tossed out in the course of the negotiation' with Mr Gibbon. A relevant passage from the transcript is instructive: 'Now, is it the fact that you say that it would have been removed, the May resolution and the heads of agreement, because why would it be removed? What was it that would cause it to be in the due diligence folder to begin with and then removed later on?---Because in early November the discussions with Charles Gibbon had been such that the and it had been agreed at a director's meeting, that the heads of agreement was no longer valid. All right, now, firstly, in the event of their being a resolution by the board that the heads of agreement were no longer valid, there would be a resolution to that effect in writing, wouldn't there? You would agree with that, wouldn't you?---I said it had been agreed by the board. There would be a written minute of the heads of agreement being invalid?---I think in the minutes it says that a new one would have to be drawn up. Yes, well, you were still in the course of negotiating with Mr Gibbon in that regard, weren't you?---Yes, we were. Right, see I would suggest to you that at the very least when you first prepared the due diligence folder, you were of the view that the heads of agreement was binding and valid, that's the reason it was in the folder, that's right, isn't it?---It was there for information for potential investors, yes. And to pick up the language that you've used just a little while ago that at the time you included the heads of agreement and the resolution in the due diligence folder, when you first put it together, you believed, to pick up your words, that it was valid at that time, that's right, isn't it?---That's what I said, yes. Yes and you don't want to change that evidence, do you, because what you told the court was true?---I said it was valid, yes. Yes and I would suggest to you that during the Gibbon negotiation there were proposals to change that valid agreement, wasn't there, the way of melding proposals that you understood had been put by Mr Gibbon?---There was a continuing discussing with Mr Gibbon about executive remuneration and agreements, yes. Yes and that no final agreement was reached between you and Mr Gibbon in respect of a new remuneration agreement, was it?---No, nothing had been finalised, no. And I would suggest to you that you're fully aware that at the time the Gibbon during the course of the Gibbon negotiation, I would suggest to you that your view was that until a new agreement was reached the existing heads of agreement continued to be valid, that's right, isn't it?---I think it had been tossed out in the course of the negotiation. And I would suggest to you that the reason that you had a folder in your possession in November that you say you offered to Mr Sharp which contained, at that time, the heads of agreement, was because at that time, during the course of the Gibbon's negotiation, you knew that those heads of agreement continued to be a relevant, valid document in respect of executive remuneration, didn't it?---No.'


case_outcome: distinguished

case_title: Murphy v Overton Investments Pty Ltd (2004) 216 CLR 3

case_text: Subsection 1041I(1) of the Corporations Act 2001 is predicated on a person having suffered loss or damage by the contravening conduct of another person. Subsection 1325(1) is predicated on a person who is a party to the proceeding having suffered, or likely to suffer, loss or damage because of the contravening conduct of another person. Putting aside that the latter provision also applies where a person is likely to suffer loss or damage, and that the nexus in the former provisions is 'by', and in the latter is, 'because of', there can be no dispute that the loss or damage of which both provisions speak must be an actual loss or damage; risk of loss is not sufficient: Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 at 525. The contravening conduct, while concerned with s 82 and s 87 of the TP Act, is equally applicable to s 1041I and s 1325 of the Corporations Act 2001 in this respect. However, it was submitted on behalf of the respondents that, in the present context, actual loss meant realised loss and that DFE would suffer no loss, if any, until its shares in APIR were sold; only then would it be possible to say whether or not there is an actual loss. Reliance for this was placed on Wardley Australia, Commonwealth v Cornwell [2007] HCA 16 ; (2007) 229 CLR 519 and Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388 , as well as other authorities. 186 The High Court also distinguished Murphy v Overton Investments because the contingency upon which the loss was said to arise could never eventuate unless the respondent exercised its discretion to increase the charges above the level disclosed to the applicants, with the undisclosed contingency not having any impact on value such that there was no loss: at [30]. That point of distinction is equally apposite to this case in which any other investor would rationally treat the shares in APIR being worth less with, than without, the binding agreement to issue 20% of its shares to the executive directors.


case_title: Potts v Miller (1940) 64 CLR 282


case_title: Re NRMA Ltd; Re NRMA Insurance Ltd (2000) 34 ACSR 2

case_text: The pleadings in the SFASC rely on a number of statutory regimes: the regimes under the Corporations Act 2001 ; the ASIC Act; the TP Act and the ACT Act. Section 51AF of the TP Act provides in subs (1) that Part V (Consumer Protection) does not apply to the supply, or possible supply, of services that are financial services and subs (2) provides, inter alia , in para (a) that, without limiting subs (1), s 52 does not apply to conduct engaged in or in relation to financial services. The term 'financial services' is defined in s 4 of the TP Act by reference to the meaning it has in Division 2 of Part 2 of the ASIC Act and includes 'dealing' in a 'financial product' (subs 12BAB(1)(b)), which is defined to include a security (subs 12BAA(7)). The term 'dealing' is defined to include applying for or acquiring, or issuing, a security (subs 12BAB(7)). It is clear from these provisions, in my view, that s 52 of the TP Act does not apply to conduct which consists of DFE's application for and APIR's issue of the 200,000 shares at $2.65 per share nor, in my view, to DFE's acquisition of the 81,904 shares in APIR at $2.65 per share from existing shareholders: see Cleary & Anor v Australian Co-operative Foods Ltd & Ors (Nos. 2 and 3) [1999] NSWSC 991 ; (1999) 32 ACSR 701 per Austin J at [1-107] [1-109]; Re NRMA Ltd; Re NRMA Insurance Ltd [2000] NSWSC 408 ; (2000) 34 ACSR 261 per Santow J at [125] [129].


case_text: Such a view is said to have its origin in the High Court's decision in Sinclair Scott & Co Ltd v Naughton [1929] HCA 34 ; (1929) 43 CLR 310 at 317, and has found support in a number of more recent cases. There has been some academic debate on whether a fourth category of case may exist: see, for example, Elisabeth Peden, JW Carter and GJ Tolhurst, When Three Just Isn't Enough: the Fourth Category of the "Subject to Contract" Cases (2004) 20 JCL 156; DW McLauchlan, In Defence of the Fourth Category of Preliminary Agreements: Or Are There Only Two? (2005) 21 JCL 286. It is unnecessary to get involved in that debate. Whether the first heads of agreement falls within the first category of case in Masters v Cameron , or the so-called fourth category of case described in [129] above, it will, in my view, for the reasons outlined below, constitute a binding agreement.


