case_title: Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 536 ; (1993) 46 FCR 225

case_text: costs have been sought. The categories in respect of which indemnity costs might be ordered are not closed: see Colgate-Palmolive v Cussons Pty Ltd [1993] FCA 536 ; (1993) 46 FCR 225. Rather, there is a discretion. The awarding of indemnity costs is exceptional. In the ordinary course of events a litigant is entitled only to party and party costs. That is part and parcel of the burden any litigant assumes in choosing to bring a matter to court. Here, though, the latest and last event of non-compliance persuades me that these Respondents the Third, Fourth and Fifth Respondents are either unable or unwilling to accept the fact that, as I have stated, directions are not aspirational statements. I see this, therefore, as a case which warrants the awarding of indemnity costs in respect of the costs of today. Further, it seems to me that an appropriate way to bring focus on the part of the Third, Fourth and Fifth Respondents to responsibilities that attend litigation is to direct that those costs be taxed and paid forthwith. For completeness, I should mention that it was raised on behalf of the Third, Fourth and Fifth Respondents that the proceedings themselves were stayed under the Corporations Act 2001 (Cth) (Corporations Act) given that, apparently, the First and Second Respondents are in liquidation. My understanding, though, of the operation of the Corporations Act is that the proceedings, as against the companies in liquidation, are stayed and could not further be pursued as against those Respondents without leave, but that it is nonetheless lawfully possible for the Applicants to press their claims against the Third, Fourth and Fifth Respondents. I do not, therefore, see that as an obstacle either to the making of an order in respect of costs or, for that matter, in respect of the further prosecution by the First and Second Applicants of the case as against the Third, Fourth and Fifth Respondents. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 20 November 2009 Counsel for the Applicants: Mr K Howe Solicitor for the Applicants: Michael Sing Lawyers Solicitor for the Third, Fourth and Fifth Respondents: John B Haije & Associates Date of Hearing: 12 November 2009 Date of Judgment: 12 November 2009 ANNEXURE A Court Order dated 1 April 2009 (amended by consent) Directions Compliance Filed Late The applicants file and serve an amended application and statement of claim on or before 17 April 2009. Applicants complied on 17 April 2009. N/A The respondents shall file and serve any request for further particulars on or before 1 May 2009. Respondents failed to comply within time. Yes Respondents served the request for further and better particulars on 4 May 2009, 3 days later than required. The applicants shall file and serve a response to any request for further particulars on or before 15 May 2009. Respondents complied on 28 May 2009 (defence failed to comply with Rules). N/A The applicants shall file and serve a reply, if any, on or before 5 June 2009. Applicants unable to comply with Court Order as Respondents' Defence failed to comply with the Rules. N/A The applicants and respondents serve on each respective party a list of documents required to be disclosed on or before 12 June 2009. The Applicants complied on 12 June 2009. The Respondents failed to comply. N/A Further directions made on 19 June 2009 for Respondents to comply. Court Order dated 19 June 2009 (consent) Directions Compliance Filed Late The applicants are to file and serve any request for further particulars on or before 31 July 2009 Applicants complied on 31 July 2009 N/A The respondents shall file and serve a list of documents on the applicants on or before 31 July 2009. Third, Fourth and Fifth Respondents served List of Documents on 9 November 2009, but have failed to file them. Served late Not filed The respondents shall file and serve a response to any request for further particulars on or before 28 August 2009. Respondents failed to comply Remains outstanding The respondents shall file and serve an amended defence, if any, on or before 18 September 2009. Respondents failed to comply Amended Defence for the Third, Fourth and Fifth Respondents was filed late, on 6 October 2009. Amended Defence for the Third, Fourth and Fifth Respondents was served on the applicants on 9 November 2009. The applicants shall file and serve a reply, if any, on or before 16 October 2009. Applicants have been unable to comply due to Respondents non-compliance in filing an amended defence and response to further and better particulars. No AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1361.html


