case_text: If her Honour's order is a final order, the court must be satisfied that special reasons have been made out in order to grant leave to file and serve a notice of appeal out of time. The expression 'special reasons' describes a flexible discretionary power conferred upon the court in those cases where some distinguishing or differentiating feature about the case justifies departure from the orthodoxy of filing and serving a notice of appeal within the time expressly limited by the rules. The flexibility of the discretion conditioned by the interests of justice is not constrained in its amplitude by any narrow approach to the expression ( Jess v Scott and Others (1986) 12 FCR 187 at 195 per Lockhart, Sheppard and Burchett JJ). Nevertheless, an applicant seeking leave must demonstrate some feature about the case which persuasively warrants departure from the orthodox position (see also Jess v Scott per The Court at 195). 35 In this case, however, Mr Rogers has sought to bring an application within Order 52, rule 15(1)(b). In other words, Mr Rogers has made an application within 21 days of pronouncement of the judgment by which Mr Rogers seeks further time or an extension of time to file and serve a notice of appeal. Order 52, rule 15(1)(b) does not in terms require an applicant to demonstrate 'special reasons' in seeking an allowance of further time by the court. The reference in Order 52, rule 15(2) to 'notwithstanding anything in the preceding sub-rule', is intended to make clear that the scope of the discretion is not in any way limited by the terms of Order 52, rule 15(1). It seems to me that an application made within 21 days of the date of pronouncement of judgment by which an applicant seeks further time for the filing and serving of a notice of appeal is not to be subsumed within a requirement to establish special reasons as if an application had been made beyond the 21 day period at the outset. 36 Nevertheless, there must be some demonstrated circumstances upon which the court might act in allowing further time. The particular circumstance advanced by Mr Rogers is that during the period between pronouncement of the judgment and the hearing of this application in February 2007, Mr Rogers has not been in a position to prepare a notice of appeal and therefore he proceeded on the footing that an application ought to be made within 21 days seeking an extension of time within which to prepare, file and serve a notice of appeal. At the date of filing the application (15 December 2006), Mr Rogers anticipated that he would be in a position by 22 January 2007 to have obtained advice and formulated, filed and served a notice of appeal. 37 Because the application was listed for determination in February 2007, Mr Rogers has not taken steps to prepare a notice of appeal by 22 January 2007 or at all. Rather, Mr Rogers seeks to identify by oral submissions grounds going to an arguable error on the part of her Honour, secure an allowance for such further time as the court determines and then file and serve a notice of appeal within such time as might be allowed. 38 I propose to determine the application on the following basis.


case_outcome: cited

case_text: The statement of claim fails to plead facts which establish the service supplied or to be supplied by the corporate respondents for the purposes of s 60 of the TPA; the conduct on the part of the relevant respondents 'in connection with' that supply or possible supply relied upon by the applicant; the price of the relevant services; or any facts that establish supply or possible supply to the applicant as a consumer for the purposes of s 4B(1)(b) of the TPA (see generally Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 114 FCR 427 [44] [66], per Hill J). Moreover, if the services relied upon by Mr Rogers for the purposes of s 60 of the TPA are financial services as the pleading seems to suggest, s 51AF(1) provides that Part V of the Act within which s 60 falls 'does not apply to the supply, or possible supply, of services that are financial services' . The relevant statutory instrument regulating financial services is the Australian Securities and Investments Commission Act 2001 (Cth). In addition, the statement of claim does not assert a claim for damages pursuant to s 82 of the TPA in reliance upon a contravention of s 60 and the reference to s 87(1D) relates to a contravention of a provision of Part IVA and not Part V. 45 The applicant fails to plead facts that demonstrate a claim to recover damages or compensation for personal injury, stress, anxiety or wrong done to Mr Rogers arising out of the contravening conduct. Rather, the claim asserts harassment and coercion as a fact. The true character of the claim and its relationship with s 116(2)(g) of the Bankruptcy Act is not pleaded and nor is any particularisation given of the estimated quantum of the claim, that is, $45 million. In truth, Mr Rogers seeks to recover the lost value of the rights and entitlements he says he ought to have enjoyed by reason of the fulfilment of the promises of the relevant respondents in respect of each of the various property transactions pleaded in the statement of claim. Any such claim is vested in the trustee of the estate of Mr Rogers. 46 A contravention of s 60 of the TPA is the only cause of action relied upon by the applicant as the foundation 'right of the bankrupt' for the purposes of s 116(2)(g) of the Bankruptcy Act .


case_text: The question seems to be whether any part of the damages arising out of the contravention are to be estimated by immediate reference to pain felt by the bankrupt in respect of his mind, body or character and without reference to his rights of property. In Cox v Journeaux (No. 2) [1935] HCA 48 ; (1935) 52 CLR 713 at 721, Sir Owen Dixon in formulating the accepted test had regard to the test formulated in similar terms by Earle J in Beckham v Drake (1849) 2 HLC 579 at 604 although Earle J adopted a qualification on the estimation of the damages by use of the phrase 'and without immediate reference to his rights of property' whereas Dixon J qualified the estimation of the damages by reference to the phrase 'and without reference to his rights of property' . 54 In Mannigel v Hewlett Phelps BC9101907 , the Full Court of the Supreme Court of New South Wales considered a claim by two bankrupt appellants against their solicitors for damages for physical and mental stress said to arise out of the negligence of the solicitor's conduct in connection with a property transaction. The claimants admitted that the damages although to be estimated by reference to physical and mental stress and anxiety were 'a consequence of' the economic loss they suffered arising out of the conduct of the transaction. The Full Court in reliance upon Daemar v Industrial Commission of New South Wales & Ors (1988) 79 ALR 591 concluded that because the claims were consequential upon alleged breaches of duty owed by the solicitors in relation to the purchase of the land, the claims for distress and injury to the physical and mental health of the claimants were not claims 'without reference to their rights of property' as contemplated by Dixon J in Cox v Journeaux (No. 2) (supra). 55 Damages for anxiety or stress may, however, be consequential but severable in the sense of being capable of estimation without regard in the estimation , to the bankrupt's rights of property. The claim by Major Wilson considered by Dixon J was emblematic of a consequential but severable claim which was capable of agitation by the bankrupt. If the damages are capable of estimation in such a way and are capable of being understood as severable from any claim on behalf of the trustee, it seems to me that the decision of the Full Court of the Federal Court of Australia in Bryant v Commonwealth Bank of Australia applying Cox v Journeaux (No. 2) contemplates that such a claim resides with the bankrupt even though it may be properly described as a consequential claim.


case_title: Beckham v Drake (1849) 2 HLC 579

case_text: The question seems to be whether any part of the damages arising out of the contravention are to be estimated by immediate reference to pain felt by the bankrupt in respect of his mind, body or character and without reference to his rights of property. In Cox v Journeaux (No. 2) [1935] HCA 48 ; (1935) 52 CLR 713 at 721, Sir Owen Dixon in formulating the accepted test had regard to the test formulated in similar terms by Earle J in Beckham v Drake (1849) 2 HLC 579 at 604 although Earle J adopted a qualification on the estimation of the damages by use of the phrase 'and without immediate reference to his rights of property' whereas Dixon J qualified the estimation of the damages by reference to the phrase 'and without reference to his rights of property' .


case_text: Accordingly, if the estimation of any part of the damages claimed by the bankrupt involves a reference to the bankrupt's rights of property, the common law exception adopted in the Bankruptcy Act and reflected in s 116(2)(g) , may not be enlivened. His Honour Dixon J also had regard to the decision of the House in Wilson v United Counties Bank Ltd (1920) AC 102 in which a bankrupt claimant, Major Wilson, was held entitled to maintain a claim for damages for defamation (personal injury to his credit and reputation) by reason of the bank's negligent management of Major Wilson's financial affairs whilst he was out of England engaged in war service during the course of the 1 st World War. That claim arose out of the same cause of action vested in the trustee of Major Wilson who properly maintained a claim for the benefit of the creditors for damages for economic loss due to the negligent management of Major Wilson's financial affairs.


case_title: Faulkner v Bluett (1981) 52 FLR 115

case_text: In Faulkner v Bluett (1981) 52 FLR 115, Lockhart J described the common thread running through the cases as establishing a proposition that where the primary and substantial right of action is direct pecuniary loss to the property or the estate of the bankrupt, the right to sue passes to the trustee. In that case, Lockhart J also concluded that any damages to which the applicant may be entitled would be ' estimated ' by ' immediate reference to her rights of property and not to pain felt by her in respect of her body, mind or character' [emphasis added]. In Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545, O'Loughlin and Merkel JJ described the exemption as 'limited to those cases where it has been considered appropriate to sever the personal interests of the person subsequently made bankrupt from his property and to reserve to him the prosecution of and benefits derived from such litigation as not being legitimately entitlements of the creditors' [emphasis added].


