case_title: Harpur v Ariadne (1984) 2 Qd R 523

case_text: (For similar statements considering the purpose of an award of security for costs, see Lord Aldborough v Burton (1834) 2 My & K 401, 39 ER 997; Harpur v Ariadne Australia Ltd (1984) 2 Qd R 523 at 530; Re Energy Drilling Inc (unreported, Federal Court of Australia, Gummow J, 3 May 1989) at [24]; Microcorp Pty Ltd v Terran Computers Pty Ltd (unreported, Federal Court of Australia, Northrop J, 26 June 1992) at 16; Phoenix Court Pty Ltd v Melbourne Central Pty Ltd [1998] 753 FCA (19 June 1998); Silveira v Australian Institute of Management [2001] FCA 1358 at [6] ; Rocter Tanks Pty Ltd v Adam [2001] SASC 196 at [25] ; Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 208 ALR 564; Wollongong City Council v FPM Constructions Pty Limited [2004] NSWSC 523 at [19] ; La Rosa Constructions Pty Limited v PWR Developments Pty Limited [2004] NSWSC 235 at [7] ; Baygol Pty Ltd v Huntsman Chemical Co Australia Pty Ltd t/a RMAX [2004] FCA 1248 at [9] ; Interline Hydrocarbon Inc v Brenzil Pty Ltd [2005] QSC 109 at [34] .) 32 In Australia the substantial weight of authority has rejected any suggestion that a defendant is entitled to an order for security as of right where the impecuniosity of the company has been established: French J in Bryan E Fencott Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497 at 506. However the differing approaches are reflected by the broad terms of s 56 Federal Court Act, and the specific terms of s 1335 Corporations Act which apply where there is evidence that a corporate plaintiff is insolvent. A statutory predecessor of s 1335 was explained by the Full Court of the Supreme Court of Queensland in Harpur v Ariadne (1984) 2 Qd R 523 at 532 in the following terms: 'The mischief at which the provision is aimed is obvious. An individual who conducts his business affairs by medium of a corporation without assets would otherwise be in a position to expose his opponent to a massive bill of costs without hazarding his own assets. The purpose of an order for security is to require him, if not to come out from behind the skirts of the company, at least to bring his own assets into play. If however he is already available for whatever he is worth, the object of the legislation is seen to be satisfied.' 38 In my view an award of security in respect of future costs in this matter is appropriate. In forming this view I take into account the following factors: 1. The first and third applicants were ordered earlier this year to pay the first and second respondents security for costs up to the end of the first day of trial in the sum of $150 000: Sunstate Orchards Pty Ltd v Citrus Queensland Pty Ltd [2006] FCAFC 93. To paraphrase Emmett J in Checked-Out Pty Ltd v Eagle Eye Inspections Pty Ltd [2001] FCA 1475 at [26] , for reasons I detail below I do not see any reason at all to depart from the view of the Full Court in making an order that security for costs were payable, and note that the Full Court did not preclude a subsequent application at an appropriate time. 2. The first and third applicants have admitted that they are unable, from their own resources, to meet any costs order made against them in these proceedings. This admission of the applicants means that under both s 56 Federal Court Act and s 1335 Corporations Act the Court has a broad discretion, fettered only by the requirement that the Court act judicially, to order the applicant to give security for the payment of the respondent's costs (Branson J in Hopeshore Pty Limited v Melroad Equipment Pty Limited [2004] FCA 1445 at [3] ). 3. The application was filed and served on 22 November 2006 once it was clear that the trial would not finish on 24 November 2006, and the matter has been adjourned until May 2007. There is no issue of delay in respect of this application in respect of future costs. 4. Although the courts have shown reluctance to order security for future costs in respect of part-heard trial, on the basis that, if the applicant cannot provide security, it runs the risk of having wasted costs of the trial days already heard, the fact that the length of the proceedings was not foreseen is a factor which may influence the court to exercise its discretion in ordering security for those costs (see comments of Street CJ in Buckley v Bennell Design and Constructions Pty Ltd (1974) 1 ACLR 301 at 308). 5. In my view it is not appropriate to form any views as to the strength of the applicants' case at this stage of the trial (cf comments of Hill J in Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972 at 50,636). It is clear however that there are triable issues, and it has not been suggested to me that the case of the applicants is frivolous. 6. Insofar as this application is concerned, it is clear that the first and third applicants are unable to satisfy a costs order. I do not need to go to the evidence which has been heard to be so satisfied. Further, in my view the impropriety of reaching conclusions in this respect works both ways clearly the respondents strongly deny that their conduct has caused the impecuniosity of the first and third applicants (indeed it is a basis of the litigation), and in my view it is not proper at this stage when some, but not all, of the evidence has been heard, to make any findings as to this issue. I believe it is acceptable, however, to note evidence given in Court by Mr Hambleton, the administrator under the third applicant's deed of company arrangement, that in his opinion there was a strong prospect that the third applicant was insolvent from incorporation (TS 23 November p 572 ll 24-25). 7. Although the applicants contend that the reliance by the respondents on previous material filed in respect of security for costs is a tacit admission that nothing has occurred to justify this application for security for costs, I cannot accept that contention. Plainly, circumstances have altered. A trial which was listed for 10 days being the best estimate of Counsel as communicated to the Court is now manifestly running over that time. I shall consider this issue later in this judgment in relation to quantum. However I fail to see how the respondents, in relying on evidence of Mr McLellan that the costs for each day beyond 10 days would be $8166, is a tacit admission of the kind submitted by the applicants, notwithstanding that the affidavit of Mr McLellan was filed 27 March 2006. In my view the only 'admission' of the respondents in this respect is that their trial costs beyond 10 days would not exceed $8166 per day, and would not increase in the 2007 calendar year. 8. There is no evidence before me that the effect of an order awarding security for costs would be to stultify the litigation. Indeed as was clear during the hearing it would be the second applicant, Mr Tracy, who would be providing any security for costs ordered (TS 23 November 2006 p 585 ll 25-27). As pointed out by Jessup J in Acohs Pty Ltd v Ucorp Pty Ltd [2006] FCA 1279 at [49] , there is an intrinsic connection between the 'stultify factor' and the 'persons standing behind' factor as described by Beazley J in KB Cable . That the second applicant and his wife, Mrs Adrienne Tracy, are principal beneficiaries (and in the case of the second applicant, the principal architect), of the litigation before me is also clear from the evidence (for example TS 17 November 2006 p 194 ll 31; TS 17 November 2006 p 219 ll 41-43; TS 20 November 2006 p 233 ll 16-19, and exhibit R15). Further, that Mr and Mrs Tracy are of considerable means was made clear from evidence before the Court, including a balance sheet describing assets and liabilities of the second applicant, Mrs Tracy and their companies as at 12 November 2004 (exhibit R14). The first and third applicants appear to be impecunious, however there is no evidence before me that the second applicant or Mrs Tracy are at a similar financial disadvantage notwithstanding the events which have resulted in the litigation before me. No undertakings have been provided by the second applicant or any other person as to the costs to which the first and third applicants may become liable. Accordingly in such circumstances security for costs may be ordered to ensure that those who stand to benefit from the litigation undertake some of the risks. ( Rosenfield Nominees Pty Ltd v Bain & Co (1988) 14 ACLR 467 at 472-473; Acohs Pty Ltd v Merck Ltd [1997] FCA 573 ; Costa Vraca v Bell Regal Pty Ltd [2003] FCA 65 at [77] ; Harpur v Ariadne at 532; Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1 at 4; Bryan E Fencott Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497 at 511; Interline Hydrocarbon at [35]; Acohs Pty Ltd v Ucorp Pty Ltd [2006] FCA 1279 at [49] - [51] .)


case_outcome: cited

case_text: Stephen Colbran notes in his text Security for Costs (Longman Professional, 1993) at 41, that prior to the enactment of the Supreme Court of Judicature Act 1873 (UK) [36 & 37 Vict, c 66) security for costs did not apply to past costs and nor would further security be required for a new trial (although an interesting exception to this rule appears to be in the case of Harvey v Jacob (1817) 1 B & Ald 159, 106 ER 59 where the plaintiff, having been convicted of a felony and receiving a sentence of transportation to Australia, was ordered to give security for costs retrospective and prospective). However in 2006 the discretion of the Federal Court vested by s 56 Federal Court Act and s 1335 Corporations Act is very broad, and there is nothing in the terms of either section which would in any way limit the discretion of the Court or its jurisdiction to order security for costs already incurred by the respondents. Indeed, a review of the case law indicates that it is not uncommon for courts to order security for costs already incurred. Examples of cases where such orders have been made are Brocklebank & Co v King's Lynn Steam Ship Co (1878) 3 CPD 365; Massey v Allen (1879) 12 ChD 807; JWH Turner & Co Ltd v O'Riordan (1923) 40 WN (NSW) 64; Estates Property Investment Corporation Ltd v Pooley (1975) 3 ACLR 256; Procon (Great Britain) Ltd v Provincial Building Co Ltd [1984] 1 WLR 557; and Bryan E Fencott (and see the discussion of this topic in Colbran at pp 291-292).