case_outcome: cited

case_text: His Honour held that the appellant had proved the Tribunal had committed a jurisdictional error in 1998 in that it had acted on an erroneous view of the law exposed only much later by the High Court's decision on 9 December 2003 in Appellant S395/2002 v Minister of Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473. The Minister did not pursue a notice of contention to challenge that finding of his Honour. Ultimately his Honour refused to grant relief, notwithstanding the jurisdictional error he had found. The basis upon which his Honour did so is expressed in his reasons ( SZGLK v Minister for Immigration [2006] FCA 673 at [37] ). He said: 'On the question of delay, both sides acknowledge that there have been periods when the applicant has been pursuing action to secure his refugee protection status. However, none of which focused on review of the Tribunal's decision. Part of those attempts occurred on acceptance that the Tribunal's decision was in fact correct. The actions were commenced by the applicant while represented by a legal practitioner specialising in migration law. Putting that to one side, there still remains significant unexplained delays. As the applicant has had the benefit of legal advice on how he should be pursuing his protection claim he cannot sustain the argument that the delays were due to his ignorance of the system. The documentation accompanying the original Tribunal decision contained a warning that judicial review must be sought within 28 days of notification of that decision. In the circumstances I believe it is appropriate to exercise my discretion and refuse relief.' 23 When his Honour referred, in the critical part of his reasoning, to part of the attempts of the appellant having occurred on acceptance that the Tribunal decision was in fact correct, I infer that he did so, meaning to refer to the submission of the Minister that the letter under s 417 had been written with that in mind. It is therefore important to turn to that letter. It put forward three grounds which were as follows: 1. The appellant had been integrated into the Australian community generally. It argued that he, as a gay or homosexual man, would, at the very least, suffer significant discrimination. Even if it were not sufficient to make out Convention grounds to satisfy the Minister, this should elicit sympathy. The appellant had an infrastructure, within this country, of friendships and the like that had been formed in the intervening period of his residence. The ground noted that the catalyst for the appellant's departure was that he had been harassed in Malaysia and ostracised by his family. It recorded that the tribunal had assessed his claims and that they were not sufficient for invoking Convention grounds. However, Mr Joel asked that the reader could understand the pressure that was applied in that country which obviously remained a concern with respect to the appellant. 2. The second ground was the fact that '... the law appeared significantly to have changed in a fashion which might benefit the appellant by reason of the High Court's decision ...' in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473. The letter drew the Minister's attention to the consequence of that case holding that it was not correct to place on gay men an onus to live a discreet life (and hence avoid discrimination). It said that the decision had amplified the attachment to the social group of gay men which the appellant was part. 3. The third ground was that the appellant's concern continued as to his treatment were he returned to Malaysia. 24 The Minister argued that the reference in the letter to the decision of the High Court did not suggest that the decision of the tribunal was anything other than correct. In my view, it clearly challenged a fundamental premise of the reasoning of the tribunal, namely that it regarded the appellant as being a discreet person and that his likely treatment and fear of persecution were he to return to Malaysia had to be assessed on that basis. It said in express terms, that, the appellant's 'discretion seems by now to be germane to him', as in effect adopting the erroneous approach exposed by the majority of the High Court, some nearly six years after the tribunal's decision was given. 25 What the tribunal failed to do, was to ask why it was necessary for the appellant to be or why he had become discreet. That is, as I understand it, the basis upon which his Honour was entitled to find, which is not now challenged, that there had been a jurisdictional error (see, for example, 216 CLR at 493 [53] per McHugh and Kirby JJ and 503 [90] per Gummow and Hayne JJ). I am of opinion that his Honour erred in concluding that the letter under s 417 amounted to or could be read as an acceptance of the correctness of the tribunal's decision.


case_outcome: considered

case_text: Moreover, I am of opinion that it was erroneous for his Honour to have taken the view that the appellant's participation in the class actions was a matter in which he should be taken as having accepted the correctness of the Tribunal's decision, if that is a reading that is open on the materials. There is a number of reasons why people take other proceedings or do not challenge on all possible grounds in one proceeding, decisions which may be not perceived to be in their interest. For example, in Port of Melbourne Authority v Anshun Pty Limited [1981] HCA 45 ; (1981) 147 CLR 589 at 603, Gibbs CJ and Mason and Aickin JJ said that there was a variety of circumstances why a party might justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings. Examples were the expense, the importance of the particular issue, and motives extraneous to the actual litigation which they said was to mention but a few. 27 Here the appellant, apparently, on legal advice was told to join in two separate and, apparently, consecutive class actions that consumed a great deal of the period relied on as a delay. One can understand why, if he were advised that either of those class actions could afford him relief so that the decision against him could be reviewed, he may decide that it would save him the expense of litigating his own individual proceedings to do so. 28 I am of opinion that it was not open to his Honour to draw an adverse inference as to delay against the appellant that he chose to join in the Macabenta class action, albeit on advice, immediately after the adverse tribunal decision. His Honour noted that the appellant's involvement in those proceedings did not directly challenge the decision now under review. Nonetheless, as his Honour recognised, what the appellant was doing was seeking to obtain an objective, mainly, to secure his refugee protection status. The fact that he chose, perhaps ill advisedly, one rather than another avenue of redress to achieve the same end and, even if he did so on legal advice, does not necessarily lead to a conclusion that the delay was unwarranted or inexcusable when he came to challenge the decision in the proceedings below or here.


case_outcome: discussed

case_text: Indeed, in R v Commonwealth Court of Conciliation and Arbitration: Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389 at 400, Latham CJ, Rich, Dixon, McTiernan and Webb JJ said that the constitutional writ of mandamus was not a writ of right and was not issued as of course. There were well recognised grounds upon which the court may, at its discretion, withhold the remedy. They noted that the writ may not be granted if a more convenient and satisfactory remedy exists. They went on to say that another ground was that if no useful result would ensue or if the party had been guilty of unwarrantable delay or if there had been bad faith on the part of the applicant, either in the transaction over which the duty to be enforced arose or towards the court to which the application is made. But, they said: 'The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.' Again, their Honours, in this passage, were dealing with constitutional writ relief, albeit for a writ of mandamus. (Here the trial judge refused orders for certiorari and mandamus.) The High Court noted that one reason to refuse the writ was whether there was a more convenient and satisfactory remedy. 30 The class actions which had been joined by the appellant could have resulted in his matter being reconsidered and the point he now wishes to take could have been reventilated before the Tribunal afresh. It is possible to see that a more convenient and satisfactory remedy was achievable for the appellant in pursuing the substantive class actions. They could have resulted in more sweeping relief quashing a large number of the Tribunal's decisions and requiring a reconsideration of them. Indeed, the result of those proceedings may have affected any reconsideration by the Tribunal of the appellant's case. 32 Their Honours referred to the passage above from R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389 at 400, and to an observation by Lord Denning MR, in F. Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 320: 'He may be debarred from relief if he has acquiesced in the invalidity or has waived it. If he did not come with due diligence and ask for it to be set aside, he may be sent away with nothing.'