case_text: In Faulkner v Bluett (1981) 52 FLR 115, Lockhart J described the common thread running through the cases as establishing a proposition that where the primary and substantial right of action is direct pecuniary loss to the property or the estate of the bankrupt, the right to sue passes to the trustee. In that case, Lockhart J also concluded that any damages to which the applicant may be entitled would be ' estimated ' by ' immediate reference to her rights of property and not to pain felt by her in respect of her body, mind or character' [emphasis added]. In Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545, O'Loughlin and Merkel JJ described the exemption as 'limited to those cases where it has been considered appropriate to sever the personal interests of the person subsequently made bankrupt from his property and to reserve to him the prosecution of and benefits derived from such litigation as not being legitimately entitlements of the creditors' [emphasis added]. 55 Damages for anxiety or stress may, however, be consequential but severable in the sense of being capable of estimation without regard in the estimation , to the bankrupt's rights of property. The claim by Major Wilson considered by Dixon J was emblematic of a consequential but severable claim which was capable of agitation by the bankrupt. If the damages are capable of estimation in such a way and are capable of being understood as severable from any claim on behalf of the trustee, it seems to me that the decision of the Full Court of the Federal Court of Australia in Bryant v Commonwealth Bank of Australia applying Cox v Journeaux (No. 2) contemplates that such a claim resides with the bankrupt even though it may be properly described as a consequential claim.


case_title: Mannigel v Hewlett Phelps BC9101907

case_text: In Mannigel v Hewlett Phelps BC9101907 , the Full Court of the Supreme Court of New South Wales considered a claim by two bankrupt appellants against their solicitors for damages for physical and mental stress said to arise out of the negligence of the solicitor's conduct in connection with a property transaction. The claimants admitted that the damages although to be estimated by reference to physical and mental stress and anxiety were 'a consequence of' the economic loss they suffered arising out of the conduct of the transaction. The Full Court in reliance upon Daemar v Industrial Commission of New South Wales & Ors (1988) 79 ALR 591 concluded that because the claims were consequential upon alleged breaches of duty owed by the solicitors in relation to the purchase of the land, the claims for distress and injury to the physical and mental health of the claimants were not claims 'without reference to their rights of property' as contemplated by Dixon J in Cox v Journeaux (No. 2) (supra).


case_title: Daemar v Industrial Commission of New South Wales & Ors (1988) 79 ALR 591


case_text: The further question is whether her Honour arguably erred in refusing leave to deliver a further further further amended statement of claim wholly re-pleading any claim in respect of which Mr Rogers might demonstrate standing and whether her Honour arguably erred in dismissing the proceedings pursuant to s 31A of the Act and also in reliance upon Order 20, rule 2 of the Federal Court Rules . Recently, French J in Fortron Automotive Treatments Pty Ltd v Jones (No. 2) (2006) FCA 1401 observed that s 31A is not a vehicle for simply striking out parts of a pleading that are deficient. His Honour observed that alternative remedies arise under the Federal Court Rules to deal with deficient pleadings and that, in principle, recourse ought not to be had to s 31A of the Act which deals with entering summary 'judgment' in 'a proceeding'. His Honour, in consequence, respectfully disagreed with the approach adopted by Heerey J in Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 in which Heerey J observed that s 31A of the Act was introduced to establish a lower standard for 'strike outs'. The question, relevantly in this case, the court asks, for the purposes of s 31A of the Act, is whether it can be satisfied that the applicant in the proceeding has no reasonable prospect of successfully prosecuting the proceeding. That state of satisfaction will rarely be achieved (except in the most transparent of cases) on the strength of a conclusion that the applicant's statement of claim is deficient either in whole or in part because, as French J observes, leave to re-plead might reveal material facts within a properly identified legal framework that, upon proof, gives rise to a recognised remedy.


case_title: Duncan v Lipscombe Child Care Services Inc [2006] FCA 458


case_text: Order 20, rule 2 contemplates that a proceeding may be stayed or dismissed generally in circumstances where the court is satisfied that the proceeding discloses no reasonable cause of action; the proceeding is frivolous or vexatious; or the proceeding is an abuse of the process of the court. In reaching the relevant state of satisfaction, the court will examine the claims and allegations of the applicant to determine whether the contentions are so clearly untenable that they cannot possibly succeed in the sense contemplated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 130 recognising that the principles stated by the Chief Justice ought not to be given 'canonical force' ( Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 ; (2006) 227 ALR 425 at 437, per Gleason CJ, Gummow, Hayne and Crennan JJ) and the test to be applied by the court is whether the court can be satisfied of a 'high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way' ( Agar v Hyde [2000] HCA 41 ; (2000) 201 CLR 552 at 575-6 [57] per Gaudron, McHugh, Gummow and Hayne JJ) in determining whether the issues in the proceeding should be decided 'in a summary way' .


case_title: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 ; (2006) 227 ALR 425


case_text: Having regard to all of those matters, it seems to me that no arguable error on the part of her Honour has been identified in the making of an order pursuant to s 31A of the Act in dismissing the proceedings. Perhaps the test in determining a reasonable prospect of successful prosecution of a proceeding is whether there is a demonstrated 'real (as opposed to fanciful) issue of fact to be decided' ( Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 , per Rares J [31] [48]). However, the 'real issue of fact' must be framed within a comprehensible cause of action (in respect of which the applicant has standing) so that findings of fact in favour of the applicant give rise to a recognised remedy . 65 Accordingly, the application before me for an extension of time in which to file and serve a notice of appeal from the judgment of her Honour Justice Collier given on 7 and 11 December 2006 must be dismissed with costs. I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate: Dated: 23 February 2007 Counsel for the Applicant: Applicant - Self Represented Solicitor for the Applicant: Applicant - Self Represented Counsel for the Respondents: Mr C D Coulsen Solicitor for the Respondents: Whittle Lawyers Date of Hearing: 6 February 2007 Date of Judgment: 23 February 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/195.html


case_text: On 16 January 2006 I delivered judgment discharging the examination summons and quashing the decision made by ASIC on 3 August 2005. ASIC and Highstoke were directed to pay the costs of the judicial review proceedings. Costs were reserved until today on the application to discharge the summons. The parties were given an opportunity to make submissions as to the costs in the Examination Proceedings Highstoke Pty Ltd v Hayes Knight GTO Pty Ltd [2007] FCA 13. 6 Hayes Knight seeks an order that ASIC pay two-thirds of its costs in the Examination Proceedings from 8 February 2006, which was the date upon which ASIC intervened. Its submissions were, in substance, as set out at par 15, listing circumstances which it said weighed heavily in favour of an order that ASIC pay two-thirds of its costs in relation to the constitutional matter: '(a) ASIC's charter, under s 1(2) of the Australian Securities and Investments Commission Act 2001 (Cth), is to duly and properly administer the laws conferring functions and powers on it; (b) this proceeding, and WAD 281 of 2005 , arose as a result of ASIC having improperly exercised the powers conferred on it; (c) ASIC elected to intervene in this proceeding under s 1330(1) of the [Corporations Act], and by virtue of s 1330(2) of the [Corporations Act] is taken to be a party with all the duties and liabilities of a party; (d) the interpretation of the [Corporations Act] is a matter of public importance and as ASIC is charged with administering the legislation, it was appropriate for ASIC to intervene under s 1330(1) of the [Corporations Act]. However, parliament has seen fit to impose on ASIC, by s 1330(2) of the [Corporations Act], the usual liabilities of a party (including costs) as a consequence of intervening under s 1330(1) of the [Corporations Act]; (e) ASIC aggressively defended its position generally. In this regard: (i) the Respondents' first submissions on the constitutional matter dated 4 April 2006 set out the legal argument on the constitutional matter in 8 paragraphs (at [16] to [23]; (ii) ASIC's submissions filed on 2 May 2006 raised detailed arguments concerning the construction of s 596A of the [Corporations Act], as well as detailed arguments on the constitutional validity of the proposed examination; and (iii) ASIC filed supplementary submissions on 18 May 2006; (f) ASIC contentions have been held to be incorrect; (g) ASIC's involvement in this proceeding caused the Respondent to incur substantial, additional costs in responding to ASIC's submissions and additional hearing time; and (h) the Respondents were entirely successful' 7 Highstoke, seeking to spread the burden of the costs in the Examination Proceedings, submits that ASIC and itself should be ordered to pay them, in effect, jointly and severally. It submits that if there is any differentiation to be drawn then ASIC should bear two-fifths of the costs and Highstoke three-fifths. Highstoke, in effect, accepts that any costs order, as against ASIC, should apply to costs incurred after 8 February 2006, the date of ASIC's intervention.