case_text: I am prepared however to order security in the amount of $75 000, being in respect of seven further days of trial and further preparation for the May 2007 hearing. My reasons are as follows: 1. Although the applicants' costs assessor, Mr Graham, has deposed to a view that the trial will take a further three days, as distinct from the seven days which have now been allocated, I do not accept this view. During the 10 days of trial in November (of which seven days was hearing) Counsel made opening submissions and the evidence of only six witnesses was given. Nine witnesses of the respondent remain to be heard. This includes the second respondent, Mr Strahley, who I anticipate will be in the witness box for some time. Further, the seven days allocated in May 2007 includes closing submissions from Counsel, and dealing with the respondent's objections to the applicants evidence. On two occasions during the second week of the hearing I advised Counsel that I intended to list this matter for a further seven days in May 2007 (see TS 23 November 2006 p 585 ll 12-17 and TS 24 November 2006 p 775 ll 45-47. I note that on the second occasion the transcript reads that I indicated eight days, however, I believe it was understood by all parties in the room that I meant seven days being the 8-16 of May 2007). A listing for this matter for a period of seven days commencing 8 May 2006 has been made by the Federal Court Registry. At no time did either Counsel demur from this estimation. In my view this is a fair estimate of the time required and the respondents should be entitled to security for costs for seven further hearing days. I have compared the estimates of Mr McLellan in his affidavit filed 27 March 2006 ($8166 per day being fees for senior and junior counsel and the professional fees for the lawyers per day of trial) and Mr Graham in his affidavit filed 13 April 2006 ($7124.25 per day being fees for senior and junior counsel, the professional fees for the lawyers and the transcript fees per day of trial). In my view it is reasonable to order $50 000 in respect of the seven days of trial remaining. 2. Although the applicants dispute that any security for costs should include further preparation time, in my view it is appropriate to order security to encompass costs for further preparation. Notwithstanding the submission of Mr Perry that the applicants' case has now closed and that the majority of the work to be done henceforth is by Counsel for the applicants (TS 24 November 2006 p 755 ll 4-19), an adjournment part way through the trial will inevitably result in additional preparation costs being incurred by the parties prior to the resumption of the hearing: Brown v Rodgers [2006] FCA 713. It is to be expected that Counsel for the respondents will need to prepare once again for the May 2007 hearing. This is particularly so in light of the unfortunately lengthy adjournment of this matter from November 2006 to May 2007. In any event, as a general rule, costs of and incidental to an application include costs reasonably incurred both in the litigation and in preparation for the litigation ( Re Gibson's Settlement Trusts [1981] 1 All ER 233, Higgins v Nichol (No 2) (1972) 21 FLR 34, Liverpool City Council v Commonwealth of Australia (1993) 46 FCR 67, and I also note O 62 r 19 which contemplates preparation costs included in a taxation). It is reasonable that an award of security for costs should include preparation as well as trial time: The Council of the City of Sydney v Goldspar Australia Pty Ltd [2004] FCA 1023. In this matter the respondents claim five days preparation. Mr McLellan estimates preparation by senior and junior counsel at $5500 per day in total. Although the applicants dispute that further preparation for the trial is recoverable by the respondents, I note that in the affidavit of Mr Graham filed 13 April 2006 Mr Graham accepts the daily rate for preparation by Counsel except to the extent that the figure should be discounted by 10 per cent on the basis that no allowance should be made for GST. In my view it is reasonable to order the first and third applicants to pay security for costs in the sum of $25 000 in respect of preparation. 3. In making an order for security for costs the Court does not set out to give a complete and certain indemnity to a respondent, nor is it to be assumed that the applicant will fail in the proceeding: Brundza v Robbie & Co [No 2] [1952] HCA 49 ; (1952) 88 CLR 171 at 175; Menhaden Pty Ltd v Citibank NA (1984) 1 FCR 542 at 547; Caruso Australia Pty Ltd v Portec (Australia) Pty Ltd (1984) 1 FCR 311 at 314; Re Quad Consulting Pty Ltd (unreported, Federal Court of Australia, Burchett J, 28 June 1991 par 7); Bryan E Fencott at 515; Billinudgel Pastoral Co Pty Ltd & Ors v Westpac Banking Corp & Ors [1997] FCA 863. In my view the quantum of costs I have ordered is reasonable in the circumstances, taking into consideration the estimates of the expert witnesses for both parties, the likely length of the resumed hearing and the need for preparation after a lengthy adjournment. I do not consider it necessary to make any award in respect of general attendance.


case_text: In my view an award of security in respect of future costs in this matter is appropriate. In forming this view I take into account the following factors: 1. The first and third applicants were ordered earlier this year to pay the first and second respondents security for costs up to the end of the first day of trial in the sum of $150 000: Sunstate Orchards Pty Ltd v Citrus Queensland Pty Ltd [2006] FCAFC 93. To paraphrase Emmett J in Checked-Out Pty Ltd v Eagle Eye Inspections Pty Ltd [2001] FCA 1475 at [26] , for reasons I detail below I do not see any reason at all to depart from the view of the Full Court in making an order that security for costs were payable, and note that the Full Court did not preclude a subsequent application at an appropriate time. 2. The first and third applicants have admitted that they are unable, from their own resources, to meet any costs order made against them in these proceedings. This admission of the applicants means that under both s 56 Federal Court Act and s 1335 Corporations Act the Court has a broad discretion, fettered only by the requirement that the Court act judicially, to order the applicant to give security for the payment of the respondent's costs (Branson J in Hopeshore Pty Limited v Melroad Equipment Pty Limited [2004] FCA 1445 at [3] ). 3. The application was filed and served on 22 November 2006 once it was clear that the trial would not finish on 24 November 2006, and the matter has been adjourned until May 2007. There is no issue of delay in respect of this application in respect of future costs. 4. Although the courts have shown reluctance to order security for future costs in respect of part-heard trial, on the basis that, if the applicant cannot provide security, it runs the risk of having wasted costs of the trial days already heard, the fact that the length of the proceedings was not foreseen is a factor which may influence the court to exercise its discretion in ordering security for those costs (see comments of Street CJ in Buckley v Bennell Design and Constructions Pty Ltd (1974) 1 ACLR 301 at 308). 5. In my view it is not appropriate to form any views as to the strength of the applicants' case at this stage of the trial (cf comments of Hill J in Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972 at 50,636). It is clear however that there are triable issues, and it has not been suggested to me that the case of the applicants is frivolous. 6. Insofar as this application is concerned, it is clear that the first and third applicants are unable to satisfy a costs order. I do not need to go to the evidence which has been heard to be so satisfied. Further, in my view the impropriety of reaching conclusions in this respect works both ways clearly the respondents strongly deny that their conduct has caused the impecuniosity of the first and third applicants (indeed it is a basis of the litigation), and in my view it is not proper at this stage when some, but not all, of the evidence has been heard, to make any findings as to this issue. I believe it is acceptable, however, to note evidence given in Court by Mr Hambleton, the administrator under the third applicant's deed of company arrangement, that in his opinion there was a strong prospect that the third applicant was insolvent from incorporation (TS 23 November p 572 ll 24-25). 7. Although the applicants contend that the reliance by the respondents on previous material filed in respect of security for costs is a tacit admission that nothing has occurred to justify this application for security for costs, I cannot accept that contention. Plainly, circumstances have altered. A trial which was listed for 10 days being the best estimate of Counsel as communicated to the Court is now manifestly running over that time. I shall consider this issue later in this judgment in relation to quantum. However I fail to see how the respondents, in relying on evidence of Mr McLellan that the costs for each day beyond 10 days would be $8166, is a tacit admission of the kind submitted by the applicants, notwithstanding that the affidavit of Mr McLellan was filed 27 March 2006. In my view the only 'admission' of the respondents in this respect is that their trial costs beyond 10 days would not exceed $8166 per day, and would not increase in the 2007 calendar year. 8. There is no evidence before me that the effect of an order awarding security for costs would be to stultify the litigation. Indeed as was clear during the hearing it would be the second applicant, Mr Tracy, who would be providing any security for costs ordered (TS 23 November 2006 p 585 ll 25-27). As pointed out by Jessup J in Acohs Pty Ltd v Ucorp Pty Ltd [2006] FCA 1279 at [49] , there is an intrinsic connection between the 'stultify factor' and the 'persons standing behind' factor as described by Beazley J in KB Cable . That the second applicant and his wife, Mrs Adrienne Tracy, are principal beneficiaries (and in the case of the second applicant, the principal architect), of the litigation before me is also clear from the evidence (for example TS 17 November 2006 p 194 ll 31; TS 17 November 2006 p 219 ll 41-43; TS 20 November 2006 p 233 ll 16-19, and exhibit R15). Further, that Mr and Mrs Tracy are of considerable means was made clear from evidence before the Court, including a balance sheet describing assets and liabilities of the second applicant, Mrs Tracy and their companies as at 12 November 2004 (exhibit R14). The first and third applicants appear to be impecunious, however there is no evidence before me that the second applicant or Mrs Tracy are at a similar financial disadvantage notwithstanding the events which have resulted in the litigation before me. No undertakings have been provided by the second applicant or any other person as to the costs to which the first and third applicants may become liable. Accordingly in such circumstances security for costs may be ordered to ensure that those who stand to benefit from the litigation undertake some of the risks. ( Rosenfield Nominees Pty Ltd v Bain & Co (1988) 14 ACLR 467 at 472-473; Acohs Pty Ltd v Merck Ltd [1997] FCA 573 ; Costa Vraca v Bell Regal Pty Ltd [2003] FCA 65 at [77] ; Harpur v Ariadne at 532; Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1 at 4; Bryan E Fencott Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497 at 511; Interline Hydrocarbon at [35]; Acohs Pty Ltd v Ucorp Pty Ltd [2006] FCA 1279 at [49] - [51] .)


case_outcome: applied

case_text: Notwithstanding the long-standing principle that the door of the court should not be barred to a prospective applicant because of impecuniosity (Bowen LJ in Cowell v Taylor (1885) 31 Ch D 34 at 38, Full Court of the Federal Court in Cherry v Read (unreported, Black CJ, Sackville and Finn JJ, 21 November 1996 at 8), and note cases discussed in GE Dal Pont Law of Costs LexisNexis Butterworths 2003 at p 955) the protective object of an order for security for costs is well known. As Einstein J said in Idoport Pty Limited & Anor v National Australia Bank Limited [2001] NSWSC 744 at [52] : 'The purpose of a security for costs order is therefore a protective jurisdiction to ensure that the primary purposes for having costs orders themselves, can be achieved. A defendant is protected against the risk that a costs order obtained at the end of the day may turn out to be of no value by reason of the impecuniosity of the plaintiff.' 29 As submitted by Counsel in Idoport in my view correctly the jurisdiction to award security for costs should thus be seen as protecting the efficacy of the exercise of the jurisdiction to award costs and it is undesirable for the court to permit a situation to arise where a party's success is pyrrhic because an order for costs cannot be met ( Idoport at [33]).