case_text: In Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at 106-109 [51] - [59] , Gaudron and Gummow JJ examined circumstances in which constitutional writ relief for the writ of prohibition might be refused. They referred to the recognition that an element of the discretion attending the exercise of the jurisdiction conferred by s 75(v) of the Constitution with respect to prohibition, involved two separate questions. The first was whether the officers of the Commonwealth in question had acted in want of, or excess, of jurisdiction. His Honour's finding here shows that to be the case. The second question identified by Gaudron and Gummow JJ was whether prohibition should not issue having regard to the delay, waiver, acquiescence, or other conduct of the prosecutor in the course of the administrative proceeding or in other relevant circumstances (204 CLR at 106-107 [53]).


case_text: Their Honours referred to the passage above from R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389 at 400, and to an observation by Lord Denning MR, in F. Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 320: 'He may be debarred from relief if he has acquiesced in the invalidity or has waived it. If he did not come with due diligence and ask for it to be set aside, he may be sent away with nothing.'


case_outcome: applied

case_text: The critical issue in this appeal is whether his Honour exercised his discretion to grant or refuse relief in accordance with principles in House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 504-505. 17 The appellant also raised another issue in the appeal as to whether his Honour ought to have heard or received evidence from the appellant as to the circumstances on which the letter under s 417 was written and in particular, whether that evidence bore on a construction of the letter that it amounted to an acceptance of the Tribunal decision being, in fact, correct. His Honour refused to allow any evidence to be adduced on that point on the basis that, through an oversight of counsel then appearing for the appellant, his affidavit dated 1 August 2005 had not been served on the Minister until a few days before the trial in late March 2006. A question was raised on the material which the appellant sought to rely upon as to whether he had obtained legal advice concerning the issue of his acceptance or otherwise of the Tribunal's decision as being correct. The Minister complained that she was prejudiced in investigating that issue by the late receipt of the affidavit and notice ultimately that this issue was to be relied upon because she could not, in time before the trial, subpoena relevant material. His Honour took the view that in all the circumstances he would refuse leave to the appellant to adduce oral evidence, the attempt to tender the affidavit having been abandoned, on this point at the hearing. 18 I do not see any basis upon which it could be said that his Honour's discretion miscarried. The appellant did not seek an adjournment to be able to allow the matter to proceed once any additional evidence had been obtained on subpoena or otherwise. Perhaps the appellant was mindful of any consequent order for costs occasioned by the adjournment going against the appellant in those circumstances. His Honour proceeded with the trial of the application. 19 I do not see any error in his Honour's reasons for doing so. 20 His Honour recorded in some detail, the arguments dealing with the issue of delay because it was an issue which loomed large and to which the debate about the admission of further evidence by the appellant was directed. The Minister made a concession that the period in which the Muin and Lie class action was progressed between June 1999 and February 2004 should not count against the appellant as any period of delay. That left the period between the giving of the decision in January 1998 by the Tribunal and the commencement of the appellant's participation in Muin and Lie class action to be accounted for and, subsequently, the period after June 2004 and the commencement of the proceedings. The latter period was largely sought to be explained by the letter under section 4 seeking reconsideration under s 417. 21 As I have noted above, because of the gap between the decision of the Full Court of this Court in the Macabenta action in December 1998, and the appellant's joinder to the Muin and Lie class action in June 1999, counsel for the Minister submitted on the material available to him and before his Honour that that period was unexplained, and clearly before his Honour, it was. The Minister also submitted before his Honour and before me that participation in the Macabenta class action was a choice deliberately engaged in by the appellant on legal advice to pursue one form of relief and eschew a direct challenge to the Tribunal's decision in his case. His Honour accepted that characterisation, noting in the passage from his judgment which I have set out above, that all of the appellant's attempts prior to the commencement of the proceedings in the Federal Magistrates Court pursued avenues which focused on remedies other than, and apart from, a direct challenge to the reasoning of the Tribunal in his individual case. 22 The Minister submitted to his Honour, as recorded in judgment [2006] FMCA 673 [33], that the letter under s 417 had proceeded on the assumption that the decision of the Tribunal was correct and that it had been written by the appellant's legal adviser and migration agent, Mr Joel, with knowledge of the law and thus constituted an admission by the appellant. 36 In my view, his Honour's reasons should be interpreted as having regard to an erroneous construction of the letter under s 417 that it amounted to an acceptance that the Tribunal's decision was in fact correct. For that reason, his Honour's discretion miscarried as explained in House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 505 by Dixon, Evatt and McTiernan JJ. They said that if a judge acted upon a wrong principle, allowed erroneous or irrelevant matters to guide or affect him, mistook the facts, or if he did not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. 37 In my opinion, each of his Honour's errors in characterizing the s 417 letter as accepting the Tribunal's decision as correct and his Honour's inference that the appellant's participation in the two class actions was capable of being seen in the same way, fell within the principles to which their Honours referred, namely, a mistake of the facts. 38 The Minister argued that although his Honour referred to those matters in the critical portion of his reasons, they were not determinative in the exercise of the ultimate discretion which was taken. That is because his Honour said: 'Putting that to one side, there still remain significant unexplained delays.' 