case_outcome: applied

case_text: Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 3) [2006] FCA 386 (7 April 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here:   AustLII >> Databases >> Federal Court of Australia >> 2006 >> [2006] FCA 386 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 3) [2006] FCA 386 (7 April 2006) Last Updated: 7 April 2006 FEDERAL COURT OF AUSTRALIA Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 3) [2006] FCA 386 EVIDENCE hearsay market research reports whether received as proof of truth of contents whether discretion under s 136 of Evidence Act should be exercised Evidence Act 1995 (Cth) ss 9 , 60 , 77 , 136 Lee v The Queen [1998] HCA 60 ; (1998) 195 CLR 594 applied Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 cited Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 2) [2006] FCA 364 cited Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 378, 382 applied Ligertwood, Australian Evidence , 4 th ed, 2004, at 495 Australian Law Reform Commission Report 102 at 7.96, 10.147 CADBURY SCHWEPPES PTY LTD v DARRELL LEA CHOCOLATE SHOPS PTY LTD (NO 3) NO. VID 555 OF 2005 HEEREY J 7 APRIL 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY NO. VID 555 of 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE OF RULING: 7 APRIL 2006 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: The documents produced by the applicant's witnesses referred to in these reasons are not received as proof of the truth of their contents. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY NO. VID 555 of 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE: 7 APRIL 2006 PLACE: MELBOURNE RULING 1 The applicant Cadbury Schweppes Pty Ltd (Cadbury) has brought this proceeding against the respondent Darrell Lea Chocolate Shops Pty Ltd (Darrell Lea) alleging contravention of ss 52 , 53 (c) and 53 (d) of the Trade Practices Act 1974 (Cth) and passing off constituted by Darrell Lea's use in its chocolate confectionary business of "the colour Cadbury purple or any colour bearing a striking and obvious likeness to the colour Cadbury purple". 3 Whether right or wrong, I think it is clear that that is the basis on which I admitted the documents. Nevertheless some uncertainty has arisen. Accordingly further argument took place in which, amongst other things, more informative reference was made to s 60 of the Evidence Act 1995 (Cth) (the Act) and its application by the High Court in Lee v The Queen [1998] HCA 60 ; (1998) 195 CLR 594. 4 The documents in question are: Witness Document no, title and date A J Nowicki 23 FrontLine Research 2002 G R K Slater 13 Elliott & Shanahan Research to Cadbury 10 November 1992 14 Elliott & Shanahan Report December 1992 15 Elliott & Shanahan Report 1993 34 Beveridge & Cummings CDM Research Report May 1996 M J Busuttil 6 FrontLine Research De-brief 2001 Research De-brief September 2001 8 CDM Brand Architecture Research De-brief June 2002 10 Frontline Masterbrand Packaging Research September 2002 11 RIQ Report December 2002 15 Research paper Jigsaw stage one February 2003 26 Engagement Sue Cummings Research September 2002 27 Sue Cummings Research Report September 2002 R N Heath 2 Sue Cummings Global Packaging Report May 1998 5 Senior counsel for Darrell Lea categorized the representations made in these documents in terms which seem to me a fair summary. He said they contain: • Assertions as to facts made by the authors, eg as to inquiries the authors have made or things they have done in the preparation of the document; • Assertions of opinion on the part of the authors, ie their conclusions based on what they may have seen or observed; and • Assertions as to representations that have been made by third parties, such as participants in consumer surveys and focus groups, and that have been recorded in the document by the authors. For example, in the last-mentioned report there are reported statements in relation to Cadbury's peppermint chocolate "The green ooze is coming out" and "The green writing that says peppermint you usually associate green with peppermint". 12 In Lee the appellant had been convicted on a charge of armed assault with intent to rob Mrs Patricia Jones, the owner of a video store in Paddington. Lee and another man came into her shop. One of them produced a gun and demanded money. In an episode no less dramatic than scenes in some of her videos, Mrs Jones threw a cast iron tape dispenser at the man with the gun, picked up the stool on which she had been sitting and jabbed at him across the counter. The gun discharged. The man who had fired the gun picked up the cash register but Mrs Jones hit him again with the stool. The men fled empty-handed. 13 Shortly afterwards police officers saw Lee and another man, one Romeo Calin, in Kings Cross Road. The police arrested both men. Calin told the police, both orally and in a written statement, that he had seen Lee (although he did not know his name) and asked him to repay an $80 debt. He said Lee was walking fast and was sweaty. He also told the police that Lee had said to him: "Don't bother me. I have just done a job. I fired two shots. The other guy bailed out." The police allowed Calin to go home, presumably being satisfied he was not Lee's accomplice. 14 When called as a witness at the trial, Calin said that he could not recall any conversation with Lee apart from a request to repay the debt. The prosecution was given leave to cross-examine him about his statement. In the High Court's view at [12] the trial judge's charge to the jury would have been understood as an instruction that if they were satisfied that Lee had said those words to Calin, they were a confession by Lee. 26 Senior counsel for Cadbury submitted that Lee is not explicable on the basis of secondhand, or double, hearsay. He said that the true key to the case was to be found in [29] of the judgment (quoted at [20] above). The representation in Lee was not one that a certain thing had happened, but rather that someone had said it had happened. 27 With respect, I do not agree with this reading of Lee . As appears above, their Honours make it clear that, quite apart from the asserted truth basis, secondhand hearsay per se is not admissible under s 60: see also Ligertwood, Australian Evidence , 4 th ed, 2004, at 495. In a recent joint report on the Act published in December 2005, the Australian Law Reform Commission, in association with the New South Wales and Victorian Law Reform Commissions and after a consultative relationship with law reform bodies in Tasmania, the Northern Territory, Western Australia and Queensland, appears to accept (albeit reluctantly, and with a recommendation for change) that Lee decides that secondhand and more remote hearsay does not fall within s 60: ALRC Report 102, NSWLR Report 112, VLRC Final Report at 7.96, 10.147. 28 Where A in evidence states what B has said out of court that C has said to him (B), if B's intention to assert the truth of C's statement is the sole criterion then the result presumably will turn on the court's finding as to the subjective intention of B. Members of the general populace, unburdened with the laws of evidence, will often assert the truth of something said to them, just as often they will pass on something said for what it is worth. To hypothesise a variation on the facts of Lee , what if Calin was not just a casual acquaintance and creditor of Lee but a close criminal companion of long standing. In the light of that Calin believed, and had every reason to believe, that Lee was telling the truth when he said that he had "done a job". It was the sort of thing which, to Calin's knowledge, Lee habitually did. The hypothetical Calin, unlike the real life Calin, was convinced that Lee had committed the crime; he told the police as much and provided convincing detailed reasons. In other words, Calin asserted to the police that what Lee had told him was true. Would the confession by Lee to Calin have been admissible as truth of its contents? On the asserted truth basis of Lee perhaps yes, but on the secondhand hearsay basis, no. 29 Moreover, where A tenders evidence of a statement out of court by B as to what C had said, and if what C said is admissible if B intended to assert the truth of it, then if C had said what D had said what E had said, E's statement would be admissible as truth of its contents as long as there was an assertion of intention to convey truth by everybody along the chain. 30 I think therefore that the safer ground on which to decide the issue in the present case is that what various study participants (the equivalent of Lee) said to the authors of the reports (the equivalent of Calin) given to the Cadbury officers (the equivalent of the police) is inadmissable as being secondhand hearsay.


case_text: Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 3) [2006] FCA 386 (7 April 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here:   AustLII >> Databases >> Federal Court of Australia >> 2006 >> [2006] FCA 386 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 3) [2006] FCA 386 (7 April 2006) Last Updated: 7 April 2006 FEDERAL COURT OF AUSTRALIA Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 3) [2006] FCA 386 EVIDENCE hearsay market research reports whether received as proof of truth of contents whether discretion under s 136 of Evidence Act should be exercised Evidence Act 1995 (Cth) ss 9 , 60 , 77 , 136 Lee v The Queen [1998] HCA 60 ; (1998) 195 CLR 594 applied Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 cited Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 2) [2006] FCA 364 cited Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 378, 382 applied Ligertwood, Australian Evidence , 4 th ed, 2004, at 495 Australian Law Reform Commission Report 102 at 7.96, 10.147 CADBURY SCHWEPPES PTY LTD v DARRELL LEA CHOCOLATE SHOPS PTY LTD (NO 3) NO. VID 555 OF 2005 HEEREY J 7 APRIL 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY NO. VID 555 of 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE OF RULING: 7 APRIL 2006 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: The documents produced by the applicant's witnesses referred to in these reasons are not received as proof of the truth of their contents. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY NO. VID 555 of 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE: 7 APRIL 2006 PLACE: MELBOURNE RULING 1 The applicant Cadbury Schweppes Pty Ltd (Cadbury) has brought this proceeding against the respondent Darrell Lea Chocolate Shops Pty Ltd (Darrell Lea) alleging contravention of ss 52 , 53 (c) and 53 (d) of the Trade Practices Act 1974 (Cth) and passing off constituted by Darrell Lea's use in its chocolate confectionary business of "the colour Cadbury purple or any colour bearing a striking and obvious likeness to the colour Cadbury purple". 31 To the extent that the documents express opinions of the authors about consumer behaviour I think they are inadmissible, or alternatively would be rejected under s 135 , for the reasons given in my ruling on Dr Gibbs' evidence: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363. If Dr Gibbs' direct opinion evidence is not admissible, still less could hearsay opinions of the same kind be received.


case_text: Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 3) [2006] FCA 386 (7 April 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here:   AustLII >> Databases >> Federal Court of Australia >> 2006 >> [2006] FCA 386 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 3) [2006] FCA 386 (7 April 2006) Last Updated: 7 April 2006 FEDERAL COURT OF AUSTRALIA Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 3) [2006] FCA 386 EVIDENCE hearsay market research reports whether received as proof of truth of contents whether discretion under s 136 of Evidence Act should be exercised Evidence Act 1995 (Cth) ss 9 , 60 , 77 , 136 Lee v The Queen [1998] HCA 60 ; (1998) 195 CLR 594 applied Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 cited Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 2) [2006] FCA 364 cited Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 378, 382 applied Ligertwood, Australian Evidence , 4 th ed, 2004, at 495 Australian Law Reform Commission Report 102 at 7.96, 10.147 CADBURY SCHWEPPES PTY LTD v DARRELL LEA CHOCOLATE SHOPS PTY LTD (NO 3) NO. VID 555 OF 2005 HEEREY J 7 APRIL 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY NO. VID 555 of 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE OF RULING: 7 APRIL 2006 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: The documents produced by the applicant's witnesses referred to in these reasons are not received as proof of the truth of their contents. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY NO. VID 555 of 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE: 7 APRIL 2006 PLACE: MELBOURNE RULING 1 The applicant Cadbury Schweppes Pty Ltd (Cadbury) has brought this proceeding against the respondent Darrell Lea Chocolate Shops Pty Ltd (Darrell Lea) alleging contravention of ss 52 , 53 (c) and 53 (d) of the Trade Practices Act 1974 (Cth) and passing off constituted by Darrell Lea's use in its chocolate confectionary business of "the colour Cadbury purple or any colour bearing a striking and obvious likeness to the colour Cadbury purple". 32 In any event, I would if necessary exercise the discretion under s 136 to limit the use of the documents to evidence of the fact that they were relied on by Cadbury. The documents in question can be contrasted with the evidence of another Cadbury witness, Ms Caroline Shelton, who conducted a survey of persons' reactions to various colours associated with chocolate. Her evidence was admitted over Darrrell Lea's objection: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 2) [2006] FCA 364. Ms Shelton was cross-examined, as was Professor Layton who had designed the methodology. The strengths and weaknesses of the survey were explored in evidence and can form the basis of rational submissions by the parties. By contrast, with the documents in question there is no witness equivalent to Ms Shelton or Professor Layton. They are of much less probative value, the absence of the authors is prejudicial to Darrell Lea and their admission for all purposes would add length and confusion to the trial; see Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 378, 382.