case_text: (For similar statements considering the purpose of an award of security for costs, see Lord Aldborough v Burton (1834) 2 My & K 401, 39 ER 997; Harpur v Ariadne Australia Ltd (1984) 2 Qd R 523 at 530; Re Energy Drilling Inc (unreported, Federal Court of Australia, Gummow J, 3 May 1989) at [24]; Microcorp Pty Ltd v Terran Computers Pty Ltd (unreported, Federal Court of Australia, Northrop J, 26 June 1992) at 16; Phoenix Court Pty Ltd v Melbourne Central Pty Ltd [1998] 753 FCA (19 June 1998); Silveira v Australian Institute of Management [2001] FCA 1358 at [6] ; Rocter Tanks Pty Ltd v Adam [2001] SASC 196 at [25] ; Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 208 ALR 564; Wollongong City Council v FPM Constructions Pty Limited [2004] NSWSC 523 at [19] ; La Rosa Constructions Pty Limited v PWR Developments Pty Limited [2004] NSWSC 235 at [7] ; Baygol Pty Ltd v Huntsman Chemical Co Australia Pty Ltd t/a RMAX [2004] FCA 1248 at [9] ; Interline Hydrocarbon Inc v Brenzil Pty Ltd [2005] QSC 109 at [34] .) 38 In my view an award of security in respect of future costs in this matter is appropriate. In forming this view I take into account the following factors: 1. The first and third applicants were ordered earlier this year to pay the first and second respondents security for costs up to the end of the first day of trial in the sum of $150 000: Sunstate Orchards Pty Ltd v Citrus Queensland Pty Ltd [2006] FCAFC 93. To paraphrase Emmett J in Checked-Out Pty Ltd v Eagle Eye Inspections Pty Ltd [2001] FCA 1475 at [26] , for reasons I detail below I do not see any reason at all to depart from the view of the Full Court in making an order that security for costs were payable, and note that the Full Court did not preclude a subsequent application at an appropriate time. 2. The first and third applicants have admitted that they are unable, from their own resources, to meet any costs order made against them in these proceedings. This admission of the applicants means that under both s 56 Federal Court Act and s 1335 Corporations Act the Court has a broad discretion, fettered only by the requirement that the Court act judicially, to order the applicant to give security for the payment of the respondent's costs (Branson J in Hopeshore Pty Limited v Melroad Equipment Pty Limited [2004] FCA 1445 at [3] ). 3. The application was filed and served on 22 November 2006 once it was clear that the trial would not finish on 24 November 2006, and the matter has been adjourned until May 2007. There is no issue of delay in respect of this application in respect of future costs. 4. Although the courts have shown reluctance to order security for future costs in respect of part-heard trial, on the basis that, if the applicant cannot provide security, it runs the risk of having wasted costs of the trial days already heard, the fact that the length of the proceedings was not foreseen is a factor which may influence the court to exercise its discretion in ordering security for those costs (see comments of Street CJ in Buckley v Bennell Design and Constructions Pty Ltd (1974) 1 ACLR 301 at 308). 5. In my view it is not appropriate to form any views as to the strength of the applicants' case at this stage of the trial (cf comments of Hill J in Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972 at 50,636). It is clear however that there are triable issues, and it has not been suggested to me that the case of the applicants is frivolous. 6. Insofar as this application is concerned, it is clear that the first and third applicants are unable to satisfy a costs order. I do not need to go to the evidence which has been heard to be so satisfied. Further, in my view the impropriety of reaching conclusions in this respect works both ways clearly the respondents strongly deny that their conduct has caused the impecuniosity of the first and third applicants (indeed it is a basis of the litigation), and in my view it is not proper at this stage when some, but not all, of the evidence has been heard, to make any findings as to this issue. I believe it is acceptable, however, to note evidence given in Court by Mr Hambleton, the administrator under the third applicant's deed of company arrangement, that in his opinion there was a strong prospect that the third applicant was insolvent from incorporation (TS 23 November p 572 ll 24-25). 7. Although the applicants contend that the reliance by the respondents on previous material filed in respect of security for costs is a tacit admission that nothing has occurred to justify this application for security for costs, I cannot accept that contention. Plainly, circumstances have altered. A trial which was listed for 10 days being the best estimate of Counsel as communicated to the Court is now manifestly running over that time. I shall consider this issue later in this judgment in relation to quantum. However I fail to see how the respondents, in relying on evidence of Mr McLellan that the costs for each day beyond 10 days would be $8166, is a tacit admission of the kind submitted by the applicants, notwithstanding that the affidavit of Mr McLellan was filed 27 March 2006. In my view the only 'admission' of the respondents in this respect is that their trial costs beyond 10 days would not exceed $8166 per day, and would not increase in the 2007 calendar year. 8. There is no evidence before me that the effect of an order awarding security for costs would be to stultify the litigation. Indeed as was clear during the hearing it would be the second applicant, Mr Tracy, who would be providing any security for costs ordered (TS 23 November 2006 p 585 ll 25-27). As pointed out by Jessup J in Acohs Pty Ltd v Ucorp Pty Ltd [2006] FCA 1279 at [49] , there is an intrinsic connection between the 'stultify factor' and the 'persons standing behind' factor as described by Beazley J in KB Cable . That the second applicant and his wife, Mrs Adrienne Tracy, are principal beneficiaries (and in the case of the second applicant, the principal architect), of the litigation before me is also clear from the evidence (for example TS 17 November 2006 p 194 ll 31; TS 17 November 2006 p 219 ll 41-43; TS 20 November 2006 p 233 ll 16-19, and exhibit R15). Further, that Mr and Mrs Tracy are of considerable means was made clear from evidence before the Court, including a balance sheet describing assets and liabilities of the second applicant, Mrs Tracy and their companies as at 12 November 2004 (exhibit R14). The first and third applicants appear to be impecunious, however there is no evidence before me that the second applicant or Mrs Tracy are at a similar financial disadvantage notwithstanding the events which have resulted in the litigation before me. No undertakings have been provided by the second applicant or any other person as to the costs to which the first and third applicants may become liable. Accordingly in such circumstances security for costs may be ordered to ensure that those who stand to benefit from the litigation undertake some of the risks. ( Rosenfield Nominees Pty Ltd v Bain & Co (1988) 14 ACLR 467 at 472-473; Acohs Pty Ltd v Merck Ltd [1997] FCA 573 ; Costa Vraca v Bell Regal Pty Ltd [2003] FCA 65 at [77] ; Harpur v Ariadne at 532; Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1 at 4; Bryan E Fencott Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497 at 511; Interline Hydrocarbon at [35]; Acohs Pty Ltd v Ucorp Pty Ltd [2006] FCA 1279 at [49] - [51] .)


case_outcome: distinguished

case_text: Stephen Colbran notes in his text Security for Costs (Longman Professional, 1993) at 41, that prior to the enactment of the Supreme Court of Judicature Act 1873 (UK) [36 & 37 Vict, c 66) security for costs did not apply to past costs and nor would further security be required for a new trial (although an interesting exception to this rule appears to be in the case of Harvey v Jacob (1817) 1 B & Ald 159, 106 ER 59 where the plaintiff, having been convicted of a felony and receiving a sentence of transportation to Australia, was ordered to give security for costs retrospective and prospective). However in 2006 the discretion of the Federal Court vested by s 56 Federal Court Act and s 1335 Corporations Act is very broad, and there is nothing in the terms of either section which would in any way limit the discretion of the Court or its jurisdiction to order security for costs already incurred by the respondents. Indeed, a review of the case law indicates that it is not uncommon for courts to order security for costs already incurred. Examples of cases where such orders have been made are Brocklebank & Co v King's Lynn Steam Ship Co (1878) 3 CPD 365; Massey v Allen (1879) 12 ChD 807; JWH Turner & Co Ltd v O'Riordan (1923) 40 WN (NSW) 64; Estates Property Investment Corporation Ltd v Pooley (1975) 3 ACLR 256; Procon (Great Britain) Ltd v Provincial Building Co Ltd [1984] 1 WLR 557; and Bryan E Fencott (and see the discussion of this topic in Colbran at pp 291-292). 48 In my view there are, as Hill J said in Equity Access , a number of discretionary issues peculiar to the facts of the present case which are persuade me that it is not appropriate to order that costs of 10 days of the trial already heard be encompassed in an award for security for costs. They are as follows: 1. In cases where security for costs have been awarded in respect of costs already incurred, there is often a catalyst which distinguishes the case from the usual circumstance where security is awarded in respect of prospective costs, and therefore justifies the application. So, for example: • in Pooley , Procon and Bryan E Fencott the retrospectivity of the award for security was not in contention • in Turner and Pooley the respondents had only immediately prior to bringing the application discovered that the applicants were insolvent. In the case before me, no such catalyst is evident. 2. In my view it would be oppressive to require the first and third applicants to now pay security for costs for those 10 days of trial already held, when they could reasonably rely on the decision in Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 3) [2006] FCA 1498 as meaning that they were not subject to a security for costs order in respect of that part of the trial. Although Mr Bell on behalf of the respondents made no secret of the fact that, if the trial did not commence within the scheduled time, his clients would be making an application for security for costs in the sum of $200 000, in my view to allow the respondents to have security for costs which have already been denied would be unjust in the circumstances. 3. Following on from this point, I note that I had dismissed the application by the first and second respondents for security for costs for that part of the trial just heard, on the basis of delay in bringing that application . Notwithstanding that the matter has now been adjourned, that the respondents indicated that they would seek security for costs if the trial did not get underway, and that the respondents were prompt in renewing their call for security for costs in respect of the trial dates once it was clear that the trial would not conclude within the scheduled 10 days, nothing has occurred which impacts on the reasons I gave dismissing the application of the respondents in respect of security for costs for the 10 days of trial. 4. The fact that the trial was not completed within the 10 days could substantially be attributed to such actions which could properly be laid at the feet of the applicants including the failure of the applicants to comply with earlier directions in relation to exchanging objections to evidence (thus requiring valuable scheduled trial time to be spent dealing with such issues), an adjournment requested by the applicants for the entirety of Wednesday 15 November 2006, and the failure of a key witness of the applicants to appear at Court which required me to stand down the Court while I considered an appropriate ruling in the circumstances. Having said that, it appeared that, despite my formal direction that the parties seek to resolve objections to evidence in advance of the trial and further attempts by Counsel on this score, the respondents' objections to evidence required two days of trial time which was considerably more than had been anticipated. Further, while no blame at all attaches to Counsel the fact remains that the examination, cross-examination and re-examination of the second applicant extended over four days, which also appeared to be considerably more than had been anticipated. Accordingly, in light of these developments it would be unfair to lay fault for the failure of the trial to finish during the allotted time completely at the feet of the applicants.


