case_text: The Commonwealth also accepts that the evidence of the Aboriginal witnesses provides the most important evidence in a native title case. It points out that trial Judges dealing with native title claims in this Court have consistently stated that what really matters in such cases is the evidence of the Aboriginal claimants: Yarmirr v Northern Territory (1998) 82 FCR 533 (' Yarmirr' ), at 562, per Olney J; De Rose(FCA) , at [342], [351], per O'Loughlin J. 289 The Commonwealth submits that there are inconsistencies between the evidence of Aboriginal witnesses and the expert evidence given by Professor Sutton and Ms Vaarzon- Morel. Both experts describe the information provided to them by Aboriginal people (many of whom were witnesses in the proceedings) as 'folk models' that can be at odds with the actual behaviour of people. In the words of Professor Sutton: 'The old rules persist in the minds of older people and may be stated in a simple or conservative form that does not describe at all richly the various solutions younger people have been reaching in practice.' 290 The Commonwealth further submits that expert anthropological evidence, even if unchallenged, cannot overcome significant gaps in the evidence given by indigenous witnesses. Thus in Yarmirr at first instance, Olney J declined to accept a claim that the Aboriginal applicants, by their traditional laws and customs, enjoyed exclusive possession, occupation and enjoyment of the waters of the claimed area, notwithstanding that the claim had been supported by the virtually unchallenged anthropological evidence: Yarmirr , at 563, 585. In the light of these authorities, the Commonwealth submits that the evidence of Professor Sutton and Ms Vaarzon-Morel cannot be used to rectify deficiencies in the evidence of the Aboriginal witnesses. 291 It is plainly correct that expert anthropological evidence is unlikely to cure certain kinds of gaps or deficiencies in evidence adduced from Aboriginal witnesses. If, for example, indigenous witnesses consistently disclaim a suggestion that their traditional laws and customs allow interests in country to be acquired in a particular manner, evidence to the contrary by an anthropologist is unlikely to carry a great deal of weight. This will be so even if the anthropologist's evidence is not directly challenged in cross-examination, since evidence from indigenous witnesses is normally regarded as providing the most reliable account of traditional laws and customs of the relevant people. 292 Depending upon the circumstances, however, anthropological evidence might well supplement the testimony of indigenous witnesses and, in that sense, fill in some evidentiary gaps. In the present case, for example, the applicants submit, with some force, that most of the Aboriginal witnesses experienced difficulty in providing full and coherent accounts of their customary practices in relation to country. This was by no means because they lacked knowledge or understanding of those practices. Rather, it reflected the fact that they were not accustomed to expressing the underlying concepts in a manner suited to a courtroom (even a 'courtroom' conducted on-country). The barriers to effective communication were compounded by the difficulty of translating questions and answers relating to those concepts to and from the dialects of the Western Desert. 293 In these circumstances, the anthropological evidence, if otherwise reliable, might assist in explaining the nature of the practices adopted in relation to country and the people who acknowledge and observe similar practices. An example concerns the evidence given by the Aboriginal witnesses as to the people who acknowledge and observe laws and customs similar to their own. Perhaps not surprisingly, most witnesses who were asked to address this topic had difficulty in identifying what the anthropologists described as the people of the Western Desert or of the eastern Western Desert. (An exception was Peter Wilson, a younger man educated at State schools who gave his evidence in English. He gave evidence of the extent of the Pitjantjatjara and Yankunytjatjara lands, the people of which share ceremonies and the Tjukurrpa stories.) Anthropological evidence might assist in completing the picture left unfinished by the Aboriginal witnesses, or at least enable the Court better to understand the extent to which laws and customs are shared by people identifying with different tracts of country. 294 The applicants submit that in assessing the evidence of the Aboriginal witnesses, account should be taken of the cultural barriers to effective communication in a courtroom setting. I accept that there are such barriers and that they must be given due consideration. They include the obvious difficulties of translating observations about traditional customs and practices from Pitjantjatjara and Yankunytjatjara into English and vice versa (notwithstanding the conscientious efforts of the skilled interpreters); the unwillingness of some witnesses, particularly the older people, to speak about certain sensitive topics; a tendency for the witnesses to give what non-indigenous observers might regard as incomplete answers to questions (particularly to the non-leading questions that are ordinarily required in examination-in-chief); and, on occasion, a refusal for no apparent reason to respond when pressed for answers to particular questions. The barriers to communication in the present case were compounded by the physical infirmities endured by some witnesses who, clearly enough, found it a strain to concentrate and answer questions, even for relatively short periods. 295 An example of the difficulty of communication occurred when Ms Kelly, for the Territory, asked Reggie Uluru an apparently simple question in cross-examination. Mr Uluru provided what appeared to be an unresponsive answer: 'MS KELLY: Is there a law, an Arnangu law, that says how a person becomes ngurraritja for a country? THE INTERPRETER [Discussion in language] Yes. MS KELLY: Can you tell us what that law is? THE INTERPRETER: [Discussion in language] When the people stay with the people in the area, the local area, then that person [Discussion in language] when the people might pass away from the local group here, pass away and I might go, go away and come back and visit and find that person is no longer here. MS KELLY: It doesn't appear that I can take that any further your Honour'. I did not attribute Mr Uluru's apparent unresponsiveness, at the time his evidence was given, to his unwillingness to co-operate with the questioner. Rather, I thought that the answer reflected his imperfect understanding of the question asked or, perhaps, a difficulty in translating his response adequately. 296 The contrast between the demeanour of witnesses when testifying in the courtroom and when giving evidence more informally on-country was sometimes striking. Nellie Armunta, for example, appeared uncomfortable in the courtroom and required frequent breaks. Her state of health was not good and giving evidence in that setting was clearly a strain for her. Yet when Armunta joined the entourage on-country at places such as Mantarurr (her father's country) and Katartitja, she showed remarkable energy and stamina for an elderly person whose health was clearly fragile. At one point during the site visit to Mantarurr, which involved some exertion in warm conditions, Armunta volunteered this comment: 'I can't see too well but ... I'm really happy today'. 365 Since the Commonwealth's submissions rely heavily upon Yorta Yorta (HC) , it is worth observing that the facts of that case were very different from those of the present case. Factual findings were made by the trial Judge in that case (see Yorta Yorta (HC) , at [95]) to the effect: 'that the society which had once observed traditional laws and customs had ceased to do so and, by ceasing to do so, no longer constituted the society out of which the traditional laws and customs sprang'. The trial Judge found that the traditional way of life of the indigenous people had been suppressed and that, as a consequence, their observance of traditional practices had disintegrated. There was also positive evidence, emanating from the Aboriginal people themselves, to the same effect. This included a petition by Aboriginal people in 1881 to the Governor of New South Wales, which lamented the fact that all land within tribal boundaries had been taken by the Government and white settlers. The petitioners expressed a desire to change their 'old mode of life' in favour of 'settling down to more orderly habits of industry': Yorta Yorta , at [117]-[120], per Olney J. No comparable evidence has been adduced in the present case. 366 I emphasise that the conclusion I have reached does not determine the separate question of whether the applicants have shown that the members of the compensation claim group acknowledged and observed the laws and customs relating to native title rights and interests pleaded in the Points of Claim. Nor does it determine whether the pleaded laws and customs are the traditional laws and customs of the Western Desert bloc. These issues require separate consideration (section 17 , below). 367 Before I can conclude that the Western Desert bloc continued as a society until at least the time of the compensation acts, it is necessary to consider the effect of migratory patterns within the Western Desert. The evidence in the present case suggests that population movements in the Western Desert occurred well before European settlement. Professor A P Elkin, for example, observed in his 1939 study of 'Kinship in South Australia' that: '[t]he Aborigines of western South Australia have been in a continuous state of migration southwards for some decades; a movement which I believe was in progress before the coming of the white man'. (1939) 10 Oceania 196, at 203. In the same study, Professor Elkin noted that the major population movement had been from the Musgrave and Everard Ranges to the south, but seldom to the north 'until in quite recent decades': 'Under pressure of droughts and at best constant desert conditions the groups pressed towards the south, seldom if ever to return, lengthening the mythological tracks and cutting themselves off from the spread of new forms and social and kinship organization and terminology'. (1940) 10 Oceania 295, at 305. 368 These observations are consistent with Professor Sutton's own opinion, recorded in his published works, that the Western Desert is the region of Australia that seems to have experienced the greatest demographic instability at the time of colonisation. He attributes this state of affairs to the ecological uncertainty that people faced, before the water bores were introduced and imported food became available. Professor Sutton also accepts that 'incursive movements' to the east and southeast of the Western Desert occurred during the earliest colonial phase: P M Sutton, Native Title in Australia: An Ethnographic Perspective (2003), at 143. 369 In 1930, Elkin conducted a ten month study of 'The Social Organization of South Australian Tribes'. For most of that period he was based at Oodnadatta, which is a considerable distance south of Uluru, although it appears that he ventured as far north as Ernabella. Elkin reported that he had seen 'natives in this region ... living in a totally uncivilised manner'. He noted that these people had experienced 'a specially hard time during the past ten years on account of a severe drought' and that as a result migration into the areas of white settlement had increased. Further investigations east, west and south (but not north) had shown that: 'the depopulation of this region is very far advanced, and that the causes are on the one hand, the low rainfall and poverty of the country, and, on the other hand, the comparative attractiveness of life in proximity to white settlement'. (1931) 2 Oceania 44 , at 46. Professor Elkin also noted that his investigations around Ooldea (on the southern fringes of the Western Desert) suggested that Aboriginal people had travelled there from the direction of the Everard Ranges. 567 In De Rose (FCA) , O'Loughlin J rejected (at [553]) a submission that the grant of a pastoral lease by the Crown necessarily extinguishes any native title right to control access to the land or to decide how the land is to be used. His Honour concluded that although the rights and obligations contained in pastoral leases gave superior rights to the lessee with respect to matters of access and use, that did not mean that all native title rights of access and control were necessarily extinguished. His Honour acknowledged the comment made by the majority in Ward (HC) , at [417] that: 'the grants of the respective pastoral leases were inconsistent with the continued existence of the native title right to control access to and make decisions about the land'. However, he took that observation: 'to constitute a statement of the position between the native title claimants on the one hand and the pastoralist on the other. I do not see that it necessarily takes away the residual rights of control of access and use as between the holders of native title themselves and any other Aboriginal people who seek access or use of the claim area in accordance with the traditional laws and customs'. 568 An appeal from O'Loughlin J's judgment was allowed, but no challenge was made to his Honour's ruling on this point. The native title determination ultimately made in De Rose (FC) (No 2) (at [171]) included a native title right to: 'make decisions about the use and enjoyment of the determination area by Aboriginal people who recognise themselves to be governed by the traditional laws and customs acknowledged by Nguraritja [traditional owners] ' (par 3(l)). The determination also acknowledged a native title right to maintain and protect sites and places on the determination area of significance to nguraritja (to use the spelling adopted in De Rose (FC) (No 2) ) under their traditional laws and customs (par 3(j)). Both native title rights were expressed to be subject to the rights and interests granted by the pastoral leases. The latter prevailed over the native title rights and interests, but did not extinguish them (par 10). 569 Paragraph 3(l) of the determination made in De Rose (FC) (No 2) follows closely the corresponding provision in par 5(e) of the determination made in Ward (FC) (No 2) . At one point in the present case, the Commonwealth seemed to suggest that par 5(e) of the determination in Ward (FC) (No 2) had been made by consent and therefore had no value as a precedent. However, the Full Court in that case specifically said this (at [27]): 'The argument is that the right to make decisions about the use and enjoyment of the area cannot be recognised because the right to control access was extinguished by the grant of the pastoral leases. However, there is a clear distinction between a right to control access, generally and as a matter of law, and a right to make decisions about the use and enjoyment of land by Aboriginal people who will recognise those decisions and observe them pursuant to their traditional laws and customs. The continued existence of the former right is incompatible with a pastoral lease entitling the pastoral lessee to determine who has access to the land; the latter is not. We think subcl (e) should remain'. It was presumably this paragraph in the judgment that prompted the Commonwealth to submit formally that Ward (FC) (No 2) had been incorrectly decided.