case_title: Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 378, 382


case_text: There is a question as to whether leave should be granted to amend the notice of appeal. As was observed by the High Court in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 , at page 7: "To say that an appeal is by way of re-hearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice, that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. " 9 To permit these amendments to the notice of appeal would have about it, in my opinion, a tendency to reduce the proceedings in the Federal Magistrates Court to "little more than a preliminary skirmish". 10 If it were the case that on examination, a ground of additional challenge had about it, even arguably, the likelihood that the proceedings in the Refugee Review Tribunal had completely miscarried at law, then of course the amendment of a notice of appeal would be readily granted. I do not see that any of the bases additionally advanced in the Applicant's submissions, have about them that quality in the circumstances of this particular case. I therefore do not propose, insofar as one might infer a request to amend the notice of appeal from the way in which the written submission has been cast, to allow such amendment. Instead I propose to consider, in more detail, the merits of the grounds of appeal as identified in the notice of appeal.


case_outcome: distinguished

case_text: Ground 4 is more particular. It alleges that the Magistrate made a legal, factual and jurisdictional error in not applying the principles laid down by a Full Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. That case deals with the application of what is known as the "Internal Protection Principle". More particularly, it addresses whether a person who has a well-founded fear of persecution in one region of his or her country of nationality can nonetheless reasonably avail himself or herself of protection within another region of that country. On behalf of the Minister it has been submitted that the principles discussed in that case only arise where there has been a finding that the protection visa applicant has a well-founded fear of persecution. 13 If there is no finding of a well-founded fear of persecution, questions of relocation and of the application of an internal protection principle do not arise. The Appellant's difficulty in this case in relation to ground 4 is that there is a finding by the Tribunal that he does not have a well-founded fear of persecution. In turn, that finding of the Tribunal is a finding that seems, to me, to be one that was reasonably open to the Tribunal to make. That seems to have been the view of the Federal Magistrate and I see no error in that view. In the absence of that foundation, ground 4 must necessarily fail. 14 Ground 5 is in these terms: The Federal Magistrate failed to take into consideration that the tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences of the claim. 15 My reading of the Federal Magistrate's decision is that the Magistrate considered in detail the approach that the Tribunal had taken to the appellant's claim for a protection visa. The conclusion reached by the Federal Magistrate was that the Tribunal did consider the appellant's situation in relation to the claim he advanced for a protection visa. The Magistrate correctly apprehended that the Tribunal had accepted some aspects of the Appellant's claims and rejected others on the basis of credibility. The Magistrate noted that the Tribunal accepted that the Appellant had been subject to physical harassment in 2003. As was appropriate, though, the Magistrate conceded to the Tribunal the role of making value judgments on the merits. 16 It is apparent to me that the merits of the Appellant's claim for a protection visa were considered by the Refugee Review Tribunal. So much was also apparent to the Federal Magistrate. I see no error in the Magistrate's conclusion that the Tribunal had dealt with the Appellant's claim for protection visa on the merits. It is important for the courts, in exercising a judicial review and even more so an appellate jurisdiction, to adopt a principled restraint in the interference with value judgments by administrative tribunals on factual matters. Ground 5 necessarily fails.


case_text: Counsel for the respondents also pointed to some evidence to the effect that related proceedings are being funded by two gentlemen, Mr Brooks and Mr James as material that suggests that the proceedings have been brought for an ulterior purpose. She submitted that, for this additional reason, indemnity costs based upon the principle in Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd [1988] FCA 202 ; (1988) 81 ALR 397 should be ordered and should be ordered in respect of the whole proceedings. 8 It seems to me that more evidence would be required if I were to accept that these proceedings had been brought for an ulterior or extraneous purpose. I am not prepared to order indemnity costs on this basis. However, in my view, the proceedings could have, and should have, been resolved before today along the lines of the solution which was ultimately imposed by me earlier today. That solution had, in substance, been offered by the respondents on 4 December 2008. Indeed, much of what was offered on 4 December 2008 had been previously offered. 9 In those circumstances, I am of the view that the respondents are entitled to indemnity costs as and from 5 December 2008.


case_text: before and after the use of the word "speculative" the Tribunal identified for itself the correct test for a well-founded fear of persecution: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429. I agree with the Federal Magistrate that the Tribunal's reasons, considered as a whole, show that the Tribunal posed for itself the correct test. The second ground of appeal, even if successful, would not mean that the Tribunal had committed jurisdictional error. The question of State protection did not arise in this case because the Tribunal found that the appellants' fear of persecution was not well-founded. That being the case, the question of State protection did not arise. Even if it did, however, in my opinion, the ground has not been made out. Whilst the Tribunal found that rape remained a serious problem in South Africa, the Tribunal raised with the appellants the proposition that they would be able to receive protection from the authorities if they were to return to South Africa. In the end result, it is not entirely clear whether the Tribunal made a decision of that kind but, in my opinion, they were not bound to do so having regard to the conclusion that the appellants' fear of persecution was not well-founded. Insofar as the Tribunal considered the question of State protection, no error has been demonstrated. That disposes of the two grounds.


case_text: Tribunal's reasons must be read fairly and in their context: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271, 291. The Tribunal's use of the word "speculative" was not intended, on a fair reading of the Tribunal's decision, to erect a test for a claim for a well-founded fear of persecution other than that contained in the Refugees Convention. The Tribunal said that the fundamental question for it "is whether there is a real chance of Convention-related harm occurring to the applicants in the reasonably (sic) future." It then addressed the second and third appellants' fear of being raped in South Africa. It is clear that the Tribunal posed for itself the appropriate test, notwithstanding that the Tribunal answered it by saying that the claim was speculative. That is made even clearer by what the Tribunal said after making that finding. It said, "... the Tribunal is not satisfied that those factors, without more, mean that there is a real chance that they would be raped." Other matters were referred to in the appellants' written and oral submissions. In those submissions, the appellants contended that the Tribunal should have found that the second and third appellants' claims of fear of rape were well-founded. The Tribunal found that rape was a serious problem in South Africa. However, the ultimate finding as to whether or not the second and third appellants' fears were well-founded was a matter for the Tribunal. This Court is not entitled to embark upon a merits review: Wu Shan Liang [1996] HCA 6 ; 185 CLR 259 at 272. In the appellants' written submissions, the appellants suggested that the Tribunal failed to assess the second and third appellants as members of a particular social group in considering their claims of fear of rape. The Tribunal did assess their claims on the footing that they were females and beautiful young Indian women. No other particular social group was propounded by the appellants. In that regard, the Tribunal assessed their claims appropriately. In any event, the Tribunal found that their claims of fear of rape were not well-founded. During the hearing, the appellants' counsel contended that the Tribunal had fallen into error by saying that it was "no systematic ill-treatment of Indians by 'black' South Africans". It was put to counsel that the appellants' notice of appeal did not make such a claim. Nor did the appellants' application to the Federal Magistrates Court make such a claim. The Court adjourned for a short time to enable the appellants' counsel to consider whether to apply to amend the notice of appeal to include a further ground. On resumption, the appellants' counsel said no such application would be made. Presumably, in doing so, the appellants had regard to s 91R of the Migration Act 1958 (Cth).


case_outcome: followed

case_text: In Australian Telecommunications Corporation v Lambroglon (1990) 12 AAR 515 at 519 Ryan J indicated that because O 53 was not qualified in any way by reference to the other Rules, it should in the first instance determine the practice and procedure applicable to appeals from the AAT. The parties made no submission to the contrary. 13 Indeed, the second respondent stressed that the Court should apply O 53 in its terms, rather than direct that the venue of the hearing of the appeal be changed to the Victoria District Registry under s 48 of the Federal Court of Australia Act 1976 (Cth), or under O 30 r 6(1), or that the proceeding be transferred to that Registry under O 10 r 1(2)(f), having regard to the definition of the "proper place" in O 1 r 4 of the Rules.