case_text: Whether the parties to an instrument intend to enter into a contract binding at law in the terms of the instrument is a question of fact to be determined objectively: Thompson v White & Ors [2006] NSWCA 350 ; (2007) NSW Conv R 56-171 at [99] , [100] per Tobias JA (Ipp and McColl JJA agreeing). In Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd [2000] WASCA 27 ; (2000) 22 WAR 101 , Ipp J (as he then was) referred to the qualities or characteristics of 'completeness' and 'certainty' of the terms of the instrument in question, saying at [23]: 'Where some terms are uncertain or where terms which one would expect to be in a contract of the kind entered into are missing, inferences may be drawn that the parties lacked the requisite intention to contract.' Earlier, his Honour had said at [23]: 'Thus, in dealing with the overall submission, it is not possible to divorce issues of completeness and uncertainty from the intention to contract.' 132 In undertaking the task of determining, objectively, what the parties' intention was, the Court may have regard to all the relevant circumstances. 'Intention' in this sense means intention to contract, not what the parties intended by the terms of the contract. The relevant circumstances may include prior negotiations or subsequent conduct, although direct expressions of intent made after the contract was arrived at, are not admissible: Bramble Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 at [26] per Heydon JA; Anaconda Nickel at [26]; Thompson v White at [100].


case_text: As to (1), DFE contends that the warranty was in all circumstances, something so essential to the decision to invest, pursuant to which the deed was being entered into, as to be an essential term of the contract: see Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632 (reversed on other grounds at (1938) 61 CLR 286) ; Ankar Pty Ltd v National Westminster Finance (Australia) Ltd [1987] HCA 15 ; (1987) 162 CLR 549 at 556.


case_text: Subsection 1041I(1) of the Corporations Act 2001 is predicated on a person having suffered loss or damage by the contravening conduct of another person. Subsection 1325(1) is predicated on a person who is a party to the proceeding having suffered, or likely to suffer, loss or damage because of the contravening conduct of another person. Putting aside that the latter provision also applies where a person is likely to suffer loss or damage, and that the nexus in the former provisions is 'by', and in the latter is, 'because of', there can be no dispute that the loss or damage of which both provisions speak must be an actual loss or damage; risk of loss is not sufficient: Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 at 525. The contravening conduct, while concerned with s 82 and s 87 of the TP Act, is equally applicable to s 1041I and s 1325 of the Corporations Act 2001 in this respect. However, it was submitted on behalf of the respondents that, in the present context, actual loss meant realised loss and that DFE would suffer no loss, if any, until its shares in APIR were sold; only then would it be possible to say whether or not there is an actual loss. Reliance for this was placed on Wardley Australia, Commonwealth v Cornwell [2007] HCA 16 ; (2007) 229 CLR 519 and Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388 , as well as other authorities. 185 The High Court, in HTW Valuers , distinguished Wardley Australia on the ground that the case was dealing with risk of loss only: at [29]. That reasoning arises from the fact that Wardley Australia was an indemnity case, so that there was no actual loss unless and until a loss was suffered under that indemnity, which was an event that might never occur. Unlike an asset worth less than was paid for it by reason of misleading or deceptive conduct, an indemnity cannot give rise to a loss until the party providing the indemnity is liable to pay.


case_text: Only (a), (c) and (d) are relied on in the SFASC, but (d), correctly in my view, was not pressed. There is no evidence of any conspiracy between the executive and non-executive directors as groups or among them individually. Moreover, each of (a) and (c) requires a level of knowledge, not necessarily the same level, but absent which a conclusion that a person is involved in conduct that is misleading or deceptive, or likely to mislead or deceive, cannot be sustained. A person will not have aided or abetted such conduct unless it is proven that the person had actual knowledge of the essential elements of such conduct and intentional participation in it: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 in the joint judgment at 666 669. The words 'party to a contravention' refer to a person who participates in, or assents to, the contravention. To be regarded as participating, a person must have actual knowledge of the essential elements constituting the contravention: Yorke v Lucas at 670. At the same page in the joint judgment, their Honours said: '...There can be no question that a person cannot be knowingly concerned in a contravention unless he has knowledge of the essential facts constituting the contravention. ... In our view ... [in order to be knowingly involved] ... a party to a contravention [needs] to be an intentional participant, the necessary intent being based upon knowledge of the essential elements of the contravention.' 173 While the extent of knowledge required to determine that a person is 'knowingly concerned' in a contravention has not been settled, my findings in [157] and [164] above impel the conclusion that none of the non-executive directors satisfied any of the relevant criteria to sustain a conclusion of being involved in the misleading or deceptive conduct of APIR and the executive directors referred to in [170] above.


case_outcome: considered

case_text: In its natural and ordinary meaning in factor 5(b) the word 'cannot' means that it is not possible to decrease the quantity. In other contexts the word 'cannot' has a natural and ordinary meaning of excluding the possibility of something occurring. So, in 29 Equities Ltd v Bank Leumi (UK) Ltd [1986] 1 WLR 1490 at 1496G-H Dillon LJ said that it was a simple question of fact to be decided in the light of common sense whether at the date on which a vendor purported to rescind a contract of sale a licence 'cannot be obtained'. And, in The Newbattle (1885) 10 PD 33 the English Court of Appeal held that a statutory provision referring to a ship which 'cannot be arrested' connoted that it was impossible to arrest the ship. In Rhymney Iron Company v Gelligaer District Council [1917] 1 KB 589 at 594, Viscount Reading CJ had to construe a provision empowering a local authority to service a notice on an owner or occupier where the person responsible for a nuisance 'cannot be found'. He said that having regard to the public health purpose in the legislation, the authority had only to be unable to ascertain, in its then state of knowledge, who was responsible for the nuisance.


case_text: In Australian Securities and Investment Commission v DB Management Pty Limited [2000] HCA 7 ; (2000) 199 CLR 321 at 338 [34] - [35] Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ said: '[34] In Project Blue Sky Inc v Australian Broadcasting Authority ((1998) [1998] HCA 28 ; 194 CLR 355 at 384, per McHugh, Gummow, Kirby and Hayne JJ), after pointing out that the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have, the majority 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 may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning." [35] It may be added that, if a party contends that a provision, by reason of such considerations, should not be given its literal meaning, then such a contention may lack force unless accompanied by some plausible formulation of an alternative legal meaning.'