case_outcome: cited

case_text: Mr Underwood gave opinion evidence relating to the level of fees charged to the investors. In 2001 the Commissioner had asked him to inspect the plantation the subject of the Kununurra tropical forestry project also known as the AllRange Project and to provide a report on its progress. That project, which had been earlier considered and rejected by Mr Lenzo, also involved the growing of sandalwood in the Ord. Mr Underwood had formed the opinion that the fees charged to the investors in that project for the purchase of sandalwood seedlings and host seedlings were excessive and gave evidence to that effect in Federal Court proceedings, Puzey v Commissioner of Taxation [2002] FCA 1615 ; (2002) 51 ATR 616. In relation to the EKS project however, he was not of the same opinion. He said that investors in that project were charged fees totalling $60,000 per hectare for services performed by EKS as manager of the project as outlined in the lease and management agreements. The services involved: 1. Planting and raising Santalum Album seedlings or trees. 2. Planting on the invested areas as soon as practicable after execution of the relevant lease and management agreement sufficient Santalum Album seedlings or trees. 3. Planting on the investors' areas such other trees as might reasonably be necessary or required to enable or encourage growth of, or protect, the Santalum Album seedlings. 4. Cultivating, tending, culling, pruning, fertilising, spraying, irrigating and otherwise caring for the trees as and when required. 5. Collecting seeds and propagation material from the investors' areas. 6. Keeping in good repair access roads to the investors' areas. 7. Using all reasonable measures by fumigating and poisoning for extermination and keeping the investors' areas free from vermin. 8. At all times maintaining in good repair and condition fire breaks and irrigation channels in and about the investors' areas. 9. Maintaining the investors' areas according to good forestry practices; and 10. Paying all costs and expenses of establishing and maintaining the plantation. Based on his experience and knowledge of other similar Indian sandalwood projects issued by EKS and an organisation he referred to as ITC, Mr Underwood considered that the fees charged to investors were similar across all projects. The project managers of the 2006 ITC sandalwood project charged investors a fee of $3,520 per 0.04 ha for establishment. This equated to $88,000 per hectare. On that comparison, he regarded the fees charged to investors in the project currently under consideration as not excessive. 58 Mr Underwood was cross-examined in relation to his report in the prospectus. He agreed that as of March 1998 there had not been any international sales of Indian sandalwood grown in Australia of which he knew. He was also cross-examined about the adequacy of the provision for replanting and infilling where planted trees had died. He said in his experience most forestry projects nearly always involved an expectation that there would be some need for replanting in the second year. He did not himself inquire as to whether there was such a provision in relation to the EKS project. He just naturally assumed that it would happen. He agreed that the EKS project had suffered early mortality among seedlings in the first wet season immediately after planting. As to the risks which he perceived associated with sandalwood plantations he said: The tricky aspect with growing Indian sandalwood is that it requires hosts that cut in at different times of the rotation and until you've grown a plantation through to maturity and done everything, you're still basing your experience on the research plots rather than on actual plantations and I've made that clear in every report I've written, that this is a risk that investors need to know about. He explained the concept of the host in the course of cross-examination. The sandalwood is a parasitic or semi-parasitic tree which attaches its roots to the roots of other trees. When a sandalwood plantation is grown from seedlings through to maturity it is necessary to establish a range of different host species during the 15 year period of the growth. The host trees are planted in amongst the sandalwood, adjacent to the sandalwood trees. Progressively the sandalwood kills the trees of the host species and sucks them dry so that other host species trees are needed to replace them. 59 I accept Mr Underwood's evidence that the set up and management of the EKS plantation project indicated that it was properly conceived and generally properly managed. The question whether fees charged to investors were "excessive" involves normative judgments the basis of which needs to be made clear in order to establish their relevance. In a case such as the present, if the level of entry fees paid is able to be characterised, on objective criteria, as inflated beyond what is relevant to the interests and services being acquired, and the costs, direct and indirect, of providing them, then that fact, in combination with others, may support the conclusion that a dominant purpose for entering the scheme was to acquire a tax benefit. In this case Mr Underwood's opinion about the fees was based upon the range of services provided and in that sense was properly based. Using a criterion of somewhat lesser reliability it invoked comparisons with other Indian sandalwood projects. I accept overall that Mr Underwood did have a proper basis for his opinion that the fees charged were reasonable. Such opinions however are necessarily more qualitative than quantitative in character. 60 Evidence was also called from Mr Anantha Padmanabha who, along with Mr Underwood, had prepared a report which was included in the prospectus. He has over 43 years experience in forestry in India predominantly dealing with sandalwood. There was no challenge to his qualifications or expertise. 61 Mr Padmanabha said the sale price of sandalwood in India over the period from 1990 to 2006 has increased from US$4,000 per ton to US$77,000 per ton. That represented an average increase of 23% per annum. In his opinion the increasing price trend will continue due to the rapid reduction in the supply of Indian sandalwood caused by dwindling production. Demand for the wood is increasing in the domestic market of India and in international markets. The gap between supply and demand is also dramatically increasing.


case_text: Counsel for Mr Lenzo made written closing submissions about the admissibility of the evidence of Messrs Sammon, Begley and Padmanabha. He relied upon the decision of the Full Court in Commissioner of Taxation v Sleight [2004] FCAFC 94 ; (2004) 136 FCR 211. The Court there upheld the Commissioner's application of Pt IVA. Both Hill and Carr JJ referred to the significance of poor projected financial returns from the particular scheme. 82 The case concerned an investment in a tea tree oil farming project. The Court held, having regard to the eight matters listed in s 177D(b) of the ITAA 1936, that the taxpayers had entered into and carried out the investment scheme for the purposes of obtaining a tax benefit. The Court had regard to the commercial uncertainty of the scheme in concluding that its tax purposes predominated over its commercial purposes. 83 In considering the manner in which the scheme was entered into or carried out for the purposes of s 177D(b)(i), Hill J observed that the commercial investment in tea trees was attendant with risk. Without the tax benefits which the prospectus predicted "the commercial returns were far from encouraging" (at [75]). Carr J, in considering the "form and substance of the scheme" for the purpose of s 177D(b)(ii) referred to "what can only be described as miniscule projected returns over a long period of time from a venture which on all the evidence involved significant risk so described in the Prospectus" (at [216]).