case_outcome: considered

case_text: In Hadid v Lenfest Communications Inc (1996) 70 FCR 403, Hill J at 407 pointed out that, for the purposes of enlivening the Court's power to control access to certain documentation under s 50 of the Federal Court of Australia Act 1976 (Cth), the "hearing of a proceeding" could extend to a directions hearing or an interlocutory process. See also E v Australian Red Cross Society (1991) 27 FCR 310. That view is reflected in, and consistent with, the definition of "hearing" in O1 r 4 of the Rules, namely that "hearing includes any hearing before the Court, whether final or interlocutory, and whether in open court or in chambers". Order 10, referring to the Court's powers at a directions hearing, apparently uses the term "hearing" in r 1(2)(c) in a somewhat more confined sense as a hearing in which the Court proposes to perform an adjudicative function (not necessarily a final adjudication). Order 30 r 1(2)(a) uses the term "trial" to include any interlocutory hearing. In Martin v Abbott Australasia Pty Ltd [1981] 2 NSWLR 430, Hunt J at 434-436 regarded an appeal "after a trial or a hearing on the merits" as including to an appeal from an interlocutory hearing. A similar conclusion was reached by Anderson J in Melbourne & Metropolitan Board of Works v Bevelon Investments Pty Ltd [1977] VR 473 at 475-477.


case_title: E v Australian Red Cross Society (1991) 27 FCR 310


case_title: Martin v Abbott Australasia Ltd [1981] 2 NSWLR 430


case_title: Melbourne & Metropolitan Board of Works v Bevelon Investments Pty Ltd (1977) VR 473


case_text: However, O 53 r 1 directs attention not to the District Registry of the AAT in which it heard the matter but to the geographical place, namely the State or Territory, in which the AAT heard the matter. The hearing must be the hearing of the issue in the matter which led to the decision the subject of the appeal. In the present appeal, that issue was the definition of, and extent of, the King Valley wine region. The President sat only in Victoria apart from giving his decision, which he gave in Sydney (so the hearing of the matter may be said to have taken place both in Victoria and New South Wales). The application does not complain of the orders made, or declined, at directions hearings. However, I do not consider it is possible to divorce the location of the directions hearings from "the matter" referred to in O 53 r 1. The hearing to which O 53 r 1 refers is that of the matter itself, and not a particular issue or issues, or a particular step or steps in the process. The term "matter" of course conveys the whole of the controversy before the AAT: South Australia v Victoria [1911] HCA 17 ; (1911) 12 CLR 667 at 675; Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457 at 507-509.


case_title: Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457


case_text: The parties did not seek to rely on the jurisprudence concerning the transfer of proceedings or the determination of the "proper place" of proceedings under s 48 of the FCA Act, or O 10 r 1(2)(f) of the Rules. However, their submissions focussed upon the connection of the subject of the AAT proceedings and this appeal to Victoria and the respective convenience of the parties. Their submissions therefore in fact centred upon the sort of considerations discussed in National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155 and subsequent decisions concerning s 48 of the FCA Act and O 10 r 1(2)(f). 25 In this matter, there is no circumstance relevant to the efficient administration of the Court to be weighed. The appeal will be heard following the next Full Court callover with equal facility in Adelaide or Melbourne. 26 Clearly, the subject matter of the appeal is in Victoria. Nothing more need to be said on that point. The application to the AAT in its South Australia District Registry appears to have been made because the applicants were South Australian based, and had relevant interests in or in the vicinity of the King Valley area. 29 In my view, generally speaking, little weight should be given to the fact that counsel or the solicitors for a party are in a particular location. Principally, that is because the selection of counsel and solicitors is a matter for the parties. Their choice should not be of significance to the identification of the proper place of a matter. The Court is a national Court, with Registries in each State and Territory and can sit anywhere in Australia. However, to an extent, there is a tendency for parties to institute proceedings in a Registry of the Court convenient to counsel or the solicitors for the parties rather than in a Registry which has a real connection with the subject matter of the dispute, or indeed with the parties themselves or the witnesses. I do not think that the Registry where proceedings are instituted should be dictated by that consideration. Further, where that is the case, it may well be appropriate to transfer the proceeding to a proper place, having regard to the considerations discussed in Sentry and other cases. 30 For those reasons, I order that the Victoria District Registry is the appropriate Registry for this appeal and that the proceeding be transferred to the Victoria District Registry of the Court. 31 In my view, as the second respondent has succeeded on its motion, but only on one of the two matters it argued, the appropriate order is that the costs of the second respondent on the motion should be its costs on the appeal. The intention of that order is that, if the appeal is successful, there will in effect be no costs of the motion, but if the appeal is dismissed and the second respondent gets its costs of the appeal, those costs will include its costs of and incidental to the motion. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 23 January 2007 Counsel for the Applicant: D Agresta Solicitor for the Applicants: Iles Selley Lawyers Counsel for the First Respondent: The First Respondent did not appear Counsel for the Second Respondent: T Ginnane SC and L De Ferrari Solicitor for the Second Respondent: J Francis Date of Hearing: 14 December 2006 Date of Judgment: 25 January 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/22.html