case_text: It is well-settled that the court is vested with a discretion to award or not security for costs, and that the power is wide with the need to exercise the discretion judicially being the only relevant limitation ( Bell Wholesale at 3). However, useful guidelines which courts typically take into account in determining such applications were listed by Beazley J in KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 at 197-198 as follows: 1. That such applications should be brought promptly. 2. That regard is to be had to the strength and bona fides of the applicant's case. 3. Whether the applicant's impecuniosity was caused by the respondent's conduct subject of the claim. 4. Whether the respondent's application for security is oppressive. 5. Whether there are any persons standing behind the company who are likely to benefit from the litigation and who are willing to provide the necessary security. 6. Whether persons standing behind the company have offered any personal undertaking to be liable for the costs. 7. Is the party against whom security is sought in substance a plaintiff.


case_text: (For similar statements considering the purpose of an award of security for costs, see Lord Aldborough v Burton (1834) 2 My & K 401, 39 ER 997; Harpur v Ariadne Australia Ltd (1984) 2 Qd R 523 at 530; Re Energy Drilling Inc (unreported, Federal Court of Australia, Gummow J, 3 May 1989) at [24]; Microcorp Pty Ltd v Terran Computers Pty Ltd (unreported, Federal Court of Australia, Northrop J, 26 June 1992) at 16; Phoenix Court Pty Ltd v Melbourne Central Pty Ltd [1998] 753 FCA (19 June 1998); Silveira v Australian Institute of Management [2001] FCA 1358 at [6] ; Rocter Tanks Pty Ltd v Adam [2001] SASC 196 at [25] ; Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 208 ALR 564; Wollongong City Council v FPM Constructions Pty Limited [2004] NSWSC 523 at [19] ; La Rosa Constructions Pty Limited v PWR Developments Pty Limited [2004] NSWSC 235 at [7] ; Baygol Pty Ltd v Huntsman Chemical Co Australia Pty Ltd t/a RMAX [2004] FCA 1248 at [9] ; Interline Hydrocarbon Inc v Brenzil Pty Ltd [2005] QSC 109 at [34] .)


case_title: Liverpool City Council v Commonwealth of Australia (1993) 46 FCR 67


case_title: Lord Aldborough v Burton (1834) 2 My & K 401; (1834) 39 ER 997


case_title: Massey v Allen (1879) 12 ChD 807


case_title: Menhaden Pty Ltd v Citibank NA (1984) 1 FCR 542


case_title: Microcorp Pty Ltd v Terran Computers Pty Ltd, unreported, Federal Court of Australia, Northrop J, 26 June 1992


case_title: Pearson v Naydler (1977) 1 WLR 899

case_text: However, the courts have traditionally adopted different approaches to individual applicants and corporate applicants. The approach was summarised by Megarry VC in Pearson v Naydler (1977) 1 WLR 899 at 904 as follows: 'In relation to security for costs, there seems to me to be an essential distinction between natural persons and limited companies as plaintiffs. For a natural person, the basic rule is that he will not be ordered to give security for costs, however poor he is... In the case of a limited company, there is no basic rule conferring immunity from any liability to give security for costs. The basic rule is the opposite...'


case_title: Phoenix Court Pty Ltd v Melbourne Central Pty Ltd [1998] 753 FCA


case_title: Procon (Great Britain) Ltd v Provincial Building Co Ltd [1984] 1 WLR 557


case_title: Re Energy Drilling Inc , unreported, Federal Court of Australia, Gummow J, 3 May 1989


case_title: Re Gibson's Settlement Trusts [1981] 1 All ER 233


case_title: Re Quad Consulting Pty Ltd , unreported, Federal Court of Australia, Burchett J, 28 June 1991


case_title: Rocter Tanks Pty Ltd v Adam [2001] SASC 196


case_title: Rosenfield Nominees Pty Ltd v Bain & Co (1988) 14 ACLR 467


case_title: Silveira v Australian Institute of Management [2001] FCA 1358


case_text: In summary, the submissions of the applicants are as follows: 1. Short notice was given by the respondents for this application. 2. It is admitted that the first and third applicants are unable, from their own resources, to meet any costs order made against them in these proceedings. 3. The respondents have not adduced any new factual evidence in support of the application to justify the costs of $217 229. 4. It is inappropriate to consider future costs in light of the affidavit of Mr McLellan. 5. Mr McLellan made no calculation of the costs now claimed, and there is no suggestion that a person experienced in the calculation of legal costs has turned their mind to claims made in items 4-7 of the schedule. 6. No authority was cited by the respondents or principle enunciated to support the contention that in exercise of its discretion the Court will order security for costs already incurred, particularly where there has been an earlier unsuccessful application. 7. Mr Graham's evidence is that the daily rate for party and party costs is $7124.25, making a total of $21 372.75 for the further three days of the trial. Accordingly, in all the circumstances if the Court decides to exercise its discretion to order further security then the appropriate quantum of such security is $21 372. 8. The effect of Mr Graham's evidence is that the costs claimed at items 1, 2, 3 and 6 of the schedule are not appropriate to form part of an order for security because they have already been incurred and because they have been dealt with by the orders made by the Court on the two previous security for costs applications. 9. In giving his evidence, Mr Graham relies on the fact that all that remains to be done in relation to the witnesses is cross-examination and re-examination. 10. The facts in Bryan E Fencott and Associates Pty Ltd v Eretta Pty Ltd were not relevant to this case; further the observations of French J in that case concern the issue of power rather than discretion. Neither Bryan E Fencott and Associates Pty Ltd v Eretta Pty Ltd nor another case, Southern Cross Exploration NL v Fire and All Ricks Insurance Co Ltd (1985) 1 NSWLR 114, are authority for the proposition that the Court has power to order security for costs already incurred in the circumstances of this case. 11. The fact that the respondents have relied on previous affidavits filed by them in support of earlier applications for security for costs is a tacit admission that nothing that has occurred since those affidavits were filed. 12. The respondents chose not to cross-examine Mr Graham, and in those circumstances Mr Graham's evidence as to the quantum of any appropriate security order is uncontested. 13. There is no admissible evidence before the Court to support the assertion that the trial will take a further seven days to complete. The only admissible evidence which comprehends the extent to which the trial has been heard and the likely further duration of the trial is Mr Graham's evidence in which he gives his expert opinion that the trial will take a further three days to complete. This estimate is based on a consideration of the remaining witnesses to be cross-examined by the applicants and has regard to the fact that written submissions are likely to be required. 14. It is inappropriate for the Court to take into account any of the evidence adduced thus far at the trial because the evidence is incomplete and no findings of fact have yet been made, including in relation to whether the third applicant was trading whilst insolvent or whether Mr Tracy had transferred property to which he was beneficially entitled in order to defeat creditors. 15. As the respondent had failed in its most recent application for security for costs ( Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 3) [2006] FCA 1498) and had not appealed the decision, the decision created an estoppel against a further application based on the facts extant at the date of the order. The policy reason for such an estoppel is that, had the applicants known on the date upon which the Court dismissed the most recent security for costs application that they would have to provide a further $200 000 security, they may have elected to discontinue the proceedings at that point, thereby saving the costs of the 10 day trial because of their inability to meet the further security order. This is prejudice which cannot now be remedied. 16. Mr McLellan's evidence is unhelpful in that it does not contain any assessment of the likely further duration of the trial having regard to the witnesses already dealt with or remaining witnesses; whether the respondents are able to obtain an order for security for incurred costs or whether the respondents are estopped from obtaining further security; or whether the respondents are entitled on a party and party basis to obtain an allowance for preparation for trial more than once. 44 This application is of particular interest because it has been brought 10 days into a trial which has been adjourned and is expected to run another seven days. Two cases where similar applications were brought are Southern Cross Exploration and Equity Access . 45 In Southern Cross , the defendants brought an application for security for costs after 65 days of trial, in circumstances where it was anticipated that the trial would continue for another 30-40 days. The defendants sought security for the costs of the whole of the proceedings, namely for the costs they had already incurred as well as for the costs of the remainder of the trial. Waddell J held that the words of s 533(1) Companies (New South Wales) Code were in sufficiently wide terms to give the court power to make an order for security in respect of costs which had been incurred before the making of the order ((1985) 1 NSWLR 114 at 122). His Honour considered that the defendants' delay in making what was their first application for security for costs was a most important factor to be taken into account in the exercise of the court's discretion in this case (at 123). The defendants in that case submitted that it could not reasonably have been foreseen that the trial of the proceedings would take as long it had taken and was estimated to take in the future, and that therefore a late application was justified. Waddell J, in refusing to make an order for security in respect of costs already incurred, said: 'In the present case it seems to me that the circumstances mentioned are such as to make it quite impossible, without severe and unexpected prejudice to the plaintiffs, to make an order for security in respect of costs which have already been incurred by the defendants. The plaintiffs have incurred very substantial costs in relation to the proceedings to date and have been allowed to do so by the defendants in the absence of any intimation of any application for security for costs. It would clearly be highly unjust to make such an order in respect of costs already incurred.' 46 However, Waddell J was prepared to make an order in respect of future costs in light of the unexpected length of the trial. 49 Like Waddell J in Southern Cross and Hill J in Equity Access , weighing all the factors as best I can, in my view the appropriate conclusion in this case is that the respondents are entitled to an award for security for costs in respect of future costs, but not in respect of costs for that part of the trial recently heard.