case_text: At first instance in Calder v Commissioner of Taxation (2005) 59 ATR 655, Nicholson J relied upon expert evidence of the poor projected returns (when properly calculated before tax and before finance) as a significant factor attracting the application of Pt IVA: However as to factor (2) Mr Langridge's evidence was that the Project relied upon the tax deductibility and effect of the initial payments and the gearing up provided by the loan to show any rate of return. In those circumstances it cannot be objectively found that the dominant purpose of the applicant's entry into the scheme was to enable the applicant to make a commercial investment: the tax benefit was the key to the commerciality of the scheme. 85 Counsel for Mr Lenzo submitted that the evidence of Messrs Sammon and Begley confirmed that the internal rate of return forecast was 13.82% per annum before tax and before finance where the applicant pre-pays the maintenance and rent fees. Their unchallenged evidence was that the projected returns from the project were commensurate with the risks. Mr Sammon's unchallenged evidence was that the project was an "Investment Grade" investment without any reliance being placed on tax benefits and that the project showed strong financial returns on a before tax and before finance basis. 86 Counsel also pointed to Mr Padmanabha's evidence of an increase in demand for Indian sandalwood and the increase in average price. He also submitted evidence that the EKS project was suitable to Mr Lenzo's particular financial circumstances and that it did not rely on tax benefits and financing to show an acceptable return was relevant to whether Mr Lenzo could be regarded as having had a dominant tax purpose. Such evidence, it was submitted, was an objective fact to which regard must be had in considering whether Mr Lenzo had a dominant tax purpose and, in particular, in considering the manner in which the scheme was entered into or carried out, the form and substance of the scheme and the change in the financial position of Mr Lenzo that had resulted, would result, or might reasonably be expected to result, from the scheme.


case_text: Assuming there was a tax benefit, s 177D requires attention to the question whether, having regard to the eight factors listed in para (b) "it would be concluded that" Mr Lenzo or any other person who entered into or carried out the scheme or any part of it "did so for the purpose of enabling [Mr Lenzo] to obtain a tax benefit in connection with the scheme". The purposes to be considered are those attributable to "relevant persons who entered into or carried out the scheme or any part of the scheme". Section 177D(b) is not concerned with attributing a purpose to "the scheme": Commissioner of Taxation v Hart [2004] HCA 26 ; (2004) 217 CLR 216 at [63] . The test of purpose is objective and not to be answered in whole or in part by reference to actual subjective purposes. If there is more than one purpose to be imputed, the question is whether the taxation benefit purpose was the dominant purpose. By that is meant the "ruling, prevailing, or most influential purpose": Federal Commissioner of Taxation v Spotless Services [1996] HCA 34 ; (1996) 186 CLR 404 at 416. The importance of setting aside subjective purposes whether they favour the taxpayer or the Commissioner's position was emphasised in the joint judgment of Gummow and Hayne JJ in Hart 217 CLR at [65] where, speaking of the structuring of the loan in issue in that case they said: Of course the loan was structured in the say it was in order to achieve the most desirable taxation result. But those are statements about why the respondents acted as they did or about why the lender (or its agent) structured the loan in the way it was. They are not statements which provide an answer to the question posed by s 177D(b). That provision requires the drawing of a conclusion about purpose from the eight identified objective matters; it does not require, or event permit, any inquiry into the subjective motives of the relevant taxpayers or others who entered into or carried out the scheme or any part of it. 121 The question posed by s 177D(b) is holistic. Each of the eight specified factors must be taken into account. But the decisionmaker, being the Commissioner, or a judge on appeal from the Commissioner, is not required to award points for each factor like a judging panel in an ice skating competition. The enumerated factors identify essential elements associated with entry into and implementation of the scheme in question and are to be considered together. Having regard to the submissions of both parties, I make the following observations in respect of each of the eight factors listed in s 177D(b): (i) As to the manner in which the scheme was entered into or carried out. 122 The marketing of the scheme as set out in the prospectus supports the proposition that it was to be entered into as a serious commercial project. On Mr Sammon's evidence it did not need to rely upon tax benefits in order to provide a sufficient financial return to qualify as an investment grade product. I do not consider that the evidence indicates any over-emphasis on tax benefits to be derived from the scheme. The marketing of any commercial investment product can draw attention to its tax benefits by rendering the gaining of those benefits the dominant purpose of the product. In this case, in my opinion, the tax benefits as marketed were subordinate to the reasonably based commercial returns albeit those returns, being high, carried a corresponding level of risk. 123 A second relevant aspect of the manner in which the scheme was entered into was said by the Commissioner to be related to the timing of Mr Lenzo's execution of the documents. This falls for consideration under the factor identified in s 177D(b)(iii). I consider that the fact that the scheme was entered into on 30 June 1998 and the execution of prepared proforma documents occurred on that date can be taken as indicative of a desire to obtain a tax benefit for the 1998 year of income. But while it goes into the balance in support of the Commissioner's contentions as to dominant purpose, it is not a factor to which, in this case, I attribute great weight. If there is a significant commercial benefit to be derived from an investment and an associated tax benefit, entry into the investment scheme on 30 June 1998 with a view to obtaining the tax benefit in that year is entirely consistent with a predominantly commercial purpose. 124 The round-robin upon which much emphasis was placed by the Commissioner carries with it the negative connotations traditionally associated with such apparently artificial transactions. I accept that Mr Lenzo's lack of awareness of that transaction is immaterial. However the significance of it for the assessment of a dominant purpose of obtaining a tax benefit for Mr Lenzo is not apparent. In a sense it overlaps with the question whether a tax benefit was obtained given the alternative of external financing to individual growers. It was not as though they were being offered non-recourse loans by Arwon. While the round-robin is a factor which in combination with other matters might support an inference of a dominant tax purpose, it is not determinative of the existence of such a purpose. Moreover it may be seen as an incident of the much more significant commercial purposes achievable with or without a tax benefit. 125 The Commissioner also pointed to the small initial outlay of $535 in the 1998 year of income and the obligation to make a payment of only $7,506 on 30 September 1998. He contended that the savings of $10,112.25 from the total tax deductions claimed of $20,850 exceeded the amount of the payment required on 30 September 1998. He went on to refer, under this heading, to the effect of the various agreements on Mr Lenzo's ability to claim tax deductions in 1999 and 2000. He also argued that only the amount of $7,506 actually paid out of the $20,315 nominally contributed by Mr Lenzo in terms of his liabilities was ever available to the manager for the pursuit of the commercial objectives of growing, harvesting and selling the Indian sandalwood. He contended that the amount of the initial maintenance fees and rent payable by Mr Lenzo was not related to the pursuit of those commercial objectives but reflected a desire to enable him to achieve tax savings in excess of the amount of his initial cash outlay in relation to the project. At one point in the submissions the Commissioner seemed to be slipping into a subjective test of purpose. 126 It was pointed out by counsel for Mr Lenzo that the $7,506 was paid from his own cash funds. His 1998 assessment issued in mid-November did not result in a tax benefit to him. Counsel submitted that there was no evidence that the borrowed funds in 1998 were not "available" for the management of the wood lots. Counsel pointed to financial statements of the EKS project manager which showed substantial funds available in the 1998 year. In 1998 and 1999 the EKS project manager had sufficient funds available for the management of the allotments. 131 It is true that but for the application of Pt IVA Mr Lenzo's deductions would be allowable under s 8-1 of the 1997 Act as business expenditures. It is plain however that a mere fact that a taxpayer claims a tax benefit does not mean that Pt IVA applies. As Gummow and Hayne JJ said in Hart [2004] HCA 26 ; 217 CLR 216 at [53] : The bare fact that a taxpayer pays less tax, if one form of transaction rather than another is made, does not demonstrate that Pt IVA applies. Simply to show that a taxpayer has obtained a tax benefit does not show that Pt IVA applies. (v) Any change in the financial position of the relevant taxpayer that resulted, will result, or may reasonably be expected to result from the scheme 132 The Commissioner simply submitted under this heading that the financial position of Mr Lenzo was improved by the tax savings which the scheme generated. He received immediate tax savings which exceeded his cash outlays in respect of the scheme in the 1998 and 1999 years of income. In the following years of income he would receive the benefit of deductions for interest accrued but unpaid and indemnity fees which would all but offset the actual cash outlays in respect of the indemnity fees. His exposure to further cash outlays would turn upon the success or otherwise of the plantation and the operation of the indemnity agreement at the completion of the scheme. Counsel for Mr Lenzo submitted that this factor is to assessed at the time that the relevant transactions were entered into. 133 The change in the financial position of Mr Lenzo that must be considered under (iv) is not limited to tax benefits but also the prospect of a commercial return which he has acquired by the investment. The evidence was clear that this was a real prospect although attended by the usual risks of any agricultural cultivation scheme. The forecast financial returns for this project were described as "attractive on a pre-tax basis". The forecast returns cannot, in my opinion, be dismissed as merely speculative. There was, on the evidence, a reasonable prospect of a return. (iv) Any change in the financial position of any person who has or has had, any connection (whether of a business, family or other nature) with the relevant taxpayer, being a change that has resulted, will result or may reasonably be expected to result, from the scheme.