case_text: The need for precision in the statement of the questions of law in a notice of appeal under s 44(1) of the AAT Act is explained by Branson J in Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at 301 [46] - [47] , with whom Jacobson and Bennett JJ agreed on this point (at 133 FCR at 131 [105]-[108]). She observed that in that case '... the questions stated in the notice of appeal have been impermissibly drawn in a way calculated to cause this Court to review the decision of the Tribunal rather than to answer stated questions of law'. Earlier, in Birdseye v Australian Securities and Investments Commission (2003) 78 ALD 321, Branson and Stone JJ considered how a question of law ought be stated in a notice of appeal, in the context of O 53 r 3(2). They said that: '... in the specification of the grounds relied upon in support of the order sought ... one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on appeal.' ((2003) 76 ALD at 325 [18]) 40 Here, the question of law asks the Court to review what the Tribunal did and then to determine whether it erred in failing to apply one or more elements which it was required to apply in factor 5(b). That is not a question of law within the meaning of the authorities on an appeal under s 44(1) of the AAT Act. The Commission argued that because the Tribunal did not make a finding about the last clause of factor 5(b), the way in which the question of law was framed complied with s 44(1). In my opinion it does not. Before one reaches that step, one would need to know what, properly construed, factor 5(b) involved and a subsequent question of law would be whether it was properly applied to the facts as found by the Tribunal. 41 I am of opinion that the question as raised in the notice of appeal does not raise a question of law within the meaning of the authorities. In any event, if I am wrong in my conclusion as to the question of law, I am of opinion that the Tribunal made no error of law in applying factor 5(b).


case_text: And, in Public Transport Commission (NSW) v J Murray-Moore (NSW) Pty Limited [1975] HCA 28 ; (1975) 132 CLR 336 at 350 Gibbs J said that where two meanings were open '...it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust'. Inconvenience or improbability of result may assist the Court in preferring, to the literal meaning, an alternative construction which is reasonably open and more closely conforms to the legislative intent: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ. They noted that both the common law and s 15AB of the Acts Interpretation Act 1901 (Cth) enabled the Court to have regard to reports of law reform bodies to ascertain the mischief to which a provision was directed. There is no relevant explanatory material which might throw light on the obscurity of factor 5(b).


case_text: In Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1996) 186 CLR 389 at 397 Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ said that all was required for a reviewable question of law to be raised was for a phrase to be identified as being used in a sense different from that which it has in ordinary speech. There is no doubt that the proper construction of factor 5(b) is capable of being a question of law. But that is not the question which the Commission raised in its amended notice of appeal. Of course, nor is a broad enquiry as to the construction or operation of factor 5(b) a question of law within the meaning of s 44(1) of the AAT Act, because it would involve the Court offering an advisory opinion which is beyond the judicial power of the Commonwealth: see In Re Judiciary and Navigation Acts [1921] HCA 20 ; (1921) 29 CLR 257; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at 528 [19] per Branson J, Spender and Nicholson JJ agreeing. 42 In Re Minister for Immigration and Multicultural and Indigenous Affairs Ex parte Durairajasingaham [2000] HCA 1 ; (2000) 74 ALJR 405 at 417 [67] , McHugh J said that an obligation to give reasons, such as is found in s 43(2B) of the AAT, Act does not oblige the Tribunal to give a subset of reasons why it accepted or rejected individual pieces of evidence. In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at [68] , McHugh, Gummow and Hayne JJ said that it was sufficient if the decision-maker sets out its findings '...on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.' In Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272 Brennan CJ, Toohey, McHugh and Gummow JJ said that a court should not scrutinize upon over zealous judicial review the adequacy of reasons for an administrative decision. They said that a court should beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. 43 Here, the Tribunal set out in its reasons factor 5(b). It addressed factor 5(b) in terms and said that, having considered its concerns about Mr Cotton's oral and written evidence and the other evidence, his drinking habit both during service and thereafter was such as to meet the conditions prescribed in factor 5(b) for hypertension. That is a finding of fact. The Tribunal reviewed all of the material going to Mr Cotton's drinking of alcohol. It found that over a course of years from 1946 to 1980, 'he drank on most days'. It described this in terms of it being his 'habit'. I am of opinion that the Tribunal was alive to its responsibility to make findings as to the matters required by factor 5(b) and that it did so in a way which reveals no error of law. 44 For these reasons I am of opinion that the appeal should be dismissed with costs. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares . Associate: Dated: 16 November 2006 Counsel for the Applicant: Ms K Eastman Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr M Vincent Solicitor for the Respondent: Thomson Playford Date of Hearing: 1 November 2006 Date of Judgment: 16 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1523.html


case_text: In Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1996) 186 CLR 389 at 397 Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ said that all was required for a reviewable question of law to be raised was for a phrase to be identified as being used in a sense different from that which it has in ordinary speech. There is no doubt that the proper construction of factor 5(b) is capable of being a question of law. But that is not the question which the Commission raised in its amended notice of appeal. Of course, nor is a broad enquiry as to the construction or operation of factor 5(b) a question of law within the meaning of s 44(1) of the AAT Act, because it would involve the Court offering an advisory opinion which is beyond the judicial power of the Commonwealth: see In Re Judiciary and Navigation Acts [1921] HCA 20 ; (1921) 29 CLR 257; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at 528 [19] per Branson J, Spender and Nicholson JJ agreeing. 38 Because factor 5(b) does not use words according to their common understanding, the question whether facts fully found fall within its provisions, properly construed, is a question of law: Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 7 per Mason J. In Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at 530 [29] Branson J said that a question which invited the Court to examine the evidence and other material before the Tribunal was not a question of law within the meaning of s 44(1) of the AAT Act but rather it was, at best, a mixed question of fact and law. She said that looked at critically, such a question was open to be understood as an invitation to the Court to conduct a rehearing with respect to important aspects of controversy that came before the Tribunal for determination. This was not open to be accepted under s 44(1) of the AAT Act. And in HBF Health Funds Inc v Minister for Health and Ageing [2006] FCAFC 34 ; (2006) 149 FCR 291 at 293 [6] Spender, Branson and Siopis JJ said that it was not possible to extend the subject matter of the appeal under s 44(1) of the AAT Act beyond the specified questions of law by itemising, under the heading 'Grounds' in the notice of appeal, a series of alleged errors in the reasons for the decision of the Tribunal, some being errors of law, some being errors of fact, and some being errors of mixed law and fact.


case_outcome: followed

case_text: Because factor 5(b) does not use words according to their common understanding, the question whether facts fully found fall within its provisions, properly construed, is a question of law: Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 7 per Mason J. In Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at 530 [29] Branson J said that a question which invited the Court to examine the evidence and other material before the Tribunal was not a question of law within the meaning of s 44(1) of the AAT Act but rather it was, at best, a mixed question of fact and law. She said that looked at critically, such a question was open to be understood as an invitation to the Court to conduct a rehearing with respect to important aspects of controversy that came before the Tribunal for determination. This was not open to be accepted under s 44(1) of the AAT Act. And in HBF Health Funds Inc v Minister for Health and Ageing [2006] FCAFC 34 ; (2006) 149 FCR 291 at 293 [6] Spender, Branson and Siopis JJ said that it was not possible to extend the subject matter of the appeal under s 44(1) of the AAT Act beyond the specified questions of law by itemising, under the heading 'Grounds' in the notice of appeal, a series of alleged errors in the reasons for the decision of the Tribunal, some being errors of law, some being errors of fact, and some being errors of mixed law and fact.