case_text: On the afternoon of Thursday 23 November 2006 I ordered the Court to be adjourned while I considered the issue of whether time for hearing of this notice of motion should be abridged. I subsequently ruled that time in respect of this matter be abridged, that the requirements of O 19 r 3 Federal Court Rules be dispensed with in relation to the motion filed by the respondents on 22 November 2006, and that the notice of motion should be returnable on Friday 24 November 2006. My reasons were as follows: 1. I noted that O 19 r 3 provides: Where a notice of motion is required to be served, it shall, unless the Court or a Judge otherwise orders, be served not less than three days before the date fixed for the motion. The policy in O 19 r 3 of requiring three days notice of service of a notice of motion prior to the date fixed for the motion is to allow the respondent to the notice of motion time to prepare to meet the notice, and to avoid the situation where the respondent to the notice of motion is taken by surprise by the application. In this case, the notice of motion was filed in Court at approximately 5.00 pm on Wednesday 22 November 2006. If the notice of motion were heard on Friday afternoon at 2.15 pm, obviously less than two full days notice would have been provided between serving the notice and the hearing. 2. The discretion of the Court to order that the requirements of O 19 r 3 be dispensed with appears to be unfettered. However that discretion must be exercised judicially. 3. At the hearing on 16 November 2006, Mr Bell for the respondents, in, as he said 'laying all the cards on the table', indicated that if the trial were pushed away to the earliest convenient date, the respondents would be renewing their application for security for costs. The comments of Mr Bell that day were made in the context of submissions as to whether the trial should proceed at that time. However, despite the efforts of Counsel and this Court to conclude the hearing during the scheduled time, it was clear by early during the week commencing 20 November 2006 that the trial would not conclude by Friday 24 November 2006. Further, given the history of this matter and the comments of Mr Bell noted above, the fact that the respondents would be making an application for further security for costs if the trial did not end during the scheduled two weeks could be of no surprise to anyone, including the applicants. 4. The respondents relied on affidavits filed in March and June 2006. This material was not new, and has been before the applicants for some time. 5. I had previously heard, and dismissed, an application for security for costs by the respondents on 9 November 2006. While the circumstances then were not the same as those before me in considering the issue of abridgment of a fresh application for security, it was clear that the issue of security for costs had recently been raised substantively by the parties in this Court in relation to this case, and would have been considered by the applicants. 6. The respondents had already filed their submissions in support of this notice of motion. This was done at the same time as the notice of motion was filed. 7. The parties were before me until the following day, and Counsel had all indicated that they are not available the following week to argue the substantive matter or an application for security for costs. While this in itself was not determinative, and indeed as pointed out by the High Court in State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 the interests of justice are not subordinated to issues of case management, in light of the history of this case, the availability of Counsel, and the fact that these issues were not new, it was in my view reasonable that this notice of motion be heard on Friday 24 November 2006. 8 In light of this ruling, Mr Perry for the applicants requested a 10.15 am commencement on Friday to enable him time that morning to prepare to respond to the notice of motion, which I granted. 9 Cross-examination of witnesses by Mr Perry did not conclude until 5.05 pm on Friday afternoon, however Mr Bell pressed for the respondents' notice of motion in respect of security for costs to nonetheless be heard on the basis that there was a risk that the application could not be heard in the foreseeable future.


case_title: Sunstate Orchards Pty Ltd v Citrus Queensland Pty Ltd [2006] FCAFC 93


case_title: The Council of the City of Sydney v Goldspar Australia Pty Ltd [2004] FCA 1023


case_title: Wollongong City Council v FPM Constructions Pty Limited [2004] NSWSC 523


case_outcome: followed

case_title: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576

case_text: The third issue raised by the appellant claims that the Tribunal erred in not identifying to him the conflict between the appellant's statement dated 11 December 2002 and the submissions prepared for him in 2005 relating to his claims. Such conflict was obvious on the face of the documents and arose after the Minister's decision. As such the Tribunal was entitled to rely on such issue in making its finding without expressly informing the appellant that it would be relying on such inconsistencies in reaching its decision: see Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590- 591. 26 It is apparent that the issues of concern to the Tribunal were made abundantly clear to the appellant by the first s 424A(1) letter and the second s 424A(1) letter. The appellant's responses to the Tribunal's invitation to comment addressed those issues. In SZBEL [2006] HCA 63 ; 231 ALR 592 which applied the decision of the Full Court of this Court in Alphaone 49 FCR 576 the Court held that a tribunal is not obliged to put to an applicant its own appraisals of the material before it unless they are not an obvious and natural appraisal of that material. The meaning of obvious and natural in this context has been considered in numerous decisions: see Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 108. In Re Minister for Immigration and Multicultural and Affairs; Ex parte S154/2002 (2003) 77 ALJR 1909 at 1923 [86] Kirby J said: The extent of the duty to indicate a relevant piece of apparently adverse evidence for comment obviously depends upon the importance that may be attached to that evidence and whether the importance was so obvious that it did not need to be underlined. In a body proceeding by inquisitorial methods, procedural fairness may require bringing the attention of the applicant to critical facts that appear to contradict, or cast doubt on, his or her claim. Where an observation about an applicant's case is one that is obvious and natural to the circumstances that evoked it, it is usually unnecessary for it to be specifically called to notice .


case_outcome: referred to

case_text: The fourth issue raised by the appellant claims that the Tribunal failed to tell the appellant that it was not satisfied that corruption in the Ukraine would adversely impact on the appellant for a Convention reason. The claim of corruption was raised by the appellant in response to the Tribunal's invitation to comment on the change in the political climate in the Ukraine. Because of the inadequacy of the appellant's explanation which might provide a link between the alleged corruption and his persecution, there was no obligation on the Tribunal to specifically state to the appellant that it might reject his assertion as a basis for his claim to be a refugee: see Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539 at 557 and Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 633. Further the Tribunal is not required to give the appellant a running commentary of its reasons: see SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834 at [11] .


case_text: Before the Court, the respondent relied upon the decision in Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362 ; (2001) 113 FCR 541 at 553 in support of its submission that the Tribunal was not required to hold a hearing. However the facts in that decision are distinguishable since different statutory provisions applied. The Tribunal member had resigned after the hearing and before delivering any decision. Pursuant to s 428 of the Act, another person may be authorised to hear evidence in such circumstances. The statutory provision specifically authorised the continuation of the review by another person. In the present proceedings, the decision of the first Tribunal was set aside due to jurisdictional error and the proceedings were remitted for determination according to law. No question arises of another person continuing the same review as is envisaged by s 428 of the Act. 31 Despite the time limit fixed by the first s 424A(1) letter, the Tribunal sent its second s 424A(1) letter extending the time for submission of further evidence and, due to its own omission from such letter wrote again on 10 August 2005 extending the time for compliance to 24 August 2005. The requested information was received by the Tribunal on 23 August 2005 within the time limit set by the Tribunal. Accordingly the Court is unable to agree with her Honour that the appellant failed to comply with the time limit imposed by the Tribunal and that s 424C(1) of the Act applied to disentitle the appellant from a hearing. 32 By sending the first and second s 424A(1) letters it was clear that the Tribunal required additional information to enable it to determine the application before it. If after the receipt of such further information the Tribunal was still unable to make a decision favourable to the appellant it had an obligation pursuant to s 425 of the Act to invite the appellant to appear before it. The fact that a previous hearing was held did not discharge this obligation in view of the fact that the Tribunal had requested further information. The Tribunal made its decision in the absence of making further inquiry of Mr Slater as it was invited to do, and without inviting the appellant to appear at a hearing.


case_text: The appellant also submitted that the second Tribunal made its decision based upon documents provided to the first Tribunal hearing. However, there is no reason why documents provided in respect of the first Tribunal hearing could not be used in the second hearing. The second Tribunal's decision clearly indicates that it had sought additional information and considered the further submissions made by the appellant's agent in response. The Tribunal's duty to review the Minister's decision under s 414(1) of the Act continues until one of the outcomes described in s 415(2) of the Act is reached: see Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1 at [26] . 20 Whilst the appellant made no submissions directly relating to the grounds of appeal referred to in his Notice of Appeal, the Court will nevertheless consider such grounds. 22 As a second issue, the appellant claimed that the Tribunal failed to inform him that one of the reasons that it would find an absence of persecution was because the appellant's letter sent to the Tribunal following the refusal of the Minister to grant a visa dated 20 April 2000 did not refer to persecution. The appellant was not entitled to assume that the issues considered by the Minister to be critical were the only issues of concern to the Tribunal. The Tribunal was empowered to consider matters in addition to those raised before the Minister, as requested by the appellant, and to make a decision upon them: see Applicant NAFF of 2002 221 CLR [22]-[25]. 34 There is a further consideration. The original decision of the Tribunal, having been set aside had 'no operative effect': see SZILQ [2007] FCA 942. The reconstituted Tribunal was required to carry out its statutory functions as if the first hearing had not taken place. The Tribunal's duty required it to seek further information under s 424A(1) and in the absence of a finding in favour of the appellant was required to invite the appellant ' to appear before the Tribunal to give evidence and present arguments relating to the issuing arising in relation to the decision under review' pursuant to s 425 of the Act: see Applicant NAFF of 2002 221 CLR at [26] [27].