case_outcome: referred to

case_text: question arises as to whether this later correspondence, which includes correspondence with third parties, and the statements in the autobiography, may be taken into account to determine the question of Ms Sinclair's intention when she submitted the work to the Victorian Girl Guides in 1934: Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 550 551 per Gleeson CJ. The question of law which arises in relation to the entry of "Kookaburra" in the competition in 1934 is one of construction of the rules of the competition. The question is whether, in the event that Ms Sinclair's entry was governed by the rules, the rule which provided that all matter entered was to become the property of the Victorian Girl Guides was effective to assign the copyright in the work to that Association. The deeds of assignment of copyright The remaining issue arises from the assignments of copyright obtained by Larrikin from the Public Trustee and the Libraries Board. It is true that in XIVth Commonwealth Games at 550 551, Gleeson CJ had regard to subsequent communications between the parties as a factor in determining whether the parties to the alleged contract evidenced an intention to make a concluded bargain. But that proposition is limited to communications between the actual parties to the alleged contract. His Honour stated that the position is not so clear with respect to internal memoranda or communications with third parties. Here, most of the communications referred to were between Ms Sinclair and third parties. The documents were contained in a joint tender bundle and were admitted without objection. Nevertheless, I have come to the view that they ought not to have been admitted as evidence. To admit them would be contrary to the principle stated in Cross on Evidence at [39290] that: [T]he parties' subsequent conduct may be relied upon to establish the existence of [the] contract ... This statement emphasises the fact that it is the communications between the parties themselves which are admissible, rather than statements made by one party to a stranger to the alleged contract. Even if the evidence of communications with third parties were admissible, it could be given little weight because the communications took place 20 to 40 years after the date on which "Kookaburra" was entered in the competition.


case_text: there is a well-known distinction in the law of copyright between the incorporeal right to the intellectual property, and the right to the physical property in a work: Interstate Parcel Express Co Proprietary Limited v Time-Life International (Netherlands) B.V. [1977] HCA 52 ; (1977) 138 CLR 534 at 550. It seems to me that the word "matter" is more apt to describe the physical property consisting of the manuscripts rather than the copyright in the works. Second, there are good practical reasons why the Victorian Girl Guides might have wanted to retain the material object of the works, rather than become a bailee. The works would be likely to have been needed for archiving purposes and the persons conducting the competition would hardly have been likely to want the responsibility of returning the physical manuscripts to the entrants.


case_text: the recitals to the tripartite Deed were "informal admissions". As was pointed out by J. D. Heydon in Cross on Evidence at [33420], such admissions may always be contradicted or explained by the maker, and it is for the Court to determine on the evidence what weight is to be given to such admissions. This was also made clear by the High Court in Lustre Hosiery Limited v York [1935] HCA 71 ; (1935) 54 CLR 134 where Rich, Dixon, Evatt and McTiernan JJ said at 138 139: No doubt an admission made by a party as to the correctness of a fact is admissible in evidence notwithstanding that the party has no direct knowledge of the fact and must rely for his belief upon the statements of others, or upon inferences from circumstances which he knows, or which have been reported to him. But such an admission may indicate a state of mind varying from a firm belief based upon a thorough investigation ... down to a wavering preference for one of two or more possible hypotheses none of which have been tested or determined. It is apparent that the admissibility of the evidence must be distinguished from its sufficiency to establish or support an affirmative conclusion in favour of the party who tenders it, when the burden of proof lies upon that party. It does not follow that, because such evidence is admissible, it is enough to prove the issue. Here, I accept the evidence of Mr Lurie as to the circumstances in which he signed the Tripartite Deed. It is obvious from the correspondence which preceded the Deed that Larrikin was a stranger to the dispute between the Public Trustee and the Libraries Board as to the ownership of the copyright. He accepted the Deed in good faith. It was of no moment to him because it provided that Larrikin obtained title through the Libraries Board.


case_title: Murray v King (1984) 4 FCR 1

case_text: is true, as the respondents submitted, that the authorities establish that no particular form of words is necessary to effect an assignment of copyright: see Murray v King (1984) 4 FCR 1 at 7, 13. However, in my view, this does not overcome the objections that I have listed above. This is because in order for the authorities such as Murray v King to apply, there must be some intention to assign copyright. As I have indicated above, in my view, it cannot be inferred on the evidence that either Ms Sinclair or the Victorian Girl Guides had the intention to effect an assignment of copyright. In any event, I do not consider that the words in question in the present case are sufficient to disclose, on an objective consideration, an intention to effect an assignment of copyright. The effect of Mr Catterns' submissions was that, in the Tripartite Deed of 14 March 2000, the Public Trustee and Larrikin admitted that the earlier Deed of Assignment was ineffective.


case_text: test is that there must be shown to be more than "conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture": see Nominal Defendant v Owens (1978) 22 ALR 128 at 132, and the authorities there referred to. Here, in the absence of an entry form or any evidence that Ms Sinclair had knowledge of the terms of the competition on submitting her entry, it is equally probably that Ms Sinclair learned of the existence of the competition without seeing the circular or the rules. She had an active interest in the Victorian Girl Guides' movement and it is equally probable that she learned of the competition through her association with the Movement. It is also equally probable that there were no formal documents constituting entry forms and that entries were submitted informally, by lodgement of the composition, the entry fee, and details of the entrant's name and address, if not already known to the Victorian Girl Guides.


case_text: support can be gained from the well-known "ticket cases" in the law of contract. Those cases establish that where an exemption clause is contained in a ticket, and the other party is not actually aware of the terms of the clause when the contract was made, the party seeking to rely on it cannot do so unless, at the time when the contract was made, reasonable notice was given to the other party: see Seddon and Ellinghaus, Cheshire and Fifoot's Law of Contract (9 th Australian Edition, 2008) at [10.28] and [10.70]; Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32 ; (1988) 165 CLR 197 at 228-229. This principle has no application here, because as the authors of Cheshire and Fifoot observe at [10.71], it is necessary to determine with some precision at what point the contract was made. That cannot be done in the present case. What the composers and EMI would need to establish is that Ms Sinclair submitted her entry after the publication of the circular or after the July edition of Matilda and that each of those publications constituted reasonable notice. Having regard to Ms Sinclair's close connection with the Victorian Girl Guides, it is mere conjecture to say that this is what happened. It is equally probable that she heard of the competition by word of mouth and submitted her entry before the publication of those documents. Accordingly, it has not been established on the evidence that Ms Sinclair entered into a contract in writing on the terms contained in the circular, or, at least, that the contract included the term which provided for all "matter" to be the property of the Victorian Girl Guides. It follows that there was no assignment in writing to satisfy the requirements of s 5(2) of the British Copyright Act .


case_outcome: followed

case_text: In my view this is not a proper approach to the present application. The authorities relating to the proper construction and effect of s 31A of the Federal Court of Australia Act were exhaustively reviewed by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 at [31] [48]. His Honour stated the relevant principles at [45] and they may be summarised as follows: • In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal. • There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing. • Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects. • Unless only one conclusion can be said to be reasonable, the discretion under s 31A cannot be enlivened. 31 I do not think that this approach conflicts with the provisions of s 31A(3). 32 It is true that summary dismissal applications are to be determined on the pleadings and any evidence before the Court; but at the heart of the exercise is the assessment on incomplete materials, of the prospects of success if the matter proceeds to a final hearing; Boston Commercial at [38], [48]. 33 It would be wrong to determine the application on a narrow approach to the pleadings where, as here, there is evidence, albeit incomplete, and perhaps at this early stage, ambivalent, which may at a final hearing, and with amended pleadings, produce a verdict for the applicant.


case_text: The knowledge which is required to give rise to a claim of accessory liability is actual knowledge. Constructive knowledge is not sufficient; Yorke v Lucas at 667 668, 670; Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60 ; (2004) 218 CLR 592 at [60] . See also Richardson & Wrench (Holdings) Pty Ltd v Ligon No 174 Pty Ltd (1994) 123 ALR 681 at 693.


case_title: Merrett v Babb [2001] QB 1174

case_text: Once it is accepted that there is a question to be tried as to whether Mr McDonald prepared and signed the Valuation, the case is very similar to the decision of the English Court of Appeal in Merrett v Babb [2001] QB 1174. 35 In that case a valuation report was signed by an employee of a firm which ceased to carry on business and the principal of which went into bankruptcy. The report was prepared for a building society that supplied a copy of the report to the purchasers of the property, omitting all reference to the name of the employee signatory and his firm. 36 The majority Justices, May LJ and Wilson J, held that the employee owed a duty of care to the purchasers. What underlies their observations at [44] and [61] are the concepts of assumption of responsibility and known reliance. 37 The facts deposed to by Mr Ewing in [2], [5] and [6] give rise to an arguable case in accordance with this principle.


case_title: Richardson & Wrench (Holdings) Pty Ltd v Ligon No 174 Pty Ltd (1994) 123 ALR 681


case_text: The other basis on which the cross-claim is attacked is that it claims accessory liability under s 75B of the Trade Practices Act without satisfying the requirements of knowledge of the falsity of the representation which is said to underpin the claims. Thus, it is said that this aspect of the cross-claim cannot establish the necessary ingredients of the cause of action as stated by the High Court in Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661. 18 The evidence included a copy of the Valuation bearing the signature of Mr Ewing and the description of Mr McDonald below the signature purportedly of Mr O'Boyle as I have described above. 19 Mr McDonald's affidavit states in [5]: 'The signature appearing above my printed name is not mine. I did not sign the valuation report. I did not prepare the valuation report.' 50 The knowledge which is required to give rise to a claim of accessory liability is actual knowledge. Constructive knowledge is not sufficient; Yorke v Lucas at 667 668, 670; Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60 ; (2004) 218 CLR 592 at [60] . See also Richardson & Wrench (Holdings) Pty Ltd v Ligon No 174 Pty Ltd (1994) 123 ALR 681 at 693.