case_title: Hamm v Middleton (1999) 44 IPR 656

case_text: its written submissions, the Crown submitted that: (1) In considering a severity appeal for Commonwealth offences, the court is required to have regard to the matters set out in Part 1B of the Crimes Act , and more specifically to the matters set out under s 16A , which provides a list of non-exclusive factors that a court should take into account when sentencing a federal offender: R v El Karhani (1990) 21 NSWLR 370. (2) The governing principle under s 16A(1) is the imposition of a sentence which is of a "severity appropriate in all the circumstances of the offence". (3) The Court must consider the matters adverted to under s 16A(2) , together with the important consideration of general deterrence: R v El Karhani ; R v Paull (1990) 20 NSWLR 427, per Hunt J. (4) The following sentencing principles are directly applicable in the present case: General Deterrence (5) In R v El Karhani , the NSW Court of Criminal Appeal reaffirmed the principle of general deterrence when sentencing for Commonwealth offences and agreed with Hunt J R v Paull at 377F. The Court (Kirby P, Campbell & Newman JJ) at 377H also cited Street CJ (writing for the Court) in Rushby [1977] 1 NSWLR 594 at 597 598. (6) General deterrence is of particular importance in sentencing for Copyright Act and Trade Marks Act offences. (7) In Hamm v Middleton (1999) 44 IPR 656, Von Doussa J sentenced the defendant to three offences under s 132(1)(b), 132(2A)(a) and 132(1)(d)(i) of the Copyright Act and remarked (at [18]): "However, there is also the question of general deterrence. It is important in these types of offences, which are not always easy to detect and that have the potential to interfere with important rights in the community, that the penalty fixed be sufficient to deter others that might be minded to engage in similar conduct. That is a matter which I must take into account here." (8) The legislature has also reflected the seriousness with which it considers such offences by prescribing custodial sentences as maximum penalties. In particular, the Copyright Act offences stipulate a maximum penalty of five years imprisonment on summary conviction: s 132(6AA) Copyright Act . (9) In the present case the appellant's high level of criminality is reflected in her role of infringing copyright and affixing false trade mark labels on a large number of pirated video cassettes, before renting these copyright-infringed items to the general public. The Section 16A(2) "Check List" Considerations (10) In addition to the principle of general deterrence, s 16A(2) of the Crimes Act provides a "check list" which the Court is to have regard to when sentencing an offender for a Commonwealth offence. Section 16A(2)(a): "The Nature and Circumstances of the Offence" (11) The offences for which the appellant pleaded guilty and was convicted are objectively serious, as reflected by the maximum penalties five years imprisonment for the copyright offences and 12 months imprisonment for the trade mark offences: see [6] above. (12) The appellant traded in the pirated videos by renting them to the public for monetary gain. The presence of the television and extensive video equipment in her home and the large quantity of copyright-infringed video cassettes (over 35,000) demonstrates the high volume commercial extent of her criminality. The fact that the appellant has previously been convicted of similar offences also negates any suggestion that this was an isolated or "one-off' offence. (13) The Court is entitled to take into account the context and surrounding circumstances of the crime. Although 11 representative charges were ultimately prosecuted and the appellant pleaded guilty to these, this Court is not limited to only considering the facts arising from just these charges. While this Court cannot rely on the surrounding circumstances to aggravate penalty and increase the sentence, it is entitled to take these factors into account in reaching the conclusion that this was not an isolated incident so there is no warrant to extend leniency: see Holyoak (1995) 82 A Crim R 502 (at 509 511) per Allen J (Handley JA and Hulme J agreeing). Section 16A(2)(c): "If the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character that course of conduct" (14) Under s 16A(2)(c) , the Court is entitled to take into account the fact that the offence forms part of a course of conduct consisting of a series of criminal acts of the same and similar character: Hamm v Middleton at [15]. (15) Prior to the search warrant being executed, undercover representatives of the copyright holder rented copyright-infringed videos from the appellant on three occasions. (16) This course of conduct serves to further demonstrate that the purpose of the appellant's possession of the copy-infringed items was to achieve a commercial gain for her own benefit. Section 16A(2)(f): "The degree to which the person has shown contrition for the offence: (i) by taking action to make reparation for any loss resulting from the offence; or (ii) in any other manner"; and s 16A(2)(g): "If the person has pleaded guilty to the charge in respect of the offence that fact" (17) The offences committed by the appellant were detected after the execution of a search warrant on her home on 7 February 2006 by the NSW Police. On 14 March 2006, the appellant was arrested and charged. After two court dates (27 April 2006 and 8 June 2006), the appellant entered pleas of guilty and was convicted and sentenced on 30 June 2006 at Liverpool Local Court. (18) The Crown acknowledges that the appellant's pleas of guilty to the charges occurred at a relatively early stage. By her plea, the appellant can be said to have "facilitated the course of justice" (otherwise referred to as the utilitarian effect): R v Ellis (1986) 6 NSWLR 603 at 604; R v Winchester (1992) 58 A Crim R 345. (19) However, the pleas of guilty entered by the appellant were made in circumstances where she faced an overwhelming Crown case, namely: • Just prior to the execution of the search warrant, the appellant had on three prior occasions rented out pirate videos to undercover representatives of the copyright holder, Status Investigations & Security Pty Ltd; and • Over 35,000 copyright-infringed videocassettes (the large majority bearing the "TVB" trade mark) and recording equipment (19 video recorders and two television sets) were located in her home. Accordingly, the appellant's pleas of guilty must be seen in the context of an acknowledgement of the strength of the Crown case and a recognition of the inevitable: R v Winchester . Section 16A(2)(h): "The degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences" (20) The appellant has not cooperated in any way with the authorities in the investigation of the offences. Section 16A(2)(k): "The need to ensure that the person is adequately punished for the offence" (21) The following should be taken into account: • The strength of the Crown case. • The objective gravity of the offence. • The need for general deterrence. • The need for a strong subjective deterrence aspect. Section 16A(2)(m): "The character, antecedents, age, means and physical and mental condition of the person" Criminal antecedents (22) On 15 May 2002, the appellant was convicted on a number of Copyright Act infringement offences at Liverpool Local Court (see criminal history tendered on sentence). In relation to these offences, the appellant was placed on a good behaviour bond for two years with a self-surety of $500 and fined various amounts. Accordingly, the appellant cannot claim to be a person of good character. (23) In any event, the Courts have repeatedly held that less weight is accorded to good character for "white collar" or fraud-related crime where the need for general deterrence is strong: R v Thompson (1975) 11 SASR 217 (per Bray CJ at 222); R v El-Rashid (unreported, Court of Criminal Appeal, NSW, 7 April 1995); R v Williams [2005] NSWSC 315 ; R v Ronen and Ors [2005] NSWSC 991 ; R v Cooper [2006] NSWSC 609. The Appellant's Subjective Features (24) The appellant's subjective features are identified in two pre-sentence reports dated 22 June 2006 and 20 September 2006. She is a single mother aged 53 with two children, one being an autistic son now aged 20 who is living at a residential home and away from the appellant (see (26) (27) below). (25) At the time of the preparing of these reports the appellant was unemployed and receiving social security benefits. She does not suffer from any physical or mental health conditions. At the time of execution of the search warrant, the appellant was living in her mortgaged home. Section 16A(2)(p): probable effects of any sentence on offender's family or dependants (26) Section 16A(2)(p) of the Crimes Act requires the Court to consider the probable effects of any sentence would have upon the offenders' family or dependants. The applicable test is whether the family members will suffer "exceptional hardship" as a result of any sentence imposed when evaluated against the objective criminality of the offences: R v Maslen & Shaw (1995) 79 A Crim R 199 at 209. (27) The appellant has a son aged 20 years old who has been diagnosed as having a "severe level of Intellectual Disability ... Autism Spectrum Disorder and a Mood Disorder." According to a report provided by the Department of Ageing, Disability & Home Care dated 23 January 2006, the appellant's son had received treatment and accommodation from several residential health care centres. As at June 2006, the appellant reported in her pre-sentence report that "her son is currently residing in hospital care due to associated problems with having autism." (at page 1). Reliance on third party reports tendered at sentence (28) Considerable caution should be exercised in relying on reports containing hearsay material provided by an offender and such evidence should be given limited weight. Appropriate Sentencing Range (29) The proper approach to sentencing involves the weighing of all relevant factors in order to reach a conclusion that a particular penalty is the one that should be imposed. In doing so a court should avoid taking a mathematical approach in which there are increments to or decrements from a predetermined range of sentences. Such an approach departs from principle because it does not take into account the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. It is also wrong because singling out a circumstance and attributing to it a specific numerical or proportionate value distorts the difficult balancing exercise which the sentencing judge must perform: Markarian v The Queen [2005] HCA 25 ; (2005) 215 ALR 213 (per Gleeson CJ, Gummow, Hayne and Callinan JJ at [37] [39]); and Wong v The Queen [2001] HCA 64 ; (2001) 207 CLR 584 (at [74] [76]). (30) However, in a simple case where the circumstances of the crime have to be weighed against one or a small number of other important matters, some "indulgence" in an arithmetical process (legislative requirements apart) may be permitted. But as a general rule courts should no longer add or subtract item by item passages of time in order to fix the time an offender must serve in prison: Markarian at [39]. The Custodial Sentence Imposed by the Local Court (31) Pursuant to the Court's consideration of relevant provisions under Part 1 B of the Crimes Act and the principle of general deterrence, the objective seriousness of the offence, the repeal of s 16G of the Crimes Act and the applicable maximum penalties, the Magistrate at first instance was well within his discretion to impose concurrent full-time custodial sentences in relation to the six Copyright Act offences and five Trade Marks Act offences. (32) In imposing these penalties, the Magistrate had proper regard for the following principles: (a) the need for general deterrence; (b) the need for specific deterrence, in circumstances where the appellant had previously been convicted for similar offences under the Copyright Act ; (c) the objective seriousness and criminality of these offences and the legislative intent of Parliament; (d) the reduction in sentence for contrition (demonstrated by the early plea) is tempered by the strength of the Crown case and a recognition of the inevitable. (e) the subjective features of the appellant, including the medical condition of her son. (33) It is further submitted that the Magistrate's sentence of 12 months imprisonment as a head sentence with an effective custodial sentence of 8 months was within the permissible range. (34) While the penalties for the Copyright Act offences may be at the higher end of the scale, the Crown submits that they are not manifestly excessive, given that the allowable maximum penalty for offences under ss 132(6AA) and (6A) of the Copyright Act is five years imprisonment on summary conviction.


case_title: Holyoak v The Queen (1995) 82 A Crim R 502


case_title: Kovac v The Queen (1977) 15 ALR 637

case_text: was submitted that these procedural errors are significant and that their intrinsic part in the sentencing process has the result that the discretion exercised by the sentencing court has miscarried, is unsound or unreasonable in its exercise, and this is reflected in the severity of the sentence actually handed down. The appellant asks that the sentence the subject of appeal be set aside and that this Court substitute its own sentence in lieu: Kovac v The Queen (1977) 15 ALR 637. The balance of the appellant's submissions were directed to (1) The circumstances that do not justify full-time custody: three key matters that are to be considered under s 16A of the Crimes Act: (a) the need to ensure that the person is adequately punished for the offence; (b) the deterrent effect that any sentence or order under consideration may have on the person; (c) the prospect of rehabilitation of the person. (2) A just and appropriate sentence to be substituted in lieu such as community service, as was recommended to Liverpool Local Court by the Probation and Parole Officer's Pre-Sentence Report of 22 June 2006. Dealing with each of the matters in turn, the appellant submitted that the time in full-time custody already spent (five days), together with a community service order, lengthy if need be, would be adequate punishment, and that any greater level of punishment meted by the Court would exceed that which is just and appropriate with respect to the objective features of the offence committed. In this regard, the appellant relies on sentencing statistics published by the Judicial Commission of New South Wales in 2007 and annexed to her written submissions which illustrate that over the period October 2002 to September 2006 in the case of 90 offenders convicted of breaching s 132 of the Copyright Act and in respect of 102 offenders convicted of breaching s 148 of the Trade Marks Act , none were imprisoned. Any that were given a custodial sentence were immediately released pursuant to s 20(1(b) of the Crimes Act . This, the appellant submits, provides a measure for this Court to assess the objective criminality of the offence and thus a guide as to what level of punishment is adequate. In Kovac , a Full Court of this Court said (at 642, 643): "In Harris v R [1954] HCA 51 ; (1954) 90 CLR 652, the High Court considered an appeal against sentence under s 64(1) of the Papua New Guinea Act 1949 to hear and determine appeals from all judgments, decrees, orders and sentences of the Supreme Court of the Territory. The court held that it would not interfere with a sentence of imprisonment imposed unless it was satisfied that the discretion exercised by the court imposing the sentence miscarried or was unsound or unreasonable in its exercise. In a joint judgment, Dixon CJ, Fullagar, Kitto and Taylor JJ cited with approval a passage from the decision of the High Court in Cranssen v R [1936] HCA 42 ; (1936) 55 CLR 509. In the latter case, after pointing out that an appeal against sentence is an appeal from a discretionary act of the court responsible for the sentence, Dixon, Evatt and McTiernan JJ (at 519) said: 'The jurisdiction to revise such a discretion must be exercised in accordance with recognized principles. It is not enough that the members of the court would themselves have imposed a less or different sentence, or that they think the sentence over-severe. There must be some reason for regarding the discretion confided to the court of first instance as improperly exercised. This may appear from the circumstances which that court has taken into account. They may include some considerations which ought not to have affected the discretion, or may exclude others which ought to have done so. The court may have mistaken or been misled as to the facts, or an error of law may have been made. Effect may have been given to views or opinions which are extreme or misguided. But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the court's authority;' Following this citation their Honours (at p 656) in Harris' Case added: 'It is not enough in applying those principles that the judges of this court should regard the sentence as greater than they themselves would have imposed'."