case_title: Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539


case_text: It is apparent that the issues of concern to the Tribunal were made abundantly clear to the appellant by the first s 424A(1) letter and the second s 424A(1) letter. The appellant's responses to the Tribunal's invitation to comment addressed those issues. In SZBEL [2006] HCA 63 ; 231 ALR 592 which applied the decision of the Full Court of this Court in Alphaone 49 FCR 576 the Court held that a tribunal is not obliged to put to an applicant its own appraisals of the material before it unless they are not an obvious and natural appraisal of that material. The meaning of obvious and natural in this context has been considered in numerous decisions: see Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 108. In Re Minister for Immigration and Multicultural and Affairs; Ex parte S154/2002 (2003) 77 ALJR 1909 at 1923 [86] Kirby J said: The extent of the duty to indicate a relevant piece of apparently adverse evidence for comment obviously depends upon the importance that may be attached to that evidence and whether the importance was so obvious that it did not need to be underlined. In a body proceeding by inquisitorial methods, procedural fairness may require bringing the attention of the applicant to critical facts that appear to contradict, or cast doubt on, his or her claim. Where an observation about an applicant's case is one that is obvious and natural to the circumstances that evoked it, it is usually unnecessary for it to be specifically called to notice .


case_text: Barnes FM held that the Tribunal was correct in determining that pursuant to ss 424C(1) and 425 (3) of the Act the appellant lost his entitlement to appear before the Tribunal because the appellant failed to respond to the first s 424A(1) letter and relied upon SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at [19] .


case_title: SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834


case_title: Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100


case_text: The appellant submitted that there had been a denial of procedural fairness in light of the principles applied in SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63 ; (2006) 231 ALR 592 because the Tribunal had rejected the appellant's claims on five grounds which were not obviously open to it on the material presented to it. 14 Barnes FM found that the Tribunal placed the appellant on notice by both the first s 424A(1) letter and the second s 424A(1) letter that the Tribunal might not have a further hearing and gave the appellant an opportunity to address the issues of concern to the Tribunal. Barnes FM found that there was no error in the exercise of discretion by the Tribunal to not hold a second hearing. 15 Barnes FM found that s 424C(1) of the Act applied because the appellant had been invited to give additional information and had not given it within the time provided. Accordingly, pursuant to ss 425(2)(c) and 425 (3) the appellant was not entitled to appear before the Tribunal. Her Honour contrasted the situation in SZBEL [2006] HCA 63 ; 231 ALR 592 to the circumstances in the case before her, observing that in the present case there was no existing obligation upon the Tribunal to invite the appellant to a hearing and to give evidence and present arguments in relation to the issues under review. Her Honour also found that it had not been established that the Tribunal made its decision on the basis of matters not obviously open on the material before it. Accordingly, no lack of procedural fairness was established and Barnes FM dismissed the application. 16 The Notice of Appeal to this Court raises two grounds as follows: 17 The appellant submitted that the Tribunal failed to take into account, when assessing his Application for Review, the fact that he had sent documents to the Tribunal on 23 August 2005. However it was pointed out to the appellant that the Tribunal's decision referred to the documents which he had forwarded and made specific reference to each of them in its decision. 21 The appellant's first ground of appeal claims that the Tribunal failed to identify to him five bases upon which it made its decision. The first basis for the Tribunal's decision which the appellant claims was not identified to him was the finding that the threat of harm to the appellant in relation to the horse theft was not related to a Convention reason. Barnes FM noted that this issue was raised at the Tribunal hearing and that the Tribunal had written to the appellant informing him that it would listen to the tapes of the first Tribunal hearing and give the appellant an opportunity to comment on that decision. It was clear that the basis for the appellant's claimed persecution was in issue: see SZBEL [2006] HCA 63 ; 231 ALR 592 at [36] . 26 It is apparent that the issues of concern to the Tribunal were made abundantly clear to the appellant by the first s 424A(1) letter and the second s 424A(1) letter. The appellant's responses to the Tribunal's invitation to comment addressed those issues. In SZBEL [2006] HCA 63 ; 231 ALR 592 which applied the decision of the Full Court of this Court in Alphaone 49 FCR 576 the Court held that a tribunal is not obliged to put to an applicant its own appraisals of the material before it unless they are not an obvious and natural appraisal of that material. The meaning of obvious and natural in this context has been considered in numerous decisions: see Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 108. In Re Minister for Immigration and Multicultural and Affairs; Ex parte S154/2002 (2003) 77 ALJR 1909 at 1923 [86] Kirby J said: The extent of the duty to indicate a relevant piece of apparently adverse evidence for comment obviously depends upon the importance that may be attached to that evidence and whether the importance was so obvious that it did not need to be underlined. In a body proceeding by inquisitorial methods, procedural fairness may require bringing the attention of the applicant to critical facts that appear to contradict, or cast doubt on, his or her claim. Where an observation about an applicant's case is one that is obvious and natural to the circumstances that evoked it, it is usually unnecessary for it to be specifically called to notice .


case_text: In SZILQ v Minister for Immigration and Citizenship [2007] FCA 942 the appellant sought a second Tribunal hearing after the Tribunal's initial decision had been quashed and the proceedings had been remitted to the Tribunal. The appellant provided material to the second Tribunal which included a testimonial from a local pastor attesting to the appellant's religious observance in Australia. The Tribunal denied the appellant's request for a further hearing. In an appeal to this Court from a decision of the Federal Magistrates Court which affirmed the Tribunal's decision to refuse to grant a protection visa to the appellant, the appellant claimed that the Tribunal had not complied with its obligations under s 425 of the Act insofar as that obligation related to the Tribunal's consideration of s 91R(3). The Court upheld the appeal, finding that the right of the appellant to satisfy his onus of proof under s 91R(3) was not afforded. At [32] the Court said: The RRT took the view, following the Full Court decision in SZEPZ, that it was not necessary to conduct a further oral hearing because, as the review was a continuing one despite the earlier decision being set aside, a hearing had already been held. However, that mistakes the nature of the obligation under s 425(1). The RRT itself found it necessary to take a further step to comply with s 424A after the earlier decision was set aside. An additional element then emerged, in respect of which the appellant had not been given an opportunity to give evidence and present arguments at an oral hearing. In those circumstances the obligations under s 425(1) were not fully met. 34 There is a further consideration. The original decision of the Tribunal, having been set aside had 'no operative effect': see SZILQ [2007] FCA 942. The reconstituted Tribunal was required to carry out its statutory functions as if the first hearing had not taken place. The Tribunal's duty required it to seek further information under s 424A(1) and in the absence of a finding in favour of the appellant was required to invite the appellant ' to appear before the Tribunal to give evidence and present arguments relating to the issuing arising in relation to the decision under review' pursuant to s 425 of the Act: see Applicant NAFF of 2002 221 CLR at [26] [27].


case_text: the Earlier Reasons, I referred (at [86]) to State Bank of New South Wales v Brown 38 ACSR 715 and Household Financial Services Pty Ltd v Chase Medical Centre Pty Ltd (1995) 18 ACSR 294. In The Australian Steel Co (Operations) Pty Ltd t/as Welded Mesh v EPS Group Pty Ltd (2007) 59 ACSR 602 Austin J referred to these cases and to Australia and New Zealand Banking Group Ltd v TJF EBC Pty Ltd (2006) 224 ALR 490 ( TJF EBC ) and identified in the following passage (at [70]) considerations to which regard should be had under s 564: As those cases point out, s 564 itself draws attention to the risk assumed by the funding creditor. It is therefore necessary to address the extent and nature of the risk that the funded recovery action will fail, and the extent of any consequent risk that the funds made available for the litigation might be irrecoverable. It appears from Spigelman CJ's judgment in the Brown case, at [40], and Brownie J's observations in the Household Financial Services case (at 296 7), that one has regard to factors including: whether the amounts involved are small; the value recovered; the size of the funding creditor's debt compared with other debts; the proportion that the funding creditor's expenditure bears to the amount recovered; whether the money advanced by the funding creditor has been refunded; whether other unsecured creditors oppose the distribution proposed to the funding creditor; whether other creditors have been given the opportunity to join in the funding and have failed to do so; and the public interest in encouraging creditors to provide indemnities so as to enable assets to be recovered. ... In TJF EBC , Barrett J gave the funding creditor an advantage by stipulating that it should receive in priority to all other creditors 80% of the funds remaining for distribution to creditors in the winding up after allowing for priority claims under s 556(1) , with the remaining 20% being paid to other creditors.


case_text: has been a difference of judicial opinion as to whether it is appropriate to extend time in a case such as the present. Orders extending time were made by Warren J (as the Chief Justice then was) in Empire (Aust) Nominees Pty Ltd (in liq) v Vince (2000) 35 ACSR 167 (see [15]-[16]) and by Gordon J in Stewart, in the matter of Newtronics Pty Ltd [2007] FCA 1375 (see [30]). However, in Re Read and Another [2007] FCA 1985 ; (2007) 164 FCR 237 ( Read ), French J (as the Chief Justice then was) expressed disagreement with the approach taken in those two cases. His Honour was of the opinion (at [32]-[39]) that s 1322(4)(d) of the Act could not be relied upon to extend time under s 477(2B). French J's reason was that s 477(2B) did not specify a "period for" the making of an application for approval under s 477(2B). I prefer not to embark on any further discussion of the two lines of authority or the making of a choice between them, and will simply make an order that if and to the extent that an extension of time is required, time is extended. For more abundant precaution, I will also give a direction under s 479(3) of the Act, as French J did in Read , that Mr Chamberlain may act on the Indemnities as if he had entered into them with the Court's prior approval. No doubt in giving approval nunc pro tunc and extending time under s 1322(4)(d) and giving a direction under s 479(3) and making a declaration under s 1322(4)(a) , I am being excessively cautious, but this does no harm. The application under s 564 of the Act Annexed to the Earlier Reasons was a summary of the receipts and payments of Mr Chamberlain as liquidator of the Company as at 15 June 2009. One day after the Earlier Reasons were delivered, the Supreme Court of New South Wales made orders by consent in the Construction List Proceeding and the Proof of Debt Interlocutory Proceeding. These included an order that RGH be admitted to prove as an unsecured creditor in the winding up of the Company in the sum of $700,000.00, and that the Company pay RGH's costs of the Construction List Proceeding agreed in the sum of $25,000.00 as an expense of the winding up. Otherwise, orders were made to the effect that the Construction List Proceeding and the Proof of Debt Interlocutory Proceeding were dismissed, all costs orders made in them were vacated, and, subject to the costs order just noted, the parties were ordered to bear their own costs of both proceedings.