case_outcome: approved

case_text: The applicant is an Australian company. It previously held Australian Petty Patent No AU 200036357 and presently holds Australian Patent No 775427. The subject matter of both patents is a syringe designed so that the needle retracts after use or the mechanism for achieving that result. Both patents were issued pursuant to the Patents Act 1990 (Cth) (the " Patents Act "). They are largely irrelevant for present purposes. The respondent is an American company which holds American and Australian patents concerning technology designed to achieve the same, or a similar, result. The respondent's relevant Australian patent is described in the further amended statement of claim as Australian Patent No AU-A-59724/98. It seems, however, that it is now Australian Patent No 701878. I am presently concerned only with an application pursuant to s 128 of the Patents Act . For the reasons given by Cooper J in U&I Global Trading (Australia) Pty Ltd v Tasman-Warajay Pty Ltd (1995) 60 FCR 26 at 31-32, a threat, made prior to grant, of infringement proceedings after grant may be a threat for the purposes of s 128. At the hearing it was not suggested that anything turned upon the time at which the respondent's patent was granted. Section 128 provides: '(1) Where a person, by means of circulars, advertisements or otherwise, threatens a person with infringement proceedings, or other similar proceedings, a person aggrieved may apply to a prescribed court, or to another court having jurisdiction to hear and determine the application for: (a) a declaration that the threats are unjustifiable; and (b) an injunction against the continuance of the threats; and (c) the recovery of any damages sustained by the applicant as a result of the threats. (2) Subsection (1) applies whether or not the person who made the threats is entitled to, or interested in, the patent or a patent application.' 2 The term 'infringement proceedings' is defined in Sch 1 to mean 'proceedings for infringement of a patent' . The term 'patent' is defined as 'a standard patent or an innovation patent' . Prior to the abolition of petty patents, the definition referred to a 'standard patent or a petty patent' . It is accepted that the threatened infringement proceedings mentioned in s 128 must be threatened infringement of a patent held pursuant to the Patents Act . 3 The applicant asserts that the respondent has threatened infringement proceedings and seeks relief pursuant to s 128. Those alleged threats appear in two letters from Messrs Locke, Liddell & Sapp, American attorneys acting for the respondent, addressed to officers of the applicant. It is necessary that I set out the content of those letters in full. The first is dated 5 October 2004 as follows: ' Re: Manufacture of Medical Devices Having Retractable Needles Our Ref: 75329.00037 Dear Mr. Taske: We represent Retractable Technologies, Inc. ("RTI") in matters relating to intellectual property and litigation, and are writing this letter on behalf of our client. We have recently learned that your company may be sourcing medical devices having retractable needles through a division or commonly owned or controlled affiliate of Double Dove, a Chinese company with which RTI has had an exclusive manufacturing agreement in effect for more than a year. Under the terms of the manufacturing agreement between RTI and Double Dove, Double Dove has expressly agreed not to manufacture any needle product that utilizes automated retraction technology of any type for any entity other than RTI without prior written consent from RTI. RTI has not given any such consent. Furthermore, you should be aware that Double Dove has possession of confidential and trade secret information of RTI, and Double Dove has expressly agreed not to use or disclose any such confidential information or trade secrets except for the benefit of RTI. Considering these facts, you can appreciate that RTI is prepared to take any legal action necessary to protect its patented and unpatented technology, its products and its proprietary position with respect to Double Dove and any company with which Double Dove or its affiliates may be dealing. Recently, for example, RTI successfully invalidated Double Dove's own Chinese patent rights for syringes having retractable needles. RTI has also recently achieved other great successes in protecting its intellectual property rights throughout the world. If our information regarding sourcing of OMI products through entitles related to Double Dove is incorrect, then we regret any unwarranted adverse inference that may be drawn from this letter. On the other hand, if future revelations indicate that Double Dove has violated any aspect of its obligations to RTI by impermissibly assisting others in the manufacture of prohibited devices, RTI intends to pursue all available remedies against both Double Dove and any entity with which Double Dove may be cooperating. Please provide us your written assurances at your earliest opportunity that OMI has had no contact with Double Dove or any of its affiliates, and is not sourcing medical devices having retractable needles through any Chinese entity related to any way to Double Dove.'


case_text: At [208]-[211] of her reasons for judgment in JMVB Enterprises Pty Ltd v Camoflag Pty Ltd (2005) 67 IPR 68 at [208]-[211] Crennan J identified various propositions emerging from s 128 as follows: '208. The aggrieved party, ... must first establish the making of a threat ... . The threat must be made in Australia, in that it must be received in Australia and relate to an Australian patent or design: ... . 209. A threat arises where the language, by direct words or implication, conveys to a reasonable person that the author of the letter intends to bring infringement proceedings against the person said to be threatened ... . A threat may arise without a direct reference to infringement proceedings ... . However, a communication merely notifying a person of the existence of a patent or a patent application, together with a statement that any suggestion that the recipient is entitled to replicate the invention is not maintainable, or a communication seeking confirmation that no improper or wrongful use or infringement of the patent has come to the recipient's attention is not a threat ... . 210. Once a threat has been established it is prima facie unjustifiable unless the person making the threat establishes that it was justified: ... The court may grant the relief applied for unless the person threatening infringement proceedings establishes that the relevant conduct infringes or would infringe a valid claim of a patent ... . Ultimately, the grant of relief is discretionary ... . 211. A threat can be made by means of a letter from a legal representative ... .' 6 At the end of these reasons I will deal with the question of whether relief pursuant to s 128 is discretionary in the sense suggested at [210]. 7 Pursuant to s 13 of the Patents Act a patent confers upon a patentee the exclusive right to exploit the invention. The term 'exploit' is defined in Sch 1 as follows: ' exploit , in relation to an invention, includes: (a) where the invention is a product--make, hire, sell or otherwise dispose of the product, offer to make, sell, hire or otherwise dispose of it, use or import it, or keep it for the purpose of doing any of those things; or (b) where the invention is a method or process--use the method or process or do any act mentioned in paragraph (a) in respect of a product resulting from such use.' 39 Again curiously, although his Honour appears to have been referred to the decision in Steinhardt , he seems not to have been referred to the passage concerning discretionary relief to which I have referred. Finally, in JMVB , Crennan J observed at [210]: 'Once a threat has been established it is prima facie unjustifiable unless the person making the threat establishes that it was justified ... . The court may grant the relief applied for unless the person threatening infringement proceedings establishes that the relevant conduct infringes or would infringe a valid claim of a patent ... Ultimately, the grant of relief is discretionary: Townsend Controls at 475.' Her Honour's decision was pursuant to the Patents Act. I have not been referred to any cases to contrary effect under that legislation. Her Honour seems not to have been referred to the relevant passage in Steinhardt .


case_text: The conclusion as to whether a document amounts to a threat of infringement proceedings is essentially one of fact. See Brain v Ingledew Brown Bennison and Garrett (A Firm) [1996] FSR 341 at 349. The meaning of an alleged threat is to be decided in accordance with the understanding of an ordinary recipient in the position of the applicant, reading the letter in the normal course of business. See Brain v Ingledew Brown Bennison and Garrett (A Firm) (No 3) [1997] FSR 511 at 521. In that case at 523, and in Prince PLC v Prince Sports Group Inc (1997) 39 IPR 225 at 233, the court appears to have treated the recipient's understanding of the alleged threat as relevant to its interpretation. However the matter seems to have been, at best, marginally relevant. I turn to the letters.


case_title: Brain v Ingledew Brown Bennison and Garrett (A Firm) (No 3) [1997] FSR 511


case_title: Prince PLC v Prince Sports Group Inc (1997) 39 IPR 225


case_text: The letter of 5 October 2004 addresses a number of subjects without seeking to distinguish clearly between them. Thus, in para 1, the respondent's attorneys indicate that they represent it 'in matters relating to intellectual property and litigation ...' . This reference, by itself, might be understood as indicating the possibility of litigation in defence of intellectual property rights. The term 'intellectual property' is appropriate to describe rights held pursuant to a patent. Thus it might be said that the first sentence itself contemplates the possibility of litigation to protect rights under a patent, the most likely type of litigation being infringement proceedings. However it is important to note that a solicitor who indicates an intention to advise a client to commence infringement proceedings does not threaten for the purposes of s 128. See Earles Utilities Ltd v Harrison (1935) 52 RPC 77 at 80. 11 The writer then asserts that the applicant may be 'sourcing' medical devices having retractable needles from a Chinese company called Double Dove, with which company the respondent claims to have 'an exclusive manufacturing agreement' . Clearly, the matter of concern is the acquisition of retractable needles. The second sentence in para 1 suggests breach of the exclusive manufacturing agreement between the respondent and Double Dove. To this point there has been no assertion of intellectual property or of patents held in connection with retractable needle technology. 12 The second paragraph asserts that the exclusive marketing agreement prohibits Double Dove from manufacturing any needle product utilizing automated retraction technology of any type, for any entity other than the respondent, without its prior consent, and that such consent has not been given. It is then asserted that Double Dove has possession of confidential and trade secret information belonging to the respondent which it has expressly agreed not to use or disclose, except for the benefit of the respondent. Confidential and trade secret information, by definition, cannot refer to the subject matter of a patent.