case_title: Markarian v The Queen [2005] HCA 25 ; (2005) 215 ALR 213


case_title: R v Cooper [2006] NSWSC 609


case_title: R v El Karhani (1990) 21 NSWLR 370


case_title: R v Ellis (1986) 6 NSWLR 603


case_title: R v El-Rashid (unreported, Court of Criminal Appeal, NSW, 7 April 1995)


case_title: R v Maslen & Shaw (1995) 79 A Crim R 199


case_title: R v Paull (1990) 20 NSWLR 427


case_title: R v Ronen and Ors [2005] NSWSC 991


case_text: principles were referred to again by another Full Court in R v Tait (1979) 24 ALR 473, following which the Court said (at 476): "An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error (see generally, Skinner v R [1913] HCA 32 ; (1913) 16 CLR 336 at 339-40; R v Withers (1925) 25 SR (NSW) 382 at 394; Whittaker v R [1928] HCA 28 ; (1928) 41 CLR 230 at 249; Griffiths v R (1977) 15 ALR 1 at 15-17)." As indicated at [14] above, the appellant identified two errors in the sentencing procedure in the present case. The first was said to be a failure to consider all possible alternatives to full-time imprisonment, contrary to the provisions of s 17A of the Crimes Act . The difficulty with this alleged error is that, at the time of sentencing, his Honour said: "I have considered all other appropriate penalties and I consider nothing other than full-time gaol is the appropriate penalty ..." In my view, this alleged error cannot be sustained. The other error in the sentencing procedure identified by the appellant is the alleged failure of his Honour to apply and properly record the utilitarian discount given for a plea of guilty. In prefacing the imposed sentence, his Honour did refer to the appellant's guilty plea and was obviously mindful of it. It is just not possible to know to what extent, if any, his Honour took it into account in the exercise of his sentencing discretion. I would not be prepared to interfere with the sentence his Honour imposed on the basis of this alleged error. In my view, the only real question raised by this appeal is whether the nature of the sentence imposed, when considered in relation to the offences and the circumstances of the case, is so excessive as to manifest "convincing evidence" that in some way the exercise of the discretion has miscarried or is unsound. As the authorities to which I have referred make clear, it is not enough that I might regard the sentence as greater than what I would have imposed. It appears to be common ground between the appellant and the Crown that no person convicted of the offences for which the appellant pleaded guilty and was convicted has been incarcerated in prison. Custodial sentences have been imposed but invariably have been effectively suspended by orders made pursuant to s 20(1)(b) of the Crimes Act directing the immediate release of the offender sentenced to imprisonment upon giving security, by recognizance or otherwise, to the satisfaction of the court, for compliance with the conditions referred to in para (a) of s 20(1). However, those facts themselves do not lead to the conclusion that the sentence imposed on the appellant was so excessive as to manifest "convincing evidence" that the exercise of his Honour's discretion miscarried. Any such conclusion could only be reached by weighing those comparative facts against the maximum penalties as a measure of the seriousness with which the legislature views such offences five years imprisonment for the Copyright Act offences having regard to the principle of general deterrence, the need for specific deterrence particularly in the face of conviction for a past similar offence, rejecting as I do, the appellant's submission for discounting this factor for the media publicity this case received, and the scale of the illegal commercial operation carried on by the appellant. So weighed and measured, the sentence imposed by his Honour does not, on its face, exhibit the character of being so excessive that the exercise of the discretion is put in doubt. I have come to the conclusion that I should not interfere with the term of imprisonment of 12 months for each offence to be served concurrently, however, I reduce the non-release period from eight months to three months on the same recognizance. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate: Dated: 18 September 2007 Counsel for the Applicant Mr Q Nguyen Counsel for the Respondent Mr C Ng Solicitor for the Respondent Commonwealth Director of Public Prosecutions Date of Hearing: 27 April 2007 Date of Judgment: 18 September 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1463.html


case_title: R v Thompson (1975) 11 SASR 217


case_text: her written submissions, the appellant submitted that the Magistrate committed two errors upon sentencing her: (1) Failure to consider all possible alternatives to full-time imprisonment: s 17A of the Crimes Act . That section provides: Restrictions on imposing sentences "(1) A court shall not pass a sentence of imprisonment on any person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case. (2) Where a court passes a sentence of imprisonment on a person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, the court: (a) shall state the reasons for its decision that no other sentence is appropriate; and (b) shall cause those reasons to be entered in the records of the court. (3) The failure of a court to comply with the provisions of this section does not invalidate any sentence. (4) This section applies subject to any contrary intention in the law creating the offence." (2) Failure to apply and properly record the utilitarian discount given for a plea of guilty: R v Thomson; R v Houlton ( 2000) [2000] NSWCCA 309 ; 49 NSWLR 383.


case_title: R v Williams [2005] NSWSC 315


case_title: R v Winchester (1992) 58 A Crim R 345


case_outcome: referred to

case_text: In Minister for Immigration; ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 the High Court held, when dealing with ss 52 to 63 of the Act , that there was no intention to exclude the operation of common law rules of procedural fairness. In Nais v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 (" Nais" ), Gleeson CJ referred to Bastarache J whom, for the majority in Blencoe v British Columbia (Human Rights Commission) [2000] 2 SCR 307 at 367 [102], said that it was "accepted that the principles of natural justice and the duty of fairness include the right to a fair hearing and that undue delay in the processing of an administrative proceeding that impairs the fairness of the hearing can be remedied". There was, however, no infringement of this principle in this case.


case_text: In Minister for Immigration; ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 the High Court held, when dealing with ss 52 to 63 of the Act , that there was no intention to exclude the operation of common law rules of procedural fairness. In Nais v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 (" Nais" ), Gleeson CJ referred to Bastarache J whom, for the majority in Blencoe v British Columbia (Human Rights Commission) [2000] 2 SCR 307 at 367 [102], said that it was "accepted that the principles of natural justice and the duty of fairness include the right to a fair hearing and that undue delay in the processing of an administrative proceeding that impairs the fairness of the hearing can be remedied". There was, however, no infringement of this principle in this case. 14 Much of the delay in this case can be attributed to the Department's efforts to allow Mr Hassan an opportunity to respond to Ms Kurami's letter of 14 April 2004. Also, the delay must be considered within the context of an application for a spousal visa. Marriage is intended to be a life-long commitment. Thus, a delay of a few months should not prejudice an applicant for a spouse visa. The delay in this case was significantly less than that considered in Nais (41/2 years) where the High Court did find a breach of procedural fairness. In all the circumstances, I do not find that the delay in this case involved a denial of procedural fairness. 15 As the appellant has identified no error in the decisions of the Tribunal or the Federal Magistrate, I would dismiss the appeal with costs. 16 It is open to the appellant to make application to the Minister pursuant to s 351 of the Act , which enables the Minister to make a more favourable decision notwithstanding the decision of the Tribunal. There would be no impediment to him so doing. His would appear to be an appropriate case for making such an application. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate: Dated: 6 April 2006 Applicant appeared in person Counsel for the Respondent: Mr C Symons Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 9 March 2006 Date of Judgment: 9 March 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/379.html


case_title: Blencoe v British Columbia (Human Rights Commission) [2000] 2 SCR 307


case_text: Numerous authorities have held that, absent any default by the Tribunal in the fulfilment of its statutory obligations relating to the provision of an invitation to attend a hearing, no ground of procedural unfairness arises because of some default on the part of an agent retained by an applicant. In NBAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1668 , Barnes FM at 33, adopting the observations of Lord Bridge in Regina v Home Secretary; Ex parte Al-Mehdawi (1990) 1 AC 876 at 898, rejected the submission that fraud by an agent constituted jurisdictional error. In SZBSZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 779 Bennett J considered the circumstance in which an applicant claimed his migration agent had acted without consultation or instructions and in consequence an invitation to attend a Tribunal hearing was declined. Her Honour concluded that since the Tribunal's letter was forwarded in accordance with the relevant statutory requirements, there was no failure to give the applicant the opportunity to appear before the Tribunal, even though the applicant claimed that he had never received it. Accordingly the Tribunal was entitled to make a decision on the application for review in the absence of the applicant. The same conclusions were made in Applicant M172 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 23. In SZBBL v Minister for Immigration [2004] FMCA 185 , Driver FM rejected the submission that there had been a denial of natural justice because of default on the part of the migration agent. His Honour's decision was upheld on appeal in this Court by Tamberlin J: see SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834.


case_text: In SZFDE the majority found that the legislative scheme contained in Div 4 of the Act required an invitation to be given to the appellant. Such invitation had been provided, and the decision not to attend resulted from the dishonest conduct of the agent. However, such conduct did not corrupt the decision or the statutory process. The majority considered that authorities which have upheld challenges to orders made against a party by a court in their absence through no fault of their own, such as Taylor v Taylor [1979] HCA 38 ; (1979) 143 CLR 1 and Cameron v Cole [1944] HCA 5 ; (1944) 68 CLR 571, are distinguishable because of the absence of the statutory scheme provided by the Act.