case_text: has been a difference of judicial opinion as to whether it is appropriate to extend time in a case such as the present. Orders extending time were made by Warren J (as the Chief Justice then was) in Empire (Aust) Nominees Pty Ltd (in liq) v Vince (2000) 35 ACSR 167 (see [15]-[16]) and by Gordon J in Stewart, in the matter of Newtronics Pty Ltd [2007] FCA 1375 (see [30]). However, in Re Read and Another [2007] FCA 1985 ; (2007) 164 FCR 237 ( Read ), French J (as the Chief Justice then was) expressed disagreement with the approach taken in those two cases. His Honour was of the opinion (at [32]-[39]) that s 1322(4)(d) of the Act could not be relied upon to extend time under s 477(2B). French J's reason was that s 477(2B) did not specify a "period for" the making of an application for approval under s 477(2B).


case_text: the Earlier Reasons, I referred (at [86]) to State Bank of New South Wales v Brown 38 ACSR 715 and Household Financial Services Pty Ltd v Chase Medical Centre Pty Ltd (1995) 18 ACSR 294. In The Australian Steel Co (Operations) Pty Ltd t/as Welded Mesh v EPS Group Pty Ltd (2007) 59 ACSR 602 Austin J referred to these cases and to Australia and New Zealand Banking Group Ltd v TJF EBC Pty Ltd (2006) 224 ALR 490 ( TJF EBC ) and identified in the following passage (at [70]) considerations to which regard should be had under s 564: As those cases point out, s 564 itself draws attention to the risk assumed by the funding creditor. It is therefore necessary to address the extent and nature of the risk that the funded recovery action will fail, and the extent of any consequent risk that the funds made available for the litigation might be irrecoverable. It appears from Spigelman CJ's judgment in the Brown case, at [40], and Brownie J's observations in the Household Financial Services case (at 296 7), that one has regard to factors including: whether the amounts involved are small; the value recovered; the size of the funding creditor's debt compared with other debts; the proportion that the funding creditor's expenditure bears to the amount recovered; whether the money advanced by the funding creditor has been refunded; whether other unsecured creditors oppose the distribution proposed to the funding creditor; whether other creditors have been given the opportunity to join in the funding and have failed to do so; and the public interest in encouraging creditors to provide indemnities so as to enable assets to be recovered. ...


case_text: Jarbin Pty Ltd v Clutha Ltd (in liq) [2004] NSWSC 28 ; (2004) 208 ALR 242 , Campbell J noted (at 104) that an alternative approach is to give the indemnifying creditor an advantage calculated as a percentage of the investment that that creditor made in funding the litigation. His Honour noted that in assessing that percentage, one would need to take into account that the indemnifying creditor had not only a risk of losing the investment made, but also a risk of being liable to pay other expenses of the liquidator and the liquidator's solicitors, and possibly the costs of the other side. Campbell J noted (at [107]) that the funding creditor's entitlement could be compared, as a rough check, to the premium that would have been demanded by a litigation funder. RGH submits that the Transactions Proceeding, although apparently complex, was not risky. RGH submits that there is no evidence before the Court that it was considered to be risky, although I note that in para 54(b) of Mr Chamberlain's affidavit of 7 August 2009, he claims there was a significant exposure to the risk of an adverse costs order. RGH submits that the Court should infer that if evidence to that effect was available, Mr Chamberlain would have adduced it. RGH also makes the following submissions: At paras 32-37 of his written submission, Mr Docker, counsel for RGH, makes the following helpful submissions: Taking the first approach set out in [10] above [a percentage of the funds remaining after payment of priority debts and claims], an appropriate percentage of the net funds available for distribution which should be allocated for advantage to the DCT is 1/3 rd . ... The effect of this approach would be as follows: the DCT would be entitled to 1/3 rd of the total amount available, $2,027,938.06, being $675,979.35 by way of priority; the balance of the DCT's debt, being $624,294.28 ($1,300,273.63 [sic] - $675,979.35) will rank with the other unsecured debts; the total of the non priority unsecured debts will be $1,699,294.28 ($700,000 + $375,000 + $624,294.28); the total available for distribution to the non priority unsecured debts will be $1,351,958.71 ($2,027,938.06 - $675,979.35); the percentage recovery on unsecured debts will be 79.5% ($1,351,958.71/$1,699,294.28 x 100) this means that: the DCT will get a total of $1,172,293.30 ($675,979.35 + $496,313.95) which is 90.1% of its debt; RG&H will get $556,500.00, which is 79.5% of its debt; and Hardys' [sic] will get $298,125.00, which is 79.5% of their debt. If the alternative method referred to in [10] above is used [a percentage of the investment made by the indemnifying creditor in providing funding] and the priority is calculated by reference to the amount invested by the DCT, $266,286.77, the above approach is supported. That is, the DCT will be receiving in priority an amount ($675,979.35) which is more than 2½ times the amount it invested as well as being reimbursed for the amount it invested. A third way of checking the approach is by reference to what a litigation funder would have received. If the figure of 40% of the amount recovered is used (although the examples in Jarbin Pty Ltd v Clutha Ltd ... suggest the figure is often lower) the amount the DCT would receive ($1,172,293.30) exceeds 40% of the recovery of $2,600,000. The above figures do not take account of when the distributions will be made. The instalment payments add a level of complexity to the exercise. In short, the DCT should share the burden of the late payments with the other unsecured creditors. Presumably, the DCT was consulted about the settlement which resulted in the instalment regime. However, if the DCT seeks to be paid immediately, it should receive less. Assuming the creditors all share in the delay, this would mean that the current amount available for distribution would be treated as one distribution and so would each instalment payment. For example, if $1,200,000 was available for distribution now: DCT would get 1/3 rd , being $400,000, as a priority; and the other $800,000 would be distributed rateably amongst the 3 unsecured creditors in accordance with their non priority debts. In an example with $60,000, the DCT would get $20,000 as a priority and the remaining $40,000 would be distributed rateably amongst the 3 unsecured creditors in accordance with their non priority debts. Mr Dawson, counsel for Mr Chamberlain, submits that the merits based standing of the DCT as funding creditor outweighs that of RGH and the Hardys in the following respects in particular: RGH elected not to lodge a proof of debt until the settlement of the Transactions Proceeding in November 2008, immediately prior to the scheduled hearing. The DCT entered into the Indemnities in circumstances in which it was the only creditor who had lodged a proof of debt in the winding up, and it is not "just" for the purposes of s 564 to recognise the interests of RGH asserted at such a late stage over those of the DCT; as noted above, there is no evidence that RGH would have funded the Transactions Proceeding; and the Hardys, being the only other creditor, do not oppose the DCT's application. In my opinion, RGH's submissions understate the risk that was associated with the Transactions Proceeding. The pleadings are in evidence. They include a second further amended statement of claim and the separate defences of the first to sixth defendants and the seventh to twelfth defendants. The plaintiffs were the Company and Mr Chamberlain as its liquidator. The first to sixth defendants were the Hardy interests and the seventh to twelfth were the Company's accountants.


case_title: State Bank of New South Wales v Brown 38 ACSR 715


case_title: Stewart, in the matter of Newtronics Pty Ltd [2007] FCA 1375


case_title: The Australian Steel Co (Operations) Pty Ltd t/as Welded Mesh v EPS Group Pty Ltd (2007) 59 ACSR 602


case_outcome: considered

case_title: Australian Woollen Mills Ltd v FS Walton & Co Ltd [1937] HCA 51 ; (1937) 58 CLR 641

case_text: Although Exactech was fully aware no later than 3 August 2004 that Global's knee was known as an RBK, Global does not contend that Exactech adopted the RBK acronym for the purpose of appropriating to itself any part of Global's trade or reputation; cf Australian Woollen Mills Limited v FS Walton & Co Limited [1937] HCA 51 ; (1937) 58 CLR 641 at 657. 110 The date for determining whether Global has established a reputation in the name RBK is November 2005 when the first Optetrak RBK was implanted in Queensland. 111 By that date Global had taken steps to market its product to a substantial portion of the target market of about 680 surgeons in Australia. Nevertheless, the evidence of Global's reputation in the name RBK was quite scant. It consisted of seven sources.


case_title: British Sugar PLC v James Robertson & Sons Ltd [1996] RPC 281

case_text: It follows that I would need to be satisfied to a reasonably high standard that the acronym has acquired a secondary meaning amongst orthopaedic surgeons who carry out total knee replacements; Guide Dogs Owners' & Friends' Association Inc v Guide Dog Association of NSW and ACT (1998) 42 IPR 481 at 502. The acronym would need to be close to a household word for the product amongst those surgeons; British Sugar PLC v James Robertson & Sons Limited [1996] RPC 281 at 306. 137 I have already found that the evidence does not satisfy me that the RBK acronym has become so closely associated with Global's RBK as to be distinctive of that prosthesis. The same finding disposes of the claim that RBK has acquired a secondary meaning. 138 Global's submission that no other prosthetic knee was referred to in Australia by the name RBK does not advance its case. Nor does the dearth of references to that acronym in the literature or on the worldwide web.


case_text: Also, whether or not the impugned conduct constitutes misleading or deceptive conduct is a question of fact to be determined objectively in the light of all the surrounding circumstances; Taco Company of Australia Inc v Taco Bell Pty Limited (1982) 42 ALR 177 at 202; Puxu at 199, 210-211; Nike at [100]; Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2005) 212 ALR 357 at [39] .