39 As I have said, the delay between what was understood to be the end of the Macabenta class action and the commencement of the Muin and Lie class actions was an unexplained delay and could be regarded as being of some significance. But I am not at all clear as to what the other significant delays or delay to which his Honour referred were. His Honour seems to have focused on the fact that in January 1998, the Tribunal notified the appellant that he had 28 days to apply to the Federal Court. That is true, and it is also true that he was represented, relevantly, throughout the period which his Honour was examining. 40 But in light of the fact that throughout the period, albeit with the unexplained delay to his Honour in 1998-1999, the appellant was taking active steps to challenge the adverse decision on his application for refugee status. I am not sure what else the appellant should have done. It is because his Honour referred in general terms to unexplained 'delays' that it seems to me that while the period in 1998-1999 could be regarded as significant, the period following the Minister's 12-month consideration of the s 417 letter can hardly have a similar significance. 41 That delay is more than the 28 days, which had been notified to the appellant earlier, and it is also true that he had been legally advised. But at the heart of this case is the fact that there is a finding by his Honour that the Tribunal made a significant jurisdictional error in its consideration of and approach to the appellant's claims. Weighed against the significance of the injustice done to him by the erroneous approach that the Tribunal had adopted, and having regard to the whole of the history, I am of opinion that the appellant did seek to pursue remedies on the evidence before his Honour. Although there was a gap which had not been explained to his Honour, I am of opinion that his Honour did not simply have regard to those delays alone. On a proper reading of his decision, he saw that there were two bases on which he could refuse relief, the first being that of acceptance by the appellant of the Tribunal's decision being correct, and the second being delays. 42 Again, because I am of opinion that it was erroneous for his Honour to have had regard to the s 417 letter in the way that he appears to have done, his Honour's discretion miscarried and it therefore falls to me to consider the matter afresh. As I have noted, in light of the fact that the Macabenta class action was the subject of a special leave application which was only dismissed in June 1999, it is now clear that the appellant's delay in the period of his involvement in the Macabenta action went right up to the time he joined the Muin and Lie class action. 43 I am of opinion that it was reasonable for the appellant to decide on advice to pursue those class actions and not this action and he has given a sufficient explanation for that delay. Had he not been pursuing, as a member of the class, on legal advice, two actions which it is not suggested could not have afforded him relief, then there would obviously be no reason to ignore the period between February 1998 and February 2004 while those actions proceeded. But the fact is he was using those actions as a means to secure his refugee protection status, as his Honour found. 44 That being so, I am of opinion that the delay is explained. It may be that the appellant made a mistake in doing that, but it is not a mistake that I regard as being unreasonable, unwarranted, or in any way such as would suggest that he had waived his rights or acquiesced in the decision which he sought to challenge. Quite the contrary. Were those decisions in the class actions favourable to his position, he would have been held to be entitled to a further hearing in the Tribunal. 45 I am also of opinion, for the reasons that I have given, that when the s 417 letter was written it was reasonable for the appellant to seek the Minister's reconsideration of the matter, having regard to the High Court's over-ruling of previous decisions of this court and opening up for further consideration the way in which the appellant's claim had been assessed by the Tribunal. Why should people engage in litigation when a reasonable Minister, acting properly in accordance with the law, could have taken the view (and she is not to be criticised for not having done so) that the exercise of a discretion under s 417 was warranted? 46 It is not suggested, against the appellant, that the s 417 letter was futile, or that it should not have been written, or that it was a waste of time. All that is said is that by writing it and drawing attention to the fact that the High Court had changed the law that had been applied to him, the appellant was asking for a reconsideration more favourably of his case under the Act that that amounted to an acceptance of the correctness of the decision. I am unable to see how that could possibly be said to be an act of delay, waiver or acquiescence by the appellant. It plainly was not. It was an attempt by the appellant to have a sensible outcome achieved by administrative, rather than expensive and protracted judicial, proceedings. 47 The fact that the Minister took 12 months to decide the matter is then sought to be attributed to the appellant as a delay, and what is more, the Minister, having taken 12 months to deal with the matter, says that it was quite unreasonable for the appellant not to immediately go to the court within 28 days and that should be taken into account as a reason to conclude that he had waived, acquiesced or unreasonably delayed. In my opinion, there having been a plain jurisdictional error, it is not appropriate to refuse the appellant relief in all the circumstances. 48 I am of the opinion that in this matter I should grant the appellant an order in the nature of a writ of certiorari and remit the matter to the Tribunal to be determined according to law. The orders I make are: 1 The appeal is allowed with costs. 2 Orders 2 and 3 made by the Federal Magistrates Court of Australia on 19 May 2006 are set aside and in lieu thereof it is ordered that: (a) order in the nature of an order absolute in the first instance for a writ of certiorari to quash the decision of the second respondent dated 14 January 1998 to affirm the decision of the first respondent not to grant the appellant a protection visa; (b) order in the nature of a writ of mandamus directing the second respondent to hear and determine the application for review according to law; (c) the first respondent pay the applicant's costs. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 18 December 2006 Counsel for the Appellant: Mr N Poynder Counsel for the Respondent: Mr JD Smith Solicitor for the Respondent: Clayton Utz Date of Hearing: 8 November 2006 Date of Judgment: 8 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1744.html