case_text: In Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1996) 186 CLR 389 at 397 Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ said that all was required for a reviewable question of law to be raised was for a phrase to be identified as being used in a sense different from that which it has in ordinary speech. There is no doubt that the proper construction of factor 5(b) is capable of being a question of law. But that is not the question which the Commission raised in its amended notice of appeal. Of course, nor is a broad enquiry as to the construction or operation of factor 5(b) a question of law within the meaning of s 44(1) of the AAT Act, because it would involve the Court offering an advisory opinion which is beyond the judicial power of the Commonwealth: see In Re Judiciary and Navigation Acts [1921] HCA 20 ; (1921) 29 CLR 257; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at 528 [19] per Branson J, Spender and Nicholson JJ agreeing.


case_text: In Australian Securities and Investment Commission v DB Management Pty Limited [2000] HCA 7 ; (2000) 199 CLR 321 at 338 [34] - [35] Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ said: '[34] In Project Blue Sky Inc v Australian Broadcasting Authority ((1998) [1998] HCA 28 ; 194 CLR 355 at 384, per McHugh, Gummow, Kirby and Hayne JJ), after pointing out that the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have, the majority 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 may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning." [35] It may be added that, if a party contends that a provision, by reason of such considerations, should not be given its literal meaning, then such a contention may lack force unless accompanied by some plausible formulation of an alternative legal meaning.' 15 Earlier, in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 381 [69] McHugh, Gummow, Kirby and Hayne JJ said that the primary object of statutory construction was to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute. They approved what Dixon CJ had said in Commissioner for Railways (NSW) v Agalianos [1955] HCA 27 ; (1955) 92 CLR 390 at 397, namely that: '... the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.'


case_text: And, in Public Transport Commission (NSW) v J Murray-Moore (NSW) Pty Limited [1975] HCA 28 ; (1975) 132 CLR 336 at 350 Gibbs J said that where two meanings were open '...it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust'. Inconvenience or improbability of result may assist the Court in preferring, to the literal meaning, an alternative construction which is reasonably open and more closely conforms to the legislative intent: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ. They noted that both the common law and s 15AB of the Acts Interpretation Act 1901 (Cth) enabled the Court to have regard to reports of law reform bodies to ascertain the mischief to which a provision was directed. There is no relevant explanatory material which might throw light on the obscurity of factor 5(b). 24 A strict literal reading of factor 5(b) suggests that even where a veteran is suffering from a form of addiction to alcohol but could, if he or she chose, reduce the intake (e.g. by being admitted to an institution at which alcohol dependency could be treated and at which no alcohol was permitted) but did not do so would not be capable of satisfying the conditions. Any possibility of a person consuming less than the average 300 grams of alcohol per week would negate a claim which had been medically established by the actual consumption of that quantity. In effect, a person who was caused by his or her service to the nation to embark on a drinking habit of consuming more than 300 grams of alcohol per week, and who became sick with hypertension, would not be able to receive a benefit because it was logically possible for him or her not to have drunk as much. Such a construction is, in the absence of express words, one which produces consequences which are irrational and unjust ( Public Transport Commission (NSW) v J Murray-Moore (NSW) Pty Limited [1975] HCA 28 ; (1975) 132 CLR 336 at 350 per Gibbs J.


case_outcome: referred to

case_text: Mr Rice referred ([2005] AATA 474 at [24]) to an earlier decision of the Tribunal in Re Collier and Repatriation Commission [2004] AATA 111 at [12] which had said that factor 5(b) was confusing and 'just does not make sense'. And, in Re Campbell and Repatriation Commission [2006] AATA 455 at [71] a senior member said that the language was unclear and devoid of meaning. He disagreed with the decision in Re Schubinski and Repatriation Commission [2005] AATA 1273 at [100] , where a differently constituted Tribunal had said of the current factor 5(b) that the relevant words were capable of a sensible construction and that they: '... connote an element of an inability on the part of the person concerned to decrease his or her average consumption below the average stated. In other words, we hold subclause (b) to mean that an applicant must establish that for a continuous period of at least six months immediately before the clinical onset of hypertension the applicant was not only consuming an average of 300 grams per week of alcohol but was unable to consume less than that average during that period. In other words ... the relevant words in effect refer to a compulsion to drink, not merely to the fact of drinking.'


case_text: Mr Rice referred ([2005] AATA 474 at [24]) to an earlier decision of the Tribunal in Re Collier and Repatriation Commission [2004] AATA 111 at [12] which had said that factor 5(b) was confusing and 'just does not make sense'. And, in Re Campbell and Repatriation Commission [2006] AATA 455 at [71] a senior member said that the language was unclear and devoid of meaning. He disagreed with the decision in Re Schubinski and Repatriation Commission [2005] AATA 1273 at [100] , where a differently constituted Tribunal had said of the current factor 5(b) that the relevant words were capable of a sensible construction and that they: '... connote an element of an inability on the part of the person concerned to decrease his or her average consumption below the average stated. In other words, we hold subclause (b) to mean that an applicant must establish that for a continuous period of at least six months immediately before the clinical onset of hypertension the applicant was not only consuming an average of 300 grams per week of alcohol but was unable to consume less than that average during that period. In other words ... the relevant words in effect refer to a compulsion to drink, not merely to the fact of drinking.' 12 Before me the Commission asserted that it did not need to propound a final view as to the proper construction of factor 5(b) because, whatever it means, each part of it was not considered or applied by the Tribunal in the present decision. I was informed from the Bar table that the words of factor 5(b) had not been the subject of any clarification despite the difficulty of construction identified two years ago in Re Collier and Repatriation Commission [2004] AATA 111. 13 In light of the substantive impact which statements of principles have in the assessment of claims made by service and former service personnel, it is unfortunate that this provision, which has been rightly criticised as badly worded, has been left unamended. It is obviously a very difficult piece of wording to construe.