case_text: In Benmax v Austin Motor Coy Ltd (1953) 70 RPC 284 at 295-296, Evershed MR (Jenkins and Morris LLJJ concurring) said: 'There remains, however, the question whether the Defendants are right in suggesting that, if they are otherwise within the section (which for the purposes of the argument henceforth I will assume), they are entitled as of right to a declaration and an injunction. Now, it is quite true that the terms of the second subsection appear to be obligatory "the plaintiff shall be entitled to the following relief". But it would be startling if these words really were obligatory. The remedy of an injunction is one that has always been regarded as essentially a matter for discretion. Indeed, Sec.45 of the Judicature Act itself states that the power of the Court to grant an injunction is limited by this consideration, that the Court should grant an injunction when it considers it just or convenient. If the Defendants are right, in a case of this kind, the Court would be bound to grant an injunction though the Court considered it, as I should consider it in this case, both unjust and inconvenient. Moreover, it has never been the practice of the Court to grant injunctions which are on the face of them futile or meaningless. What would be the point of granting an injunction to restrain the plaintiff from threatening to bring an infringement action in respect of Letters Patent when by the same order the Court had revoked the Letters Patent, save perhaps to cast some doubt upon whether it really had been revoked? This section has emerged in the 1949 Act after considerable amendments in previous Acts. One of the problems which the section had earlier presented was solved by the removal from the present section of the former proviso that it had no application when an action for infringement was brought within a reasonable time after the alleged threat. I can see a sensible ground for removing that limitation. In Sec.36 of the 1932 Act there was also this difference: after an opening passage which corresponds closely to the wording of the present Subsec.(1): "Where any person, by circulars, advertisements, etc, threatens any person" the old subsection continued: - "any person aggrieved thereby may bring an action against him and may obtain a declaration" to the effect that such threats were justifiable and an injunction and may recover damages "for such". Then Subsec.(2) read: "The Defendant in any such action as aforesaid may apply, by way of counterclaim in the action, for any relief to which he would be entitled 'in a separate action in respect of any infringement' ." It has been assumed, as I have already said, that this section is available as a matter of counterclaim, though at first sight I would incline to think, as I think the learned Judge thought, that it only contemplates actions to restrain threats as distinct from counter-claims in infringement actions; but I think the use of the phrase "the plaintiff shall be 'entitled' " is explained in some degree by the passage I have just read from Subsec (2) of the Act of 1936. An instance was cited by Mr Whitford under the old Bankruptcy Act, namely, the case of In re Lord Furlough ([1895] 1 QB 724), where in this Court it was said that the word "shall", though it appears obligatory, is not always to be treated as more than directory. There is this further point: from Subsec.(1) it is plain that a person aggrieved may not seek more than one or other of the remedies set out in Subsec.(2); yet, so far as I can see, if the Defendants are correct, once the action has been brought and the party who has made the threats has failed to justify, the Court is bound to grant all the relief, regardless of what the plaintiff may ask for. That cannot be right, and indeed I go further and say that I cannot believe that Parliament intended in regard to the grant of an injunction to make it obligatory in any sense for a Court, and particularly a Court of Equity, to grant an injunction. Unless the words are clear and beyond any possible doubt, I, for one, should absolutely decline to be so bound. In spite of the formula "the plaintiff shall be entitled", which in its context may not be quite happy, I am unable to construe and do not construe this section as compelling the Court, given the premises, to grant all or indeed any of the relief set out in Subs.(2). In my judgment the phrase "the plaintiff shall be 'entitled' " cannot mean more than this that the plaintiff shall be entitled prima facie .' 37 Curiously, this case seems not to have been cited in Steinhardt . The reference to prima facie entitlement may suggest that there is little difference in the approach adopted by the Court of Appeal and that adopted by Fullagar J where his Honour referred to a 'strong affirmative reason why I should not' grant an injunction. However I doubt whether the cases can be reconciled on that basis. In each case the court appears to have been of the view that upon the considerations usually relevant to the grant of injunctive relief, such relief ought not to have been granted. Yet in Benmax the injunctive relief was declined whilst in Steinhardt , it was granted. I find the reasoning in Benmax to be persuasive. If I may say so, with respect, the reservation that Fullagar J had about his own conclusion would suggest that had his Honour's attention been drawn to Benmax , the outcome would have been different. 38 The matter has been further complicated by decisions of two members of this Court. In Townsend Controls Pty Ltd v Gilead (1989) 16 IPR 469 at 474-475, von Doussa J considered the availability of injunctive relief pursuant to s 121 of the 1952 Act. His Honour concluded that, in default of defence, a declaration or injunctive relief could not be granted 'without prior inquiry into the merits' . His Honour then observed (at 475): 'I consider the remedies of injunction and declaration should be treated as discretionary in the sense in which injunctions and declarations generally are discretionary in equity: See Benmax v Austin Motor Coy Ltd ... . Such relief should not be granted by consent or in default of appearance or appearance at trial unless it is established to the satisfaction of the court that is proper to do so.' 40 I would not readily depart from a view of a member of the High Court expressed at first instance, particularly a view expressed by Fullagar J. However his Honour would undoubtedly have given very considerable weight to the decision of the Court of Appeal in Benmax , had he been referred to it. That decision has, in effect, been followed by von Doussa and Crennan JJ, the decision of Crennan J being under the current legislation. I would normally follow the decision of another member of this Court unless satisfied that it was wrong. Far from being satisfied that her Honour's decision was wrong, I consider that it was correct. In those circumstances I conclude that the availability of declaratory and injunctive relief pursuant to s 128 is discretionary. 41 The applicant is entitled to be vindicated in having brought these proceedings, but the declaration will serve that purpose. I conclude that it is unlikely that there will be any further unjustifiable threats from the respondent. This view is based upon the passage of time since the threats were made and the apparent care with which any such threats were avoided in the second letter. I decline to exercise my discretion in favour of granting an injunction. 42 I will hear submissions as to costs. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 30 August 2007 Counsel for the Applicant: Mr DJS Jackson QC Mr JM Horton Solicitor for the Applicant: Clayton Utz Counsel for the Respondent: Mr R Macaw QC Mr D Logan Solicitor for the Respondent: Davies Collison Cave Lawyers Date of Hearing: 26 June 2007 Date of Judgment: 30 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1364.html


case_text: The matter has been further complicated by decisions of two members of this Court. In Townsend Controls Pty Ltd v Gilead (1989) 16 IPR 469 at 474-475, von Doussa J considered the availability of injunctive relief pursuant to s 121 of the 1952 Act. His Honour concluded that, in default of defence, a declaration or injunctive relief could not be granted 'without prior inquiry into the merits' . His Honour then observed (at 475): 'I consider the remedies of injunction and declaration should be treated as discretionary in the sense in which injunctions and declarations generally are discretionary in equity: See Benmax v Austin Motor Coy Ltd ... . Such relief should not be granted by consent or in default of appearance or appearance at trial unless it is established to the satisfaction of the court that is proper to do so.'


case_text: Section 65 of the Act imposes an obligation on the Minister to grant a protection visa to an applicant if satisfied of particular matters. The satisfaction of the Minister is a condition precedent to that obligation. The delegate of the Minister is in the same position as the Minister. The Tribunal exercises all of the powers and discretions conferred on the decision-maker under the Act . By s 420 of the Act , the Tribunal in reviewing a decision, is not bound by technicalities, legal forms or rules of evidence and must act according to substantial justice and the merits of the case. In undertaking the review function, the Tribunal is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. By s 424(1) , the Tribunal in conducting a review may obtain information that it considers relevant and must have regard to that information in making the decision on the review. Provisions which confer upon the Tribunal a capacity to inform itself by information it considers relevant and provisions which free the Tribunal from technicalities and the formal rules of evidence are, like s 33 of the Administrative Appeals Tribunal Act 1975 (Cth), facultative provisions ( Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 628 [49] per Gleeson CJ and McHugh J) although the extent of that freedom in any given case might be "another question" ( Eshetu at [49]). Nevertheless, the Tribunal must reach conclusions which have a basis in evidence having rational probative force ( Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85 ; (1980) 31 ALR 666 at 685 per Deane J; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 per Deane J).