case_text: even were FKP and FGUP to file evidence capable of establishing a prima facie case in relation to their claims for final relief, Spirits submits that their application in relation to the Existing Applications and the Further Applications would nevertheless fail. An interlocutory injunction is granted to preserve the status quo pending the determination at trial of the rights of the parties to final relief: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 ; (2001) 208 CLR 199. The interlocutory relief sought is in respect of trade mark applications which are not the subject of the cross-claim or any present application for relief by FKP and FGUP. Spirits submits that there is insufficient connection between the orders sought and the preservation of the status quo in relation to the subject matter of the cross-claim to support the present application, even if the Court had before it evidence of a prima facie case. But even assuming to the contrary against Spirits, Spirits submits that there would nevertheless be insufficient grounds for the making of the proposed orders. The orders sought are not proper orders with respect to the conduct of these proceedings, but relate to trade mark applications filed by Spirits in good faith and in the ordinary course of its business. Spirits submits that they are not orders that the Court will make lightly, and in the absence of compelling reasons, the Court should not, in Spirits' submission, intervene to impose conditions and obligations upon Spirits in the ordinary conduct of its business with respect to its trade marks, especially trade marks that not presently in issue in the proceedings. For the reasons outlined below, Spirits submits that even if the present application was to be dealt with as falling outside the class of an ordinary application for interlocutory relief, there is insufficient basis for the making of the proposed orders, including on 'case management grounds'.


case_text: and FGUP submit that the proposed orders are not in the nature of substantive interlocutory relief on the cross-claim (such as rectification of the Register); the orders are procedural rather than substantive. In these circumstances, there is no cause for any rigid application of the principles relating to the grant of interlocutory injunctions discussed in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 229 ALR 457 at [19] , [65] [72] and Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618. In particular, there is no need for FKP and FGUP to demonstrate a prima facie case or a serious question to be tried on the cross-claim as a condition of the grant of the relief set out in the draft short minutes of order. Proposed orders 1 and 2 do no more than facilitate the recordal by the Registrar of particulars of claims which are in fact made by FKP and FGUP, and which, for the reasons given above, will have a direct bearing on the fate of the Existing and Further Applications. According to Spirits, it is essential, when considering any application for interlocutory injunctive relief, to examine the nature of the rights asserted, the probability of ultimate success in enforcing them and the practical consequences that would flow from the grant of the interlocutory relief: : Australian Broadcasting Corp v O'Neill at [71] [72]. Spirits rhetorically asks: What is the right asserted here? Presumably it is not a right to force Spirits, at the end of a final hearing on the application of Part 11 of the Act, to submit involuntarily to the recordal of the alleged 'interest'. Nor is it a right asserted in the present proceedings, as the Existing Applications and the Further Applications are not the subject-matter of the cross-claim and FKP and FGUP presently claim no relief with respect to those applications. In truth, FKP and FGUP do not identify perhaps unsurprisingly, given that they are of the view (wrongly in Spirits' submission) that their present application is merely for 'case management purposes' this essential first ingredient of an application for mandatory interlocutory relief. Given their terms, the orders sought here by FKP and FGUP cannot be regarded as being purely procedural in nature or justified simply by principles of case management. Accordingly, Spirits submits that the ordinary principles relevant to the grant of interlocutory relief must apply to the grant of relief presently sought by FKP and FGUP. These principles are well-settled. To succeed in their application, FKP and FGUP bear the onus of establishing to the satisfaction of the Court that: (a) The applicant for relief has a prima facie case in relation to its application for final relief; and (b) the balance of convenience lies in favour of granting the interlocutory relief that is sought; and (c) damages would not be an adequate remedy. See Australian Broadcasting Corp v O'Neill . Spirits submits that it is now well-established that an applicant for interlocutory relief must, as a threshold issue, prove that it has a 'prima facie case' for final relief. The test is sometimes expressed as, in the sense that if the evidence remains as it is, there is a probability that at the trial of the action the applicant will be held to be entitled to the final relief claimed. Australian Broadcasting Corp v O'Neill , restoring (if restoration were needed) Beecham Group v Bristol Laboratories Pty Ltd .


case_text: and FGUP submit that the proposed orders are not in the nature of substantive interlocutory relief on the cross-claim (such as rectification of the Register); the orders are procedural rather than substantive. In these circumstances, there is no cause for any rigid application of the principles relating to the grant of interlocutory injunctions discussed in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 229 ALR 457 at [19] , [65] [72] and Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618. In particular, there is no need for FKP and FGUP to demonstrate a prima facie case or a serious question to be tried on the cross-claim as a condition of the grant of the relief set out in the draft short minutes of order. Proposed orders 1 and 2 do no more than facilitate the recordal by the Registrar of particulars of claims which are in fact made by FKP and FGUP, and which, for the reasons given above, will have a direct bearing on the fate of the Existing and Further Applications. Spirits submits that it is now well-established that an applicant for interlocutory relief must, as a threshold issue, prove that it has a 'prima facie case' for final relief. The test is sometimes expressed as, in the sense that if the evidence remains as it is, there is a probability that at the trial of the action the applicant will be held to be entitled to the final relief claimed. Australian Broadcasting Corp v O'Neill , restoring (if restoration were needed) Beecham Group v Bristol Laboratories Pty Ltd .