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

case_text: The question of whether the conduct of Orthotech and Exactech is misleading or deceptive, or likely to be so, must be determined by reference to the class of prospective purchasers of the Optetrak RBK; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 199; Campomar Sociedad Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45 at 85, at [102] [103]. 141 All that needs to be reiterated before turning to the question which arises is the principle that the conduct must be determined by reference to its effect on the hypothetical ordinary or reasonable member of the class; Puxu at 199, 210-211; Nike at [102] [103]. 142 Also, whether or not the impugned conduct constitutes misleading or deceptive conduct is a question of fact to be determined objectively in the light of all the surrounding circumstances; Taco Company of Australia Inc v Taco Bell Pty Limited (1982) 42 ALR 177 at 202; Puxu at 199, 210-211; Nike at [100]; Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2005) 212 ALR 357 at [39] . 145 However, there are two short answers to this submission. First, the hypothetical reasonable purchaser is a sophisticated and experienced medical practitioner. Second, the checks and balances in the process of ordering and implanting the prosthesis are sufficient to dispel anything more than a fanciful possibility that the purchaser will be misled; cf Nike at [105]. 146 There was no dispute about the first of these propositions. The second was supported by a body of uncontroversial evidence. The evidence as to the checks and balances may be summarised as follows. 147 First, it is plain that the suppliers of knee prostheses market their products to the surgeons who implant prosthetic knees. They do so in face to face meetings so that, as a consequence, the suppliers' representatives develop a personal relationship with the surgeons.


case_text: However, even if the acronym RBK is descriptive, its use by another trader may, upon a consideration of all the circumstances, amount to misleading conduct if the acronym has acquired a secondary meaning so as to be distinctive of Global's product; Equity Access Pty Ltd v Westpac Banking Corporation (1989) 16 IPR 431 at 447. 8 Importantly, Global accepts that whether or not RBK is descriptive, it cannot succeed in these proceedings unless it establishes that the acronym RBK is distinctive of its product. That is the essential issue in these proceedings. 9 In Equity Access , Hill J said at 448 that the distinction between descriptive and fancy names is not black and white; rather, there is a continuum. Thus, if the name RBK is closer along the continuum toward descriptive names, the heavier the onus will be upon Global to establish a secondary meaning. Also, small differences in other names will usually be adequate to avoid confusion; Hornsby Building at 229; Equity Access at 448. 135 Moreover, it seems to me that the acronym RBK, as used in the target market of orthopaedic surgeons, is, at very least a long way toward the descriptive end of the continuum to which Hill J referred in Equity Access. I make that finding based upon the practice of using acronyms in the medical profession and upon the basis of the evidence of Drs Morris, Caldwell and Morgan as to their recognition of the RBK label. 159 At most, the position seems to me to be analogous to that which was described as temporary and commercially irrelevant confusion by Lockhart J in Lumley Life Limited v 1OOF of Victoria Friendly Society (1989) 16 IPR 316 at 323-324. This does not constitute misleading conduct; see also Equity Access at 449.


case_title: Guide Dog Owners' & Friends' Association Inc v Guide Dog Association of NSW and ACT (1998) 42 IPR 41


case_title: Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd [1978] HCA 11 ; (1978) 140 CLR 216

case_text: It is well established that, ordinarily, the use of a descriptive trade name ensures that it is not distinctive of a business and that its application to other like businesses will not ordinarily mislead the public; Hornsby Building Information Centre Pty Limited v Sydney Building Information Centre Limited [1978] HCA 11 ; (1978) 140 CLR 216 at 229. 9 In Equity Access , Hill J said at 448 that the distinction between descriptive and fancy names is not black and white; rather, there is a continuum. Thus, if the name RBK is closer along the continuum toward descriptive names, the heavier the onus will be upon Global to establish a secondary meaning. Also, small differences in other names will usually be adequate to avoid confusion; Hornsby Building at 229; Equity Access at 448.


case_title: Lumley Life Ltd v 1OOF of Victoria Friendly Society (1989) 16 IPR 316

case_text: At most, the position seems to me to be analogous to that which was described as temporary and commercially irrelevant confusion by Lockhart J in Lumley Life Limited v 1OOF of Victoria Friendly Society (1989) 16 IPR 316 at 323-324. This does not constitute misleading conduct; see also Equity Access at 449.


case_title: Medical Benefits Fund of Australia Ltd v Cassidy [2003] FCAFC 289 ; (2004) 205 ALR 402

case_text: Global submitted that whether a representation is misleading or deceptive (or likely to be so) depends on the circumstances in which it is made, not on what might happen at a future point of time; Medical Benefits Fund of Australia Limited v Cassidy [2003] FCAFC 289 ; (2004) 205 ALR 402 at [43] . 158 I do not consider those observations to be in point. The procedures to which I have referred in the hospital ordering and implanting process are concerned with the detection of errors rather than the correction of misleading or deceptive conduct.


case_text: The question of whether the conduct of Orthotech and Exactech is misleading or deceptive, or likely to be so, must be determined by reference to the class of prospective purchasers of the Optetrak RBK; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 199; Campomar Sociedad Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45 at 85, at [102] [103]. 16 Prosthetic knees are purchased by orthopaedic surgeons specialising in knee replacements and by the purchasing departments of hospitals. The nature of the market and the way in which prosthetic knees are ordered and implanted require close consideration. This is because the whole of the circumstances must be looked at in order to determine whether the impugned conduct is misleading or deceptive; Puxu at 199. 17 Mr Michael Ribot has had a long history of involvement in the distribution of orthopaedic products. His experience dates back to at least 1981. 18 In about 1990, Mr Ribot started distributing orthopaedic products for DePuy Inc, a leading international orthopaedic product supplier, which is now owned by Johnson & Johnson, Inc. 141 All that needs to be reiterated before turning to the question which arises is the principle that the conduct must be determined by reference to its effect on the hypothetical ordinary or reasonable member of the class; Puxu at 199, 210-211; Nike at [102] [103]. 142 Also, whether or not the impugned conduct constitutes misleading or deceptive conduct is a question of fact to be determined objectively in the light of all the surrounding circumstances; Taco Company of Australia Inc v Taco Bell Pty Limited (1982) 42 ALR 177 at 202; Puxu at 199, 210-211; Nike at [100]; Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2005) 212 ALR 357 at [39] . 148 Second, the decision to purchase a knee prosthesis is likely to be a carefully considered one having regard to the cost of the prosthesis, which is in the order of $7,000; Puxu at 211. 149 Third, as a matter of professional practice, a surgeon is likely to take care in the selection of the prosthesis. The considerations to which Dr Breit referred in the passage set out at [99] above, demonstrates the close involvement of the surgeon in the decision making process. 150 Fourth, surgeons tend to have a preferred brand of prosthesis. Dr Breit's observations point to the care which would be taken in a decision to switch brands.


case_title: Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177


case_text: In Short v F W Hercus Pty Ltd (1993) 40 FCR 511, Burchett J said (at 518): 'The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read.' I also refer to, without repeating, the observations of French J in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [50]-[57].


case_title: Fetz v Qantas Airways (1997) 77 IR 443

case_text: The Industrial Relations Commission of South Australia in Zajaczkowski v Podean Electronic Industries Pty Ltd (No 4) (1996) 69 IR 307 discussed the common law distinction between contracts of apprenticeship and contracts of service. The distinctive features of a contract of apprenticeship were discussed by Vice President Ross in Fetz v Qantas Airways (1997) 77 IR 443 at 454 and by the Full Bench of the Commission on appeal ( Qantas Airways v Fetz (1998) 84 IR 52 at 65-66).


case_title: George A Bond and Co Ltd (In Liq) v McKenzie [1929] AR (NSW) 498

case_text: In George A Bond and Co Ltd (In Liquidation) v McKenzie [1929] AR (NSW) 498, Street J said (at 503-504): 'Now speaking generally, awards are to be interpreted as any other enactment is interpreted. They lay down the law affecting employers and employees in their relations as such, and they have to be obeyed to the same extent as any other statutory enactment. But at the same time, it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result, as this award in fact did, from an agreement between parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore, in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award.'


case_title: Master Builders Association (Vic) v Australian Building Construction Employees' and Builders' Labourers' Federation (1981) 35 ALR 284

case_text: Secondly, and this is perhaps no more than a development of the first matter, the travel patterns allowance is payable irrespective of whether in fact the worker incurs additional expense or suffers inconvenience. Under cl 38.1.2 a fixed amount is payable per day and the amount is not calculated by reference to how far a worker must travel. Of a broadly similar clause, the Full Court of this Court said in Master Builders Association of Victoria v Australian Building Construction Employees and Builders' Labourers' Federation (1981) 35 ALR 284 (' Master Builders Association ') at 289: 'Under cl 16.1 each employee is entitled to what is described as a "fares allowance", but the justification for the payment of that allowance is stated to be: "... for travel patterns and costs peculiar to the industry which include mobility requirements on employees and the nature of employment on construction work." The fares allowance is determined at a fixed amount per day and is to be paid irrespective of whether the employee incurs any expense in travelling between his home and his particular place of work and return. An employee whose home is alongside his then place of work is just as entitled to be paid the fares allowance as an employee who may be forced to travel many kilometres at great expense from his home to his place of work.' 38 Thirdly, the travel patterns allowance is payable when a worker is employed on 'work' and the case turns, or largely turns, on the meaning to be attributed to the word work in this context. The word is used not only in cl 38.1.2 of the award but also in cl 38.10.1. 39 It seems to me that although the matter is not clear, the terms of the award support the interpretation advanced by the respondent, namely, that apprentices attending trade school are not entitled to the travel patterns allowance. I say that for two reasons. First, if one has regard to the purpose of the travel patterns allowance, the payment of the allowance to a worker who attends trade school does not seem to be within that purpose. In the case of trade school, the location of the place the worker is required to attend does not vary. I think that point holds good even though I recognise that the allowance itself is not calculated by reference to actual cost incurred or inconvenience suffered. Secondly, although the meaning of the word 'work' will vary, depending on the context, I do not think that one would ordinarily consider that an apprentice attending trade school was employed on 'work'.