case_text: A member of the Tribunal (Mr E Rice) said in Re Jensen and Repatriation Commission [2005] AATA 474 at [24] that it was impossible to make any sense of the final clause in an analogous form (which referred to 200 rather than 300 grams per week and did not include the criterion of a period of six months). He continued that the factor: '... seems to require a consumption of an average of at least 200 grams of alcohol per week at the time of the clinical onset of hypertension, and an inability to decrease that consumption to less than an average of 200 grams per week, also at the time of the clinical onset of hypertension.' 11 Mr Rice referred ([2005] AATA 474 at [24]) to an earlier decision of the Tribunal in Re Collier and Repatriation Commission [2004] AATA 111 at [12] which had said that factor 5(b) was confusing and 'just does not make sense'. And, in Re Campbell and Repatriation Commission [2006] AATA 455 at [71] a senior member said that the language was unclear and devoid of meaning. He disagreed with the decision in Re Schubinski and Repatriation Commission [2005] AATA 1273 at [100] , where a differently constituted Tribunal had said of the current factor 5(b) that the relevant words were capable of a sensible construction and that they: '... connote an element of an inability on the part of the person concerned to decrease his or her average consumption below the average stated. In other words, we hold subclause (b) to mean that an applicant must establish that for a continuous period of at least six months immediately before the clinical onset of hypertension the applicant was not only consuming an average of 300 grams per week of alcohol but was unable to consume less than that average during that period. In other words ... the relevant words in effect refer to a compulsion to drink, not merely to the fact of drinking.'


case_text: In Repatriation Commission v Gosewinckel (1999) 59 ALD 690 at 704 [64] Weinberg J pointed out in a case under s 120A that where a statement of principles requires the presence of a number of distinct symptoms, unless each of those symptoms is present, the case will not fit within the requirements of legislation. However, the relevant operation of s 120B and its interaction with s 196B(3) is not distinguishable for present purposes (although the degree of satisfaction which the decision-maker must have is, of course, distinct) (cf: Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 222 CLR 115 at 120 [11] , 125-126 [23]-[28]. 33 In Repatriation Commission v Gosewinckel (1999) 59 ALD 690 at 704-705 [67] Weinberg J noted that the provisions in Pt XIA of the Act '... were introduced in order to take the determination of "purely medical ... issues" out of the hands of bodies such as the tribunal: Explanatory Memorandum to Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 at p 3'. The construction posited by the Commission in this case of factor 5(b) does not raise a 'purely medical issue'. Factor 5(b) works as a 'purely medical issue' if one reads it as setting out the objective fact that 300 or more grams of alcohol, and nothing less, on average per week are consumed for a continuous period for at least six months before the clinical onset of hypertension. That is an objective fact that can be ascertained. The concluding clause in the factor emphasizes that it will not be satisfied if less than 300 grams per week are used in the calculation. That construction makes sense of the provision where a Tribunal might be inclined to think that near enough to 300 grams per week as average amount over the continuous period was good enough.


case_text: The task of the Tribunal, therefore, was to determine to its reasonable satisfaction that factor 5(b) was made out. The effect of s 120B(3)(b) is that once the Tribunal is reasonably satisfied that factor 5(b) exists, it can uphold the contention that the disease is connected with the service. In Repatriation Commission v Hill (2002) 69 ALD 581 at 596 [55] Black CJ, Drummond and Kenny JJ said that an hypothesis connecting a disease with war service will only be reasonable if the material that raises it includes all of the essential elements prescribed by the relevant statement of principles. 31 Thus, in a case such as the present, the Commission argues that every element in factor 5(b) had to be found by the Commission separately. Here, s 120(4) requires the decision-maker to decide the matter according to its reasonable satisfaction. In doing so, it is important to note that s 120(6) provides that no party (whether applicant or Commission) has an onus of proving any matter that is or might be relevant to the determination of a claim or application. The Tribunal not only found in terms that all of the conditions in factor 5(b) in Mr Cotton's case were met to its satisfaction, but it also said that Mr Cotton's conduct while in the RAAF was 'the causal influence that led him to making a decision to start drinking (and indeed smoking) and to continue to do so'.


case_title: Rhymney Iron Company v Gelligaer District Council [1917] 1 KB 589


case_text: In Repatriation Commission v Gosewinckel (1999) 59 ALD 690 at 704 [64] Weinberg J pointed out in a case under s 120A that where a statement of principles requires the presence of a number of distinct symptoms, unless each of those symptoms is present, the case will not fit within the requirements of legislation. However, the relevant operation of s 120B and its interaction with s 196B(3) is not distinguishable for present purposes (although the degree of satisfaction which the decision-maker must have is, of course, distinct) (cf: Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 222 CLR 115 at 120 [11] , 125-126 [23]-[28]. 34 I am of opinion that when the Tribunal referred to his drinking constituting a habit and being addictive it was referring to the submission made by counsel for Mr Cotton (at [2006] AATA 648 at [27] ). That submission had relied on the decision of the Full Court in Repatriation Commission v Tuite (1993) 39 FCR 540 at 541, 545 (and see too Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 222 CLR 115 at 125 [22] - [25] ) to suggest that his service was a cause in making alcohol part of the fabric of Mr Cotton's social life and that the setting in which he found himself helped to constitute his drinking into a habit. There was no requirement for Mr Cotton to cease drinking. While neither party has an onus (s 120(6)) the Tribunal had to deal with the material before it with the assistance which the parties offered it in deciding the question. It had the benefit of and made careful factual findings about the evidence. When referring to Repatriation Commission v Tuite (1993) 39 FCR 540, the Tribunal quoted from what Davies J (at 541) and Burchett and Einfeld JJ had said (at 545) that the social pressures and incidences of camp life were plainly capable of having a causal influence upon a decision to take up smoking and upon its continuance. 35 The Commission argued that I should make factual findings pursuant to s 44(7) of the AAT Act as to Mr Cotton's ability to decrease his alcohol consumption to less than an average of 300 grams per week. Having regard to the fact that the Tribunal made credibility based findings which depended upon its assessment of, among other things, Mr Cotton and its acceptance and rejection of parts of his evidence, it would not be appropriate for me to embark upon such an enquiry even were I minded to accept the Commission's construction of factor 5(b) (see too Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 222 CLR 115 at 126 [28] ). 36 Next, the Commission initially sought an order that, were the Tribunal's decision to be set aside, the decision of the Veterans Review Board which the Tribunal reviewed, be restored. I indicated during the course of argument that the effect of setting aside the Tribunal's decision would be to leave as the then operative decision whatever was the last administrative act preceding the Tribunal's decision. The Commission withdrew the application for an order dealing with this matter.