case_text: there to be a prima facie case that the Court can examine, and examine in accordance with the High Court's instructions, 'there must at least be some evidence' going to each element of the relevant cause of action: Springdale Comfort Pty Ltd v Electrical Trades Union of Workers (1986) ATPR 40-694 at 47,623; OD Transport Pty Ltd v Western Australian Government Railways Commission (1986) 13 FCR 270 at 279; Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees' Union (1987) 15 FCR 31 at 51; Kevlacat Pty Ltd v Trailcraft Marine Pty Ltd (1987) 79 ALR 534 at 536.


case_title: Kevlacat Pty Ltd v Trailcraft Marine Pty Ltd (1987) 79 ALR 534


case_text: the cross-claim, FKP and FGUP assert rights in relation to a number of registered trade marks which include or comprise one or more of the words STOLI, STOLICHNAYA and MOSKOVSKAYA, and seek relief to give effect to those rights. The Existing Applications all relate to trade marks which include or comprise one or more of the same words, as would any Further Applications, and are in respect of the same or similar goods. In these circumstances, FKP and FGUP say that the Existing and Further Applications are, or would be, derivative of the prior registrations which are the subject of the cross-claim. According to FKP and FGUP the use of a trade mark the subject of an Existing or Further Application would infringe one or more of the prior registrations on the basis that the respective trade marks are substantially identical or deceptively similar: see s 120 of the Act; the words STOLI, STOLICHNAYA and MOSKOVSKAYA are plainly central, distinctive elements of each mark; for those marks which incorporate label devices, the device elements are also similar in many cases. Moreover, the use of additional words or elements (such as a person's name) in conjunction with a registered trade mark does not avoid infringement of the trade mark, provided that it is being used for a trade mark purpose: see Mark Foys Ltd v Davies Coop & Co Ltd [1956] HCA 41 ; (1956) 95 CLR 190 at 205. According to FKP and FGUP, this would necessarily be so in the case of the trade marks the subject of the Existing and Further Applications. Put another way, the determination of the claims made by FKP and FGUP in the cross-claim will have a direct bearing on the validity or acceptability for registration of the Existing and Further Applications, given the similarity of the marks and the fact that the latter fall later in the 'queue'. The claims articulated in respect of the former therefore disclose an interest in respect of the latter.


case_title: OD Transport Pty Ltd v Western Australian Government Railways Commission (1986) 13 FCR 270


case_title: Springdale Comfort Pty Ltd v Electrical Trades Union of Workers (1986) ATPR 40-694


case_text: The duty and function of the chair is to preserve order and take care that the proceedings are conducted in a proper manner and the sense of the meeting is properly ascertained with regard to any question properly before the meeting ( National Dwellings Society v Sykes [1894] 3 Ch 159 per Chitty J at 162). Upon the chair rests the responsibility for making rulings as to the validity of matters. Some of those matters will be entirely procedural such as decisions concerning the putting of resolutions to the meeting. Others will involve determining an entitlement such as whether a member may vote by proxy having regard to a challenge to the validity of the proxy instrument, compliance with lodgement procedure or by reason of some other deficiency or restriction. The chair may foreshadow a ruling and entertain objections and discussion before deciding the question or invite discussion, then rule and note objections to the ruling.


case_text: In the course of considering an entitlement asserted by a member or a member's proxy as to particular subject matter giving rise to a ruling, facts may need to be considered by the chair. Those facts may be relevant matters known by the chair by reason of circumstances surrounding the calling of a meeting or facts learnt in the course of the meeting or a combination of fact-finding circumstances. Some such facts, in another context, have been described as 'emergent questions, questions of fact that have to be decided then and there' ( McLean Bros. & Rigg Ltd v Grice [1906] HCA 1 ; (1906) 4 CLR 835 at 860 per Barton J). A chair engaged in the conduct of a meeting is not in a position to undertake a 'voir dire' as to emergent factual contentions. He or she must hear the contentions of fact going to the question and decide the immediate question. A chair is not required to act judicially in deciding these questions before him or her. The chair is required to act 'bona fide' ( Corpique (No. 20) v Eastcourt (1989) 15 ACLR 586 at 596 per Cohen J) or at least in a way that is not 'neglectful' ( Corpique , per Cohen J at 596). On a question of whether the chair of a meeting of relevant members of a corporation, convened to consider a scheme of arrangement, had given members sufficient opportunity to debate the merits of the scheme, McLelland J, in Direct Acceptance Corporation Ltd (1987) 5 ACLC 1037 at 1041, said, 'However, on such a matter as this, the chairman as a matter of law has a wide discretion with which the court will not interfere unless the exercise of that discretion can be shown to be invalid, e.g. on the ground that it was exercised in bad faith' . In Fast Scout Ltd v Bergel & Ors (2001) 40 ACSR 376 , Templeman J considered, in the context of a ruling relating to the validity of proxies, that 'generally, a chairman's decision will be amenable to review by the court if he makes an error of law' . Assuming the chair has exercised the jurisdiction conferred upon him by the meeting and the relevant instruments in good faith, the notion that his or her decision will be amenable to review on a ground of error of law although supported by established authority is more recently supported by a decision of the Court of Appeal of Victoria in Link Agricultural Pty Ltd v Shanahan & Ors [1998] VSCA 3 ; (1998) 28 ACSR 498. Kenny JA with whom Batt JA and Buchanan J agreed, accepted that the powers exercisable by the chair are not unfettered and 'broadly speaking' the powers could not be exercised 'unlawfully' to deprive members of their votes (Kenny JA at 511). The decision taken by the chair to refuse Shanahan extra time to lodge his 'proxy holder card' after a particular deadline with the result that proxy voters lost the benefit of their right to vote, failed a test of legality [my term] because the chair's decision was not taken for the purpose of the power conferred by the Act (Kenny JA at pp 512 and 513). Kenny JA put the test in these terms, 'Whether or not there was error in the chairman's ruling depends on whether it was made in good faith and for [the] purpose. The ruling will be invalid if made in bad faith or for an ulterior or impermissible purpose' (Kenny JA at p 511). In Perera v Reilly (2006) 59 ACSR 317 , Murray J considered the intersection between s 253G of the Act and the approach to supervisory review of decisions of a chair of the meeting and said this: [45] The provision is designed to facilitate the despatch of corporate business by decisions taken at meetings. In that context, it has often been held that such a provision will operate as a privative provision, rendering the decision not amenable to judicial review if the power is exercised bona fide, albeit mistakenly ... at least in cases where there has been no error of law.