case_title: Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85 ; (1980) 31 ALR 666


case_text: Section 65 of the Act imposes an obligation on the Minister to grant a protection visa to an applicant if satisfied of particular matters. The satisfaction of the Minister is a condition precedent to that obligation. The delegate of the Minister is in the same position as the Minister. The Tribunal exercises all of the powers and discretions conferred on the decision-maker under the Act . By s 420 of the Act , the Tribunal in reviewing a decision, is not bound by technicalities, legal forms or rules of evidence and must act according to substantial justice and the merits of the case. In undertaking the review function, the Tribunal is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. By s 424(1) , the Tribunal in conducting a review may obtain information that it considers relevant and must have regard to that information in making the decision on the review. Provisions which confer upon the Tribunal a capacity to inform itself by information it considers relevant and provisions which free the Tribunal from technicalities and the formal rules of evidence are, like s 33 of the Administrative Appeals Tribunal Act 1975 (Cth), facultative provisions ( Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 628 [49] per Gleeson CJ and McHugh J) although the extent of that freedom in any given case might be "another question" ( Eshetu at [49]). Nevertheless, the Tribunal must reach conclusions which have a basis in evidence having rational probative force ( Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85 ; (1980) 31 ALR 666 at 685 per Deane J; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 per Deane J). 11 At common law, want of logic is not synonymous with error of law ( Bond , per Mason CJ at 356 with whom Brennan, Toohey and Gaudron JJ agreed) and, as to inferences : ... so long as there is some basis for an inference in other words, the particular inference is reasonably open even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place. [emphasis Mason CJ at p 356] 12 Where a statute requires the decision-maker to discharge particular duties, "irrationality of the kind described by Deane J in ( Bond ) may involve non-compliance with the duty" ( S20/2002 per Gleeson CJ at [9]). In the context of the particular statutory framework relating to protection visas under the Act and the role and duty of the Tribunal, Gummow and Hayne JJ with whom Gleeson CJ agreed, in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 observed at [38] that although the question of whether protection obligations relevantly arose included a consideration of factual matters, the critical question is whether the determination [by the Tribunal] was irrational, illogical and not based on findings or inferences of fact supported by logical grounds ... inadequacy of the material before the decision-maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdiction error. [my emphasis]


case_text: Although the Tribunal is not bound by rules of evidence, the underlying rules of rationality that guide notions of relevance and deductive and inductive reasoning inform the process of reaching a decision that is supported by evidence ( Rationality and Judicial Review of Administrative Action : Dr. G. Airo-Farulla, Vol. 24, Melbourne University Law Review, p 453: see also Reasonableness, Rationality and Proportionality : Dr. G. Airo-Farulla, Australian Administrative Law, edited by Groves and Lee, Cambridge University Press, 2007, Ch. 14; French J, Administrative law in Australia: Themes and values , Australian Administrative Law, Ch. 2). Describing the process of reasoning as irrational, illogical or based upon an unsound approach to the assessment of documents or that findings are not based on inferences of fact supported on logical grounds, may merely be an emphatic way of the appellant disagreeing with a finding of fact ( Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 per Gleeson CJ at [5]. Thus, it is necessary to identify the nature and quality of the contended error and the precise legal principle that attracts a particular legal consequence, such as error of law. The scope of the legal rubric is conventionally understood in terms of the well known passage from Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 351 [82] per McHugh, Gummow and Hayne JJ. As to misconceptions which might suggest an unsupportable supposition on the part of the decision-maker, see Avon Downs Pty Ltd v FCT [1949] HCA 26 ; (1949) 78 CLR 353 at 360 per Dixon J; R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty Ltd [1953] HCA 22 ; (1953) 88 CLR 100 at 120 per Dixon CJ, Williams, Webb and Fullagar JJ. As to constraints upon a court interfering with a decision-maker's assessment of evidence, in exercising supervisory review of administrative decision-making, see Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at pp 35-36 per Brennan J. 12 Where a statute requires the decision-maker to discharge particular duties, "irrationality of the kind described by Deane J in ( Bond ) may involve non-compliance with the duty" ( S20/2002 per Gleeson CJ at [9]). In the context of the particular statutory framework relating to protection visas under the Act and the role and duty of the Tribunal, Gummow and Hayne JJ with whom Gleeson CJ agreed, in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 observed at [38] that although the question of whether protection obligations relevantly arose included a consideration of factual matters, the critical question is whether the determination [by the Tribunal] was irrational, illogical and not based on findings or inferences of fact supported by logical grounds ... inadequacy of the material before the decision-maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdiction error. [my emphasis]


case_text: Although the Tribunal is not bound by rules of evidence, the underlying rules of rationality that guide notions of relevance and deductive and inductive reasoning inform the process of reaching a decision that is supported by evidence ( Rationality and Judicial Review of Administrative Action : Dr. G. Airo-Farulla, Vol. 24, Melbourne University Law Review, p 453: see also Reasonableness, Rationality and Proportionality : Dr. G. Airo-Farulla, Australian Administrative Law, edited by Groves and Lee, Cambridge University Press, 2007, Ch. 14; French J, Administrative law in Australia: Themes and values , Australian Administrative Law, Ch. 2). Describing the process of reasoning as irrational, illogical or based upon an unsound approach to the assessment of documents or that findings are not based on inferences of fact supported on logical grounds, may merely be an emphatic way of the appellant disagreeing with a finding of fact ( Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 per Gleeson CJ at [5]. Thus, it is necessary to identify the nature and quality of the contended error and the precise legal principle that attracts a particular legal consequence, such as error of law. The scope of the legal rubric is conventionally understood in terms of the well known passage from Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 351 [82] per McHugh, Gummow and Hayne JJ. As to misconceptions which might suggest an unsupportable supposition on the part of the decision-maker, see Avon Downs Pty Ltd v FCT [1949] HCA 26 ; (1949) 78 CLR 353 at 360 per Dixon J; R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty Ltd [1953] HCA 22 ; (1953) 88 CLR 100 at 120 per Dixon CJ, Williams, Webb and Fullagar JJ. As to constraints upon a court interfering with a decision-maker's assessment of evidence, in exercising supervisory review of administrative decision-making, see Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at pp 35-36 per Brennan J.


case_title: Avon Downs Pty Ltd v FCT [1949] HCA 26 ; (1949) 78 CLR 353


case_title: R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty Ltd [1953] HCA 22 ; (1953) 88 CLR 100


case_title: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1


case_text: Where a statute requires the decision-maker to discharge particular duties, "irrationality of the kind described by Deane J in ( Bond ) may involve non-compliance with the duty" ( S20/2002 per Gleeson CJ at [9]). In the context of the particular statutory framework relating to protection visas under the Act and the role and duty of the Tribunal, Gummow and Hayne JJ with whom Gleeson CJ agreed, in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 observed at [38] that although the question of whether protection obligations relevantly arose included a consideration of factual matters, the critical question is whether the determination [by the Tribunal] was irrational, illogical and not based on findings or inferences of fact supported by logical grounds ... inadequacy of the material before the decision-maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdiction error. [my emphasis]


case_text: In Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1 ; (1999) 84 FCR 411 , Black CJ, von Doussa and Carr JJ at [25] also observed that want of logic in drawing an inference will not of itself constitute an error of law although want of logic "may sound a warning note to put one on inquiry whether there was indeed any basis for the inference drawn". See also NAMM of 2002 v MIMIA [2003] FCAFC 32 per French, Lindgren and Finkelstein JJ; MIMIA v W306/01A [2003] FCAFC 208 per French, Hill and Marshall JJ; NACB v MIMIA [2003] FCAFC 235 per Tamberlin, Emmett and Weinberg JJ; W404/01A of 2002 v MIMIA [2003] FCAFC 255 per French, Lee and Carr JJ; NATC v MIMIA [2004] FCAFC 52 per Heerey, Sundberg and Crennan JJ; VWST v MIMIA [2004] FCAFC 286 per Kiefel, Marshall and Downes JJ, applying these principles.


case_title: Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 ; (2001) 65 ALD 141

case_text: As to inferences, Sundberg, Emmett and Finkelstein JJ in Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 ; 65 ALD 141 said this: [34] The question whether there is any evidence of a particular fact is a question of law. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law. That is because, before the inference is drawn, there is a preliminary question as to whether the evidence reasonably admits a difference conclusion. Accordingly, in the context of judicial review, the making of findings and the drawing of inferences in the absence of evidence is an error of law. On the other hand, there is no error of law simply in making a wrong finding of fact. Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, that would not amount to an error of law. A party does not establish an error of law by showing that the decision-maker inferred the existence of a particular fact by a faulty process, for example, by engaging in an illogical course of reasoning. Thus, at common law, want of logic is not synonymous with error of law. So long as the particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.


case_text: The satisfaction or otherwise of whether the appellant is a person to whom Australia owes protection obligations on the ground of a contended well-founded fear of persecution for a Convention reason might be determined by the Tribunal in the purported exercise of the statutory review function in a way that reveals a failure to reach findings supported by any evidence or reveals findings based on inferences drawn by the Tribunal from facts that do not support those findings, as a matter of law. Such a determination might be characterised as irrational, illogical, arbitrary, capricious or made according to humour or private opinion rather than by reference to a reason or justice. Such a decision is unreasonable. However, for present purposes, I use each of these terms to describe a decision of the Tribunal based on findings unsupported by any evidence or based upon findings thought to be supported by inferences drawn from primary facts where those inferences are not open as a matter of law. Decisions made by the Tribunal in such circumstances are not made in the performance of the duty imposed on the Tribunal by the Act and thus involve jurisdictional error. Such decisions do not simply reflect insufficiency or inadequacy of evidence but rather an absence of any foundation in fact for the state of satisfaction or otherwise of the Minister or decision-maker. As to the role of independent country information, the Full Court of this Court per Gray, Tamberlin and Lander JJ in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 , said this at [11]: [11] ... There can be no objection in principle to the Tribunal relying on "country information". The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to "guidance", as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law or a jurisdictional error for the Tribunal to base a decision on "country information" that is not true. The question of the accuracy of the "country information" is one for the Tribunal not for the Court. If the Court were to make its own assessment of the truth of "country information" it would be engaging in merits review. The Court does not have power to do that. 16 In analysing in NAHI the extent to which the Tribunal relied upon country information in reaching its decision and the relationship between findings on credit and the use of country information, the Tribunal said this at [12]: [12] The appellants' submissions asserted that the Tribunal rejected all of the appellant's claims on the basis of "country information". The Tribunal's reasons for decision do not substantiate this assertion. It is plain that the Tribunal relied to a substantial extent on the inherent probability of some aspects of the first appellant's story, inconsistencies between different parts of his story and the fact of his frequent returns to Sri Lanka and the length of his sojourns there, to form its views about his credibility. In turn, it relied on its assessment of the first appellant's credibility in determining whether it accepted some of the "country information". ... The very function of the Tribunal was to assess the appellants' claims, both as to their inherent credibility and as to their consistency with other information known to the Tribunal about circumstances in the appellants' country of origin. [emphasis added] 17 The central matter therefore is to assess whether there was material before the Tribunal upon which it was entitled to rely as a result of the process it undertook in weighing the merits of the appellant's claims. 18 The appellant arrived in Australia in August 2004 and lodged an application for a protection visa on 16 August 2004 supported by a six page handwritten statement of those matters said to demonstrate a well-founded fear of persecution for a Convention reason. The application document contains a short answer to question 40, "Why did you leave [India]?" to which the appellant said: I had political and commercial problems in India. If I go back to India the police and local political people try to kill me.