case_title: The Newbattle (1885) 10 PD 33


case_text: Counsel for the respective parties drew attention to authorities of this Court concerning the relevant operation of the Act. First as to s 298K(1) ( supra ), attention was drawn by counsel for Mr Lever to the reasons for joint judgment of five members of the High Court in Patrick Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia (No. 3) [1998] HCA 30 ; (1998) 195 CLR 1 (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ), where at [4], the following appears in relation to the operation of aspects of that subsection already extracted above in these reasons: '... Paragraph (a) covers termination of employment; par (b) covers injury of any compensable kind; par (c) is a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question. Proof of the reason for engaging in the prescribed conduct is the subject of s 298V....' It was submitted on behalf of Mr Lever that it was within that legal framework that his case had been brought, and further that '[i]n the light of the [foregoing judicial] observations as to the onus applicable in proceedings under Part XA of the Act, it is envisaged that significant submissions will be required in reply to meet the evidentiary case presented by [ANSTO] in seeking to discharge its onus in the matter'. 30 As I have foreshadowed, the issues presently arising for judgment are confined to liability, the further case of Mr Lever as to compensation and penalty having been stood over pending the outcome of the case on liability. Mr Lever emphasised that his complaint related to the absence of his reclassification to a higher employment grade within the ranks of ANSTO, and not merely to incremental increases in salary within a grade, and that it was within that legal framework of what his counsel described, citing Patrick Stevedores as quoted above, as the 'broad additional category that covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question' that his present proceeding was said to have been brought. Emphasis was further laid by Mr Lever upon the statutory expressions of ' injure ' and ' prejudice ' appearing in pars (b) and (c) of s 298K(1), and to enunciation of principles appearing in the authorities to which I have already referred, and in relation to which the Courts were said to have given 'a broad and wide ranging operation', and in particular by the High Court in Patrick Stevedores . 31 It was next submitted by Mr Lever that the veracity of his testimony was 'unshaken', his recollection of events was not materially challenged by contemporaneous documentation, and moreover that the testimonies of his various witnesses were 'unchallenged by cross-examination going to the substance of their factual assertions'. On the other hand the testimony of Dr Smith, the Executive Director of ANSTO, was said by Mr Lever to have been '... ultimately unhelpful [as to what was] undertaken by [ANSTO] during his tenure', and 'cavalier', and 'of no or minimal assistance to the Court'. The affidavit testimony of the industrial relations advisor to ANSTO, Mr Davies, was described by Mr Lever as largely 'formulaic', and that to the extent of 'any inconsistency' with Mr Lever's testimony, the latter should be 'with little hesitation ... preferred'. 32 Of more significance to the resolution of the issues arising was said by Mr Lever to be the evidence of Dr Doherty, described by counsel for Mr Lever as 'the de facto supervisor and director responsible for [Mr Lever's] active employment with [ANSTO]'. It was submitted by Mr Lever that the following five emails reflected adversely upon ANSTO's case concerning Dr Doherty's motivation: (i) the first email sent on 12 November 2002, in reference to Mr Lever's work as a union delegate on the enterprise bargaining negotiations team, which contained the assertion that '... [t]he history of [Enterprise Bargaining] processes almost everywhere is that they usually contain a confrontational element, which does not endear the union reps to management, so taking part has the potential to be career limiting, without any conscious design on the part of management to make it so'; (ii) the second email sent on 12 December 2002, by way of 'begging' Mr Lever 'for [his] own sake' not to pursue his industrial entitlement to a peer review; (iii) the third email sent on 5 May 2003, to the effect that Mr Lever needed to get his classification dispute with ANSTO 'out of the way quickly for [his] sake'; (iv) the fourth email sent on 17 July 2003, stating that 'Ron, I heard that you had decided not to proceed to the final IRC process. Is this true? I hope so. I would not like to see you destroy your career prospects here, unless you're planning to leave anyway. You still have goodwill amongst your ANSTO clients'; (v) the fifth email sent on 18 July 2003 wherein Dr Doherty asserted that 'I am sorry to hear it [that Mr Lever was still trying to resolve his classification dispute] because I think it's inevitable that it will affect your career here, but maybe you are not intending to stay in any case. I'll let it rest'. 60 Mr Lever contended in any event that '[m]uch of the factual background in support of these alleged breaches is uncontested', being breaches which 'relate essentially to Mr Lever's request for paid overtime, which request was denied by [ANSTO]', and further that '[t]he request and denial are not disputed by [ANSTO]'. Mr Lever further contended that '[t]his request and denial clearly amounts to injury to [Mr Lever] in his employment relations with [ANSTO] as defined by the High Court in Patrick Stevedores [195 CLR 1]', though the submission was not amplified with specificity or exemplification by reference to the dicta cited earlier in these reasons from Patrick Stevedores concerning 'adverse affection of, or deterioration in, the advantages enjoyed by the employee ...' . The Court was referred thereafter to the evidence of Dr Hammerton, a principal research scientist in ANSTO's Institute for Environmental Research, to the effect that throughout the years 2002, 2003 and 2004, Mr Lever 'was regularly engaged in his union activities'; the Court was referred in particular to pars 5, 6 and 7 of her affidavit evidence. 61 I was next referred to the affidavit evidence of Mr Bloom, (who was employed by ANSTO as a Facilitative Technologist Band 6, and who was also a member of ANSTO's Peak Council as a representative of the Australian Manufacturing Workers' Union). He was said to have provided affidavit evidence on behalf of Mr Lever to the effect that Mr Lever 'had a major influence from 2002 to 2004 in various forums as a CPSU delegate in addressing ANSTO's staff/management issues' (I was referred in particular to paragraph 4 of Mr Bloom's said affidavit of 9 November 2006). Mr Bloom testified to the effect that Mr Lever was a key union negotiator in the pay scale dispute previously brought before the Australian Industrial Relations Commission, and that Mr Bloom had participated, along with Mr Lever, in a large number of classification disputes at reference panels as union advocates. Mr Bloom further testified as to a conversation with Dr Smith, the then Executive Director of ANSTO, at which Mr Lever was present, and said to have occurred in about June or July 2004, being a conversation relating to '... a number of outstanding unresolved industrial issues, including the amount of time required to negotiate the forthcoming Enterprise Agreement and other union dealings with management'. Mr Bloom's unchallenged testimony was that Dr Smith then said as follows: 'I would allow reasonable time for time spent on union activities. I would not put a percentage of time spent.' 'I understand the nature of the work and at any one time the amount of work required to be done is relative to the nature and number of industrial disputes.' 62 It was submitted by Mr Lever accordingly that such evidence as to ANSTO's acceptance of Mr Lever's role as an active union delegate, and later as site president for the CPSU, was 'consistent with any reasonable reading of [Mr Lever's] duties for [ANSTO]', albeit in an earlier period during 'the latter half of 2002 and the first half of 2003 as being devoted in part to his union activities and in part to his substantive role'. It was further submitted that so much was also consistent with the evidence of Mr Cullen (as appearing at transcript page 551) as follows: 'His Honour: Was this doing union work in hours during employment hours or externally to employment hours? --- Well, I suppose that was part of the question. It's [ sic ] circumstances which suggested to me it was during hours. Mr Shoebridge: And it was acknowledged within ANSTO that union delegates were allowed to do union work in work hours. That's right? --- That's correct. I would take the opportunity to add that on the same page of the transcript the following appears: His Honour: Was there any particular view taken or practice adopted by ANSTO as to employees doing union work during working hours other than perhaps on urgent matters or matters of an exceptional nature? --- My understanding was that it was recognised that they could do union work during official hours up to approximately 10 per cent of the time.' It was further submitted by Mr Lever in that context that '... it was as much in [ANSTO's] interest as that of the employees' unions, to effectively and efficiently resolve industrial disputes involving both individual employees and the enterprise bargaining agreements'; so much would be doubtless accepted by ANSTO, and I do not understand any submission having been advanced by ANSTO to the contrary, though the relevance of the observation to the issues might be debateable, for what that might ultimately matter. 63 It was said by Mr Lever to be 'in the light of this history' (as I have sought to record in these reasons in detail) 'that [Mr Lever]approached Mr Cullen [formerly, I would record, the General Manager, Corporate Services, ANSTO] with a request as to [payment of] overtime; I was referred in that regard to Mr Lever's evidence at paragraph 55 of his affidavit of 17 November 2006, where he deposed to his conversation with Mr Cullen in about April 2003, and his request thereby made for approval to be paid for overtime by reason of what counsel for Mr Lever described as Mr Lever's 'difficulty in finishing the directory structure and code required of him in his work for ANSTO'. Mr Lever's account of Mr Cullen's response included the following: [Mr Cullen]: I am not sure if I can approve overtime while you are doing union work; why don't you drop it? [The Applicant]: What the union work? That won't solve any problems, someone still has to do it. I do not like the idea of leaving these matters unresolved. I think I should at least follow it through to completion of the matters I have at hand. I have spent over 6 months on [this] and you agreed that I was the one to control changes to the document. We are close to agreement [for] the first time since 1998 and you want me to drop it now? [Mr Cullen]: No, that's OK, I will have a talk to Ian [Crakanthorp] and get him to let you know.' I was further referred in the foregoing context to Mr Lever's affidavit of 1 June 2006, where in paragraph 61, he recorded the following conversation between himself and Mr Crakanthorp: 'Mr Crakanthorp: Mr Cullen's asked me to inform you that he cannot approve you working paid overtime. [The Applicant]: I'm very disappointed. Does it have anything to do with my union activities? Mr Crakanthorp: Yes, I think so.' 64 Mr Lever pointed thereafter to Mr Crakanthorp's testimony (given under cross-examination at the hearing on 8 December 2006 and appearing on transcript page 596) concerning his conversation with Mr Cullen which occurred in about early to mid 2003, on the subject of Mr Lever working overtime, and where Mr Crakanthorp was said to have admitted that at the time he had thought that Mr Lever was devoting 'approximately 80% of his working day to union related work', though where Mr Crakanthorp went on to say that such assessment of 80% was arrived at by '[j]ust pluck[ing] a number out of the sky really'. Nevertheless Mr Crakanthorp adhered to that estimate of 80% under cross-examination. Moreover Mr Crakanthorp agreed that he was 'sitting fairly close to [Mr Lever]', and '... having day to day conversations with him'. Mr Crakanthorp acknowledged in that context that Mr Lever 'was the only one who could run his programming' in relation to 'directory structures' in order to be able to 'respond to requests to adapt and change [such structures]' (transcript p 601). Mr Crakanthorp was said to have admitted that the IT directory project, for which Mr Lever was primarily responsible, had fallen behind schedule. It was submitted by Mr Lever that it was in those circumstances, albeit 'over a period of about 12 months' (as acknowledged by Mr Crakanthorp during cross-examination) that Mr Lever had requested payment of overtime to work after hours and complete his work. 175 In relation to those circumstances, counsel for Mr Lever contended that '[i]t is hardly torturing ... the English language to suggest that this amounts to injury for the purposes of the Act' (emphasis added). However no authority was cited in support of that proposition and I have encountered difficulty in rationalising how that purported statutory description of conduct on ANSTO's part is accommodated by authority, notwithstanding the width of the statutory notion of ' injury ' as exemplified for instance by the High Court in Patrick Stevedores , and more recently by Tracey J in Qantas ( ante ). 176 Those alleged breaches on ANSTO's part were said to be constituted by '... breaching [Mr Lever's] right to privacy in relation to the use of emails in the ANSTO workplace', being conduct of ANSTO described by Mr Lever as obtaining unlawful access to his emails. However Mr Lever did not identify any basis that would conceivably establish his asserted right to the privacy of the emails sent to him at ANSTO's workplace. This controversy apparently arose in October 2004 in the course of an investigation by Messrs Cullen and Davies into an alleged security breach by Mr Lever and another ANSTO employee, Person X (so-called). At the request of Messrs Cullen and Davies, Mr Crakanthorp copied onto a compact disc the email folder on a computer owned by ANSTO and allocated to Mr Lever for his use at work. Mr Crakanthorp provided the compact disc material to Mr Davies, who was said to have 'scrolled through the list of emails in the folder and read some emails between [Mr Lever] and [Person X]'. 177 A principal contention of ANSTO was that such conduct on the part of its senior officers would not have contravened the Workplace Surveillance Act 2005 (NSW), even if that Act had been in force in 2004 and even if a State law applied to the activities of a Commonwealth authority. Nor did such conduct contravene the Privacy Act 1988 (Cth), nor any other law in force in 2004, as to which Mr Lever provided no satisfactory rejoinder, so ANSTO further submitted. Moreover no contravention of pars (b) or (c) of s 298K(1) was said by ANSTO to have been articulated by Mr Lever, satisfactorily or at all.