case_title: Corpique (No. 20) v Eastcourt (1989) 15 ACLR 586


case_title: Direct Acceptance Corporation Ltd (1987) 5 ACLC 1037


case_title: Fast Scout Ltd v Bergel & Ors (2001) 40 ACSR 376


case_title: Link Agricultural Pty Ltd v Shanahan & Ors [1998] VSCA 3 ; (1998) 28 ACSR 498


case_title: Perera v Reilly (2006) 59 ACSR 317


case_text: In Triden Contractors Ltd (1992) 30 NSWLR 615 at 616, McLelland J considered that, 'The chairman must act in good faith, in accordance with any relevant law [i.e. no error of law] and on reasonable grounds' . The obligation to act in good faith is understood as an obligation to act honestly and without ulterior motive. The obligation to act reasonably is an obligation not to act capriciously. A chair 'who makes an error of law which deprives a member of the statutory right to vote proxy may be corrected by the courts for technical misconduct' ( ANZ Nominees Limited v Allied Resources Corporation Limited & Ors (1984) 2 ACLC 783 per O'Bryan J at 789).


case_title: ANZ Nominees Limited v Allied Resources Corporation Limited & Ors (1984) 2 ACLC 783


case_text: The applicant contends that an error of law might well arise by reference to the analogue of supervisory review of administrative decision-making. In Byng v London Life Association Ltd [1990] 1 Ch 170; [1989] 1 All ER 560, the Court of Appeal applying Wednesbury principles held that a chair exercising powers as chair at a meeting of members of a public company would fall into error of law if the chair, on facts which he knew or ought to have known, failed to take into account all relevant factors, took into account irrelevant factors or reached a conclusion which no reasonable chair properly directing himself or herself to the chair's duties could have reached. Sir Nicholas Browne-Wilkinson, VC observed that the chair's decision 'must also be taken reasonably with a view to facilitating the purpose for which the power exists' ( Byng per Browne-Wilkinson, VC at p 189). In that sense, the question of whether the power is exercised reasonably is a function of the question of whether the decision facilitates the purpose for which the power was conferred. That is an error of law test. 72 If the approach to judicial review of administrative decisions is an applicable analogue for judicial review of decisions of a chair of a meeting of scheme members, having regard in part to the contextual provisions of the Act within which the chair of such a meeting discharges his or her role, the question to be determined in examining conclusions of fact or a process of reasoning leading to a conclusion of fact is whether there is any evidence before the chair upon which the decision could have been made irrespective of whether the Court would have reached that decision or drawn the same inference. However, care must be exercised when applying the authorities as they go to the exercise of the jurisdiction itself. 73 The position derived from the authorities on this question seems to me to be this.


case_text: Describing a process of reasoning as irrational, illogical or based upon an unsound approach to the assessment of a document (for example) or that findings are not based on inferences of fact supported on logical grounds, may merely be an emphatic way of 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]). It is necessary therefore to precisely identify the 'nature and quality' of the error of the administrative decision-maker and the legal principle that attracts a particular legal consequence, such as error of law, that is, the 'legal rubric under which a decision is challenged' ( MIMA; Ex parte S20/2002 per Gleeson CJ at [9]). 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 and 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 and 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 the constraints upon a court interfering with the decision-maker's assessment of the evidence, in exercising supervisory review of administrative decision-making, see Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35-36 per Brennan J.


case_title: Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179


case_title: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323


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: However, at common law, want of logic is not synonymous with error of law ( Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 , 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.' (his Honour's emphasis, Bond , per Mason CJ at 356). On the other hand, where a statute requires the decision-maker to discharge particular duties, 'irrationality of the kind described by Deane J in Australian Broadcasting Tribunal v Bond may involve non-compliance with the duty' ( MIMA; Ex parte S20/2002 per Gleeson CJ at [9]). In the context of the particular statutory framework relating to protection visas under the Migration Act 1958 (Cth) and the role and duty of the Refugee Review 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' and 'inadequacy of the material before the decision-maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdictional error' .