case_text: similar argument was put in two matters I heard earlier this year. I rejected the argument. I take the liberty of repeating what I said in AA v Board of the Australian Crime Commission [2009] FCA 642 at [45] - [48] : "The applicant submits that a person otherwise given the summons within the terms of s 29A(3) includes a person given the summons, not only by the Commission or an examiner, but by a person served with the summons, or by a person who has been given the summons by a person who in turn has received the summons from the person served with the summons. The applicant submits that if this proposition is correct then it follows that the Statement should set out the obligations and rights in s 29B(3) and (4) either because the words 'otherwise given, a summons' in s 29B(1) have a different meaning from the same words used in s 29A(3), or because a person 'otherwise given, a summons' can fall within the terms of both s 29B(1) on the one hand and s 29B(2) and (4) on the other. The respondents submit that the Act creates two classes, namely, a class of persons served with a summons or otherwise given a summons by the Commission or an examiner, and a class of persons to whom disclosure is made by a person in the first class or by a person otherwise in the second class. The obligations and rights of the first class are set out in s 29B(1) and (2) and the obligations and rights of the second class are set out in s 29B(3) and (4). On this analysis, the written statement referred to in s 29A(3) must set out the obligations and rights set out in s 29B(1) and (2), but need not set out the obligations and rights in s 29B(3) and (4). In my opinion, the construction of s 29A and s 29B of the ACC Act advanced by the respondents is the correct one. First, the respondents' construction means the words 'otherwise given, the summons' are given the same meaning in the two sections. Secondly, the construction is consistent with the distinction suggested by the structure of s 29B between a person directly involved with the Commission or an examiner in that he or she has been served with a summons or otherwise given a summons by the Commission or an examiner, on the one hand, and a person to whom disclosure has been made, on the other. Thirdly, the respondents' construction avoids the practical difficulties that the applicant's construction creates in terms of the obligation placed on the Chief Executive Officer of the Commission by s 29A(5). This issue was also an issue considered by Jagot J in SS . Again, I have reached my conclusions independently of her Honour's decision. However, with respect, her Honour's reasons neatly summarise why in this case the applicant's submission must be rejected and I take the liberty of repeating them. Her Honour said (at [123]-[127]): 'Three matters are apparent from this scheme. First, the scheme distinguishes between a person "served, or otherwise given" a summons or notice and a person to whom a person "served, or otherwise given" a summons or notice makes disclosure. The former is subject to ss 29B(1) and (2). The latter is subject to ss 29B(3) and/or (4). Consideration of the opening words of the provisions of ss 29B(1) to (4) supports this distinction (that is, the fact that s 29B(1) uses the words "served, or otherwise given" whereas ss 29B(3) and (4) refer to persons to whom disclosure has been made or information disclosed). This distinction indicates that the Act establishes two classes of persons for the purpose of these provisions, namely: - (i) persons who are served or otherwise given a summons or notice, and (ii) persons who are the recipient of disclosure by a person served or otherwise given a summons or notice, but who have not themselves been served or otherwise given a summons. This scheme is inconsistent with SS's case that the words "otherwise given" in s 29A(3) should be read as applying to a person who is the recipient of disclosure by a person served or otherwise given a summons or notice. Second, treating a person to whom disclosure has been made about a summons or notice as a person 'otherwise given' the summons or notice under s 29A(3) undermines the careful scheme of obligations imposed by s 29B. The reason for this is that the words 'or otherwise given' must take the same meaning wherever they appear in the ACC Act. Hence, s 29B(1), on SS's construction, would apply to a person to whom disclosure is made (and who happens to be given a copy of the summons or notice as part of that disclosure) under s 29B(2). Yet such a person would also be subject to the obligations imposed by s 29B(3). Similarly, if that person to whom disclosure is made under s 29B(2) (and who happens to be given a copy of the summons or notice as part of that disclosure) themselves makes a disclosure under s 29B(4) (and happens to be given a copy of the summons or notice as part of that disclosure) the person who is the recipient of the disclosure under s 29B(4) would also become a person subject to the obligations under s 29B(3), yet also (on SS's case) s 29B(1) as well. This makes the statutory scheme nonsensical. Third, and as the ACC pointed out, if SS's construction is correct then the CEO's obligation in s 29A(5) is unworkable. The CEO will know the persons served or otherwise given the summons by the ACC. The CEO cannot know the persons to whom a disclosure has been made in accordance with ss 29B(2) or (4). Such a disclosure is not a matter for the CEO. It is a matter for the person served or otherwise given the summons or notice by the ACC and the recipient of the disclosure. Yet SS's construction would require the CEO to give written notice of the cancellation of the notation to persons both served or otherwise given the summons or notice by the ACC and persons (unknown to the CEO) to whom such a person made disclosure (and so on in accordance with s 29B(4)). These considerations indicate that the ACC's submission must be accepted." (See also GG v Australian Crime Commission [2009] FCA 759 at [34] - [37] .) It seems to me that there are arguments on both sides. In support of the applicant's submission, it can be said that the examiner must reach a state of satisfaction before issuing the summons and there is no reason to think that he or she could or should not record in writing his or her reasons at the same time. In support of the respondent's submission, it can be said that there is no obligation on the examiner to give reasons to the person summoned and that, as the record in writing referred to in s 28(1A) performs the function identified by Finn J in Barnes v Boulton [2004] FCA 1219 ; (2004) 139 FCR 356 at 363-364 [28] - [29] , there is no reason to require the record to be made before the summons is issued. (See also my discussion in AA v Board of the Australian Crime Commission [2009] FCA 642 at [26] - [30] ).


case_outcome: discussed

case_text: applicant referred to the decision in Ganke v Deputy Commissioner of Taxation of the Commonwealth of Australia (1975) 25 FLR 98 and submitted that the examiner was bound under the ACC Act to allow a reasonable time for the production of the documents and things and that the respondent bore the onus of establishing that "forthwith" was a reasonable time. After the hearing, the applicant wrote to my chambers and referred me to the decision of Flick J in A. B. Pty Limited v Australian Crime Commission [2009] FCA 119. In that case, his Honour referred to a number of factors which are to be considered in determining objectively whether the period of time allowed for production in a notice under s 29 is reasonable. He said (at [61]): "The objective surrounding circumstances would include the breadth of each particular notice and (perhaps) the need for a recipient to construe the terms of a notice; the classes of documents required to be produced; the apparent ability of the recipient to collate and thereafter produce the documents; the time of the year at which a notice is served and intervening disruption to business activities by reason of public or religious holidays; whether there has been a prior attempt to require the production of the same or similar documents; and the time in fact allowed. Some consideration could also be given to the amount of time an examiner thought appropriate; although that consideration would not be decisive." The ACC Act gives the examiner the power to fix the time for production and this is not a case in which an Act is silent on the time within which a statutory obligation must be performed. In other words, this is a not a case in which the law must imply a requirement that the performance of a statutory obligation must take place within a reasonable time because, under the ACC Act, the examiner has the power to fix the time for performance. However, as the decision in A. B. Pty Limited v Australian Crime Commission [2009] FCA 119 illustrates, that does not mean that the examiner's decision as to the time within which documents or things must be produced is unexaminable. I do not need to examine in detail the grounds upon which an examiner's decision as to the time for production may be successfully challenged because I am satisfied that "forthwith" was a reasonable time in the circumstances of this case, or at least that the applicant has not established that an examiner could not reasonably take the view that it was a reasonable time. The documents or things in issue in this case were in the possession of the respondent on 19 February 2004. The applicant was present at an examination on 19 February 2004 and he was accompanied by his senior counsel and by his solicitor. The documents or things were handed to him and then he was served with the notice to produce. He then produced the documents or things in issue. He did not need time within which to locate the documents or things he was to produce and he had the opportunity "on the spot" to obtain legal advice. I reject the fourth ground of challenge to the notice to produce. The applicant's fifth ground of challenge to the notice to produce is that the notice was invalid because the examiner did not record in writing his reasons for issuing the notice until after the notice was issued. This ground raises the same matters as are raised in relation to the same ground with respect to the summons. For the same reasons, I reject this ground of challenge (at [55]-[66]). Conclusion All grounds of challenge to both the summons and the notice to produce fail and the proceeding must be dismissed. The applicant must pay the respondent its costs of the proceeding. I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 14 September 2009 Counsel for the Applicant: Mr M Abbott QC with Mr A Thomas Solicitor for the Applicant: Iles Selley Lawyers Counsel for the Respondent: Ms S Maharaj QC with Mr R Prince Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 5, 6 February 2009 Date of Judgment: 14 September 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1027.html