case_text: Counsel for ANSTO drew attention to a number of authorities also relating to the relevant operation of the legislation. Specifically in relation to s 298K, in the context of BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430 ; (2000) 102 FCR 97 the Full Federal Court (Black CJ, Beaumont and Ryan JJ) at [35] said as follows: 'It has to be borne in mind, in construing s 298K, that it proscribes conduct by " an employer " directed to " an employee " or " other person " (emphasis added). That use of the singular suggests that the alleged injury or alteration of position has to be examined in the light of the circumstances of each individual employee. (It is not the point that in the interpretation of statutes, the singular ordinarily includes the plural; here we are concerned with the indications of legislative intention to be discerned from the actual language used.) It is also significant that the conduct struck at by each paragraph of s 298K is expressed by an active verb: "dismiss", "injure", "alter the position", "refuse to employ", and "discriminate". That implies that the proscription is essentially against an intentional act of the employer directed to an individual employee or prospective employee.' 22 I should interpolate to point out that in relation to the subsequent single judge decision in BHP Iron Ore following upon the Full Court's remitter of the proceedings to the trial judge, Kenny J of this Court decided in Australian Workers Union v BHP Iron Ore Pty Ltd [2001] FCA 3 ; (2001) 106 FCR 482, that '[ b ] efore s 298K(1) can apply , it must be possible to say of an employee that he or she is, individually speaking, in a worse situation after the employer's acts than before them; that the deterioration had been caused by those acts; and that the acts were intentional in the sense that the employer intended the deterioration to occur ' (see [54]). Upon that footing, the case foreshadowed by ANSTO was that Mr Lever '... has not established, or even alleged, that he ceased to be entitled to the benefits of an industrial instrument by reason of conduct of [ANSTO]', since '... there can have been no conduct of [ANSTO] that was for the reason prohibited by s 298L(1)(h)'. 128 Addressing what Mr Lever's case categorised as the first series of breaches pleaded by Mr Lever's points of claim (which of course I have earlier outlined), ANSTO emphasised that Dr Doherty's 'promotion' decision reflected the feature that Mr Lever '... [did] not challenge Dr Doherty's discretion as [Mr Lever's] supervisor to determine whether, and to what extent, to promote [Mr Lever], or the procedure adopted by Dr Doherty in his exercise of that discretion', but rather '... relate[d] to the possibility of a review of Dr Doherty's determination'. ANSTO contended that for Mr Lever to assert the existence of any assurance as to his future promotion to SPO1 'was an overly optimistic and untenable interpretation of the words attributed to Dr Doherty', ANSTO describing the words attributed by Mr Lever to Dr Doherty as 'innocuous' and such as not to have 'preclude[d] [Mr Lever] from pursuing any available avenue for a review of his December 2000 promotion' to SPO2, yet which Mr Lever did not seek to do. Attention was drawn then by ANSTO specifically to what Mr Lever alleged to have constituted breach of s 298K(1)(b) and (c) on account of Dr Doherty's failure merely '... to inform [Mr Lever] of his rights to a review of Dr Doherty's decision', and to the irrelevance of Mr Lever's ignorance of the availability of review, if such ignorance had been in fact a reality. Attention was further drawn by ANSTO to the presence of the words ' do or threaten to do ' contained in each of the two subsections of s 298K, being words described by ANSTO as inapt to include any mere failure to do something, comprising as that statutory expression did the connotation of a proscription ' ... essentially against an intentional act of the employer directed to an individual employee or prospective employee ' (see again in that regard dicta earlier cited from BHP Iron Ore v AWU ). 129 On that footing, ANSTO's case was that Mr Lever '... has not established that any conduct of [ANSTO] caused him to miss an opportunity to seek a review of Dr Doherty's decision to promote him', and further that Mr Lever did not express any intention '... to seek a review at the time of the relevant discussions with Dr Doherty', nor did he establish 'that the conduct of [ANSTO] was the reason for his failure to seek such a review'. ANSTO emphasised that Mr Lever did not allege for instance that Dr Doherty 'took any direct action to prevent a review in the knowledge that [Mr Lever] was seeking one', nor was there evidence of any action to such effect. It could not be said therefore, so the ANSTO submission continued, that for instance 'Dr Doherty intended his conduct to frustrate a course of action proposed by [Mr Lever] of which Dr Doherty was ignorant'. There is clear force in that ANSTO response to the first series of breaches alleged by Mr Lever. 130 It was pointed out moreover by ANSTO that if a failure to seek a review did involve an injury to Mr Lever ' in his... employment ' or an alteration of his ' position ' to his ' prejudice ' within the meaning of pars (b) or (c) of s 298K(1), then any such failure was attributable in any event to '... the actions or inaction of [Mr Lever] subsequent to the conduct of Dr Doherty'. Since Mr Lever knew of the availability of review, so ANSTO maintained, '... it was his own decision to forbear from pursuing one'; and further that since Mr Lever had not proved the so-called 'forbidden conduct' the subject of present consideration, it was unnecessary for ANSTO to prove the reason for it. Moreover it was ANSTO's case that there was an absence of evidence as to Dr Doherty harbouring any prohibited reason, he being the person whose conduct was sought to be impugned and the only person whose reasons could be ultimately relevant.