case_text: The sole basis for the assertion that there has been procedural error arises in consequence of the alleged fraudulent conduct by the appellant's nominated agent arising from his advice to the appellant that he would attend the hearing on his behalf and that it was not necessary for the appellant to attend. The appellant claims that there was a failure to comply with s 425 of the Act because he was not provided with a ' real and meaningful invitation ', as considered in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553 at [37] , because of the conduct of the migration agent. 26 In SCAR the Full Court recognised that under certain circumstances the invitation process prescribed by s 425 of the Act may not have been fulfilled (see also SZFML ). However, in SCAR the Full Court found that the Tribunal innocently provided unfair treatment to the appellant in circumstances where the appellant was ill. In Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050 ; (2002) 122 FCR 322, the Tribunal provided a translator who was unable to speak the appellant's language. In VBAB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804 ; (2002) 121 FCR 100, the appellant was misled by statements of the Tribunal. In Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCR 359, the Tribunal declined to grant an adjournment of the hearing, knowing that the appellant was incapacitated. Although the requirement of s 425 had been followed, the invitation was held to be 'an empty gesture and a denial of procedural fairness'(see Hely J at 366 [36]).


case_text: Even if the appellant established fraud, in the sense of reckless conduct or dishonesty by his migration agent which resulted in a non-attendance at a hearing of the Tribunal, the decision of the Tribunal is not vitiated: see Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 in which Allsop J said at [136]: 'The parties did not attend a hearing to which they were invited, on the facts, because of the dishonest advice of their own agent. The decision itself was made, without the benefit of the participation of the respondents, but unaffected, and certainly not induced, by fraud.' His Honour also said at [139]: 'There has been no fraud of the Tribunal. There has been no fraud of the executive department. There was an invitation to attend a hearing. That invitation was declined. That decision to decline the invitation was influenced by the dishonesty and fraudulent purpose of the agent of the applicants. I do not see the basis for a conclusion that there was any denial of procedural fairness or that those circumstance [sic] denied the Tribunal the authority to decide the review given the terms of ss 425, 426A and s 422B.' 25 In SZFDE the majority found that the legislative scheme contained in Div 4 of the Act required an invitation to be given to the appellant. Such invitation had been provided, and the decision not to attend resulted from the dishonest conduct of the agent. However, such conduct did not corrupt the decision or the statutory process. The majority considered that authorities which have upheld challenges to orders made against a party by a court in their absence through no fault of their own, such as Taylor v Taylor [1979] HCA 38 ; (1979) 143 CLR 1 and Cameron v Cole [1944] HCA 5 ; (1944) 68 CLR 571, are distinguishable because of the absence of the statutory scheme provided by the Act. 28 In SZFDE French J dissented, finding that the fraud did affect the decision because it resulted in the non-appearance of the appellant before the Tribunal. As a consequence the Tribunal was deprived of the opportunity of exploring certain issues with the appellant. French J concluded that the Tribunal's decision ' was not one made under the Act, and therefore not a privative clause decision protected by s 474 '. French J's decision recognises the possibility that where, through no fault of their own, an appellant is deprived of a hearing, circumstances may exist to vitiate the decision despite compliance with the requirements of the statutory scheme. This possibility was also recognised by the Full Court in SZFML . It is apparent that the facts in each case will be critical in determining whether consent by the appellant to the agent in fact existed. 29 This Court considers that it is bound to follow the majority in SZFDE , and to conclude that fraud, even if proved by the appellant, does not vitiate the decision of the Tribunal. 30 In view of the above finding, it is not necessary to consider this ground of appeal. However, the Court will nevertheless state its observations. 31 The appellant also challenges the finding of Nicholls FM that the MARA Notice would not establish fraudulent conduct by the agent and that the evidence before the Tribunal was not sufficient to establish fraud. The appellant sought to rely upon the MARA Notice as demonstrating a ' propensity ' for the migration agent to have misled the appellant by conduct amounting to fraud, or conduct akin to fraud. 33 In written submissions provided after the hearing, the appellant relied upon the dissenting judgment of French J in SZFDE wherein his Honour stated that ' the common law proposition that fraud may vitiate an administrative decision ' extends to cover ' reckless conduct ', and sought to establish that the evidence of the migration agent's wrongful conduct in the MARA Notice is relevant to the question of whether the agent's conduct was reckless. The appellant submitted that the MARA Notice would show a 'system' or 'pattern' and a repetitiveness of conduct which would strengthen the inference to be drawn from such evidence within the meaning of s 97(1) of the Evidence Act . 34 Nicholls FM held at [23]: 'Even if the conduct of the agent could be said to be fraudulent (or akin to fraud) none of this material or what the witness was expected to say, went to show irregular conduct on the part of the Tribunal. Nor on the basis of what the Full Court said in NASB where fraud is given as one specific example which could be relevant, does this material go to show fraud or even any other irregular conduct on the part of a Minister or those associated with the Minister. Nor does this material go to show fraud, perjury or other misconduct of a witness before the Tribunal.' 36 I am unable to find that there is any jurisdictional error in His Honour's conclusions. Section 55 of the Evidence Act establishes the parameters of the evidence which is admissible. His Honour was also entitled, pursuant to s 97(1)(b) of the Evidence Act to conclude that the evidence had no significant probative value. The evidence of the MARA Notice and of the proposed witness would do no more than establish a suggestion of misleading conduct between the migration agent and other parties. It does not establish any link between the conduct of the migration agent and the appellant in these proceedings. The Court is unable to find any jurisdictional error on the part of Nicholls FM, and the subsequent Full Court decision in SZFDE now conclusively determines that fraud by an agent does not result in jurisdictional error by a Tribunal. It follows that the appeal must be dismissed. 37 An order that the appellant pay the costs of the first respondent in the sum of $2700 has been sought. The Court finds such amount to be reasonable and will make the order sought. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 17 November 2006 Counsel for the Appellant: B Zipser Counsel for the Respondent: M A Izzo Solicitor for the Respondent: Sparke Helmore Date of Hearing: 6 November 2006 Date of Judgment: 17 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1477.html


case_text: In contrast, in Minister for Immigration & Multicultural & Indigenous Affairs v SZFML and Anor [2006] FCAFC 152 the agent had correctly indicated to the Tribunal that his client wished to attend the hearing. Shortly before the hearing date the Tribunal changed the date. A further invitation was provided to the agent, who responded stating that the appellant did not wish to attend. However evidence established that in fact the appellant, being unaware of the date change, had attended at the hearing on the day and had always wished to provide further evidence in support of her case. Further, cross examination of her agent satisfied the Court that the agent's evidence that he received instruction from the appellant was unreliable. The Full Court found that the appellant had not authorised her agent either generally or specifically to complete the second Response to Invitation form. It concluded that s 441G of the Act had no operation if the agent for the appellant acted beyond the scope of his authority in returning the Response to Invitation contrary to the instructions provided by the appellant. The Full Court confirmed the finding of the Federal Magistrate that where there was no effective consent submitted to the Tribunal by an appellant concerning the hearing, the appellant was not bound by the conduct of the agent. 22 The facts of the present case do not raise this issue. The appellant acknowledges that he signed the Response to Invitation form. He did not speak English but he knew that the form related to an invitation to attend the hearing, and he signed the form knowingly indicating that he would not be attending the hearing. His complaint is that he was given the wrong advice by his migration agent, namely that the migration agent would attend the hearing. Unlike the unique circumstances in SZFML, the appellant does not claim that he wanted to attend the hearing. Rather, he was content for the migration agent to attend. 23 I consider that the circumstances now before the Court are indistinguishable from those considered in NASF . The appellant has not been denied an opportunity to attend the hearing and the Tribunal complied with the requirements of s 425, in the same way as was found by Bennett J in SZBZL . The Court therefore concludes that there was no jurisdictional error on the part of Nicholls FM. 26 In SCAR the Full Court recognised that under certain circumstances the invitation process prescribed by s 425 of the Act may not have been fulfilled (see also SZFML ). However, in SCAR the Full Court found that the Tribunal innocently provided unfair treatment to the appellant in circumstances where the appellant was ill. In Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050 ; (2002) 122 FCR 322, the Tribunal provided a translator who was unable to speak the appellant's language. In VBAB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804 ; (2002) 121 FCR 100, the appellant was misled by statements of the Tribunal. In Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCR 359, the Tribunal declined to grant an adjournment of the hearing, knowing that the appellant was incapacitated. Although the requirement of s 425 had been followed, the invitation was held to be 'an empty gesture and a denial of procedural fairness'(see Hely J at 366 [36]). 28 In SZFDE French J dissented, finding that the fraud did affect the decision because it resulted in the non-appearance of the appellant before the Tribunal. As a consequence the Tribunal was deprived of the opportunity of exploring certain issues with the appellant. French J concluded that the Tribunal's decision ' was not one made under the Act, and therefore not a privative clause decision protected by s 474 '. French J's decision recognises the possibility that where, through no fault of their own, an appellant is deprived of a hearing, circumstances may exist to vitiate the decision despite compliance with the requirements of the statutory scheme. This possibility was also recognised by the Full Court in SZFML . It is apparent that the facts in each case will be critical in determining whether consent by the appellant to the agent in fact existed.


case_text: In NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 the Court referred to the ' degree of irregularity ' that an applicant would need to show in order to obtain relief. Nicholls FM concluded that the details in the MARA Notice and the prospective witness' proposed statement did not ' bridge the gulf between the agent's conduct which led to his deregistration and the elements necessary to prove fraud (or for that matter 'something akin to fraud' whatever that may be) .'


case_title: NBAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1668


case_title: Regina v Home Secretary; Ex parte Al-Mehdawi (1990) 1 AC 876


case_title: SZBBL v Minister for Immigration [2004] FMCA 185


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


case_title: SZBSZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 779


case_title: Taylor v Taylor [1979] HCA 38 ; (1979) 143 CLR 1