case_text: I should interpolate to point out that in relation to the subsequent single judge decision in BHP Iron Ore following upon the Full Court's remitter of the proceedings to the trial judge, Kenny J of this Court decided in Australian Workers Union v BHP Iron Ore Pty Ltd [2001] FCA 3 ; (2001) 106 FCR 482, that '[ b ] efore s 298K(1) can apply , it must be possible to say of an employee that he or she is, individually speaking, in a worse situation after the employer's acts than before them; that the deterioration had been caused by those acts; and that the acts were intentional in the sense that the employer intended the deterioration to occur ' (see [54]). Upon that footing, the case foreshadowed by ANSTO was that Mr Lever '... has not established, or even alleged, that he ceased to be entitled to the benefits of an industrial instrument by reason of conduct of [ANSTO]', since '... there can have been no conduct of [ANSTO] that was for the reason prohibited by s 298L(1)(h)'. 132 As I think rightly articulated by ANSTO, '[t]he evidence must be consistent with the hypothesis that [ANSTO] was motivated by the reason alleged by [Mr Lever]', yet there was 'no suggestion in the evidence or in [his] submissions... that his entitlement to the benefit of an industrial instrument was an issue, or even a topic of discussion, at or about the time of the alleged conduct', or that Mr Lever '... ceased to be entitled to the benefits of an industrial instrument by reason of conduct of [ANSTO]', within or pursuant to s 298L(1)(h). I was referred again to what was subsequently decided on remitter in Australian Workers' Union v BHP Iron-Ore Pty Ltd [2001] FCA 3 ; (2001) 106 FCR 482 as appears at [67] and [210] of the comprehensive reasons for judgment of Kenny J, with the explanation by ANSTO that '... the fact that the relevant employees continued to be entitled to the benefits of the same industrial instruments after the employer's conduct allegedly forbidden by s 298K(1) was sufficient to satisfy Kenny J that the employer had not engaged in that conduct for the reason that the employees were entitled to the benefit of that instrument as prohibited by s 298L(1)(h)'. Accordingly ANSTO relied on the circumstance that Mr Lever had not established, or even alleged, that he ceased to be entitled to the benefit of an industrial instrument by reason of the conduct of ANSTO. Reference was made moreover to Dr Doherty's testimony to the effect that his conduct on behalf of ANSTO sought to be impugned was motivated by his belief that he had in fact correctly classified Mr Lever as not being qualified for promotion to the ranking or level of SPO1, and it was submitted that such testimony of Dr Doherty should be accepted by the Court. It was testimony which I would find to have been genuinely expressed on grounds reasonably open objectively for Dr Doherty to have based his decision-making.