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12


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] observed that want of logic in drawing an inference will not of itself constitute an error of law. Their Honours also noted, however, that a 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. The question of whether there is evidence of a fact is a question of law and whether an inference can be drawn from facts is itself a question of law. In Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 ; (2001) 65 ALD 141 , Sundberg, Emmett and Finkelstein JJ, 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 different 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_title: NAMM of 2002 v MIMIA [2003] FCAFC 32


case_title: NACB v MIMIA [2003] FCAFC 235


case_title: NATC v MIMIA [2004] FCAFC 52


case_title: VWST v MIMIA [2004] FCAFC 286


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


case_outcome: affirmed

case_text: applicant sought a review by the AAT of both those decisions. On 10 December 2008, in Sleep v Repatriation Commission [2008] AATA 1100 , the AAT made the following decision: The Repatriation Commission decision of 5 July 2004, as affirmed by a review officer on 10 August 2007, which reduced Mr Sleep's rate of service pension with effect from 20 July 2004 in reflection of an assets test which included the value of property at $140,000, is affirmed.


case_text: on 10 December 2008, in Sleep v Repatriation Commission [2008] AATA 1101 , the AAT made the following decision: The decision of the Repatriation Commissioner dated 13 August 2007, as affirmed by a decision of a review officer dated 19 March 2008, which reduced Mr Sleep's rate of pension from 26 August 2007, is affirmed. It is from those two decisions that the applicant appealed to a judge of this Court pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). The appeals were heard together and the orders dismissing those appeals were made on 12 May 2009. It was not until 3 September 2009 that the applicant made an application for an extension of time to file and serve a notice of appeal. Even then one application only was made in respect of both matters.


case_text: It is submitted that the Tribunal ignored the appellant's claim that he was suffering from serious headaches and tension as a result of being tortured by the PSB in China. This is tied to the fifth particular, that the Tribunal was well aware of the appellant's health problems because he collapsed at the adjourned hearing. However as the Federal Magistrate observed at [20]-[21] these matters were considered by the Tribunal. The Tribunal adjourned the hearing twice. The appellant was afforded the opportunity to put further submissions in writing. The Tribunal concluded, having regard to the appellant's medical certificates, that his headaches was caused by hypertension and overwork and not as a result of mistreatment by Chinese authorities. It also found that the appellant's inability to give details of Falun Gong was by reason of his ignorance of the practices, rather than his health problems. It was well open to the Tribunal to so find: Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at [137] ; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at [67] ; W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]-[65]. 24 As the first respondent submitted and as I accept the Tribunal's decision was ultimately based on the vagueness of the appellant's claims; his ignorance of Falun Gong practises; and, based on country information, the improbability of a person of adverse interest to the Chinese authorities which the appellant claimed to be being given a passport and being able to easily leave China which the appellant did. Such reasoning based on credibility of testimony and consistency with independent country information was clearly within the Tribunal's jurisdiction: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at [67] per McHugh J; W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]-[65]. In any event no jurisdictional error arises in simply making a wrong finding of fact: Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at [137] . However I am persuaded that the findings of fact were well open to the Tribunal.


case_title: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259

case_text: The Federal Magistrate considered this generalised complaint in two possible ways. Firstly if this was a request at merits review then he correctly found that to be beyond the jurisdiction of the court: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272.


case_title: Minister for Immigration & Multicultural Affairs v Jia Le Geng [2001] HCA 17 ; (2001) 205 CLR 507

case_text: Secondly, if it was an allegation of bias then as he found correctly it was not particularised or supported by evidence. Such an allegation must of course be firmly and distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Le Geng [2001] HCA 17 ; (2001) 205 CLR 507.


case_title: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12

case_text: The appellant submitted that the Tribunal failed to either speak with the appellant's doctor or the Asylum Seekers Centre before making its decision. The Federal Magistrate at [21], correctly held that s 424 of the Act empowers but does not oblige the Tribunal to actively seek information. The Tribunal has no obligation to exercise its inquisitorial powers: WAEH of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 364 at [19] - [24] ; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at [43] .


case_title: NABE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 263 ; (2004) 144 FCR 1

case_text: The appellant submitted that the Tribunal ignored the fact that the appellant was seeking assistance from the Asylum Seekers Centre and that the Tribunal failed to contact an officer of that centre as the appellant had requested. The Tribunal is empowered but not obliged to seek out information. It was for the appellant to put his case to the Tribunal. It was entitled to decide his case by reference to his claims and the evidence put before it without looking further: NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 ; (2004) 144 FCR 1 at [61] .


case_title: Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407


case_title: WAEH of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 364


case_title: W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703


case_text: It operates where the applicant seeks to protect some specific or personal right by the making of the order: Acehill Investments Pty Ltd v Incitec Ltd [2002] SASC 344 at [29] per Debelle J. In Intercapital Holdings Ltd v M.E.H. Ltd & Ors (1988) 6 ACLC 1068 Brooking J in the Victorian Supreme Court was concerned with, relevantly, an application for an inspection of books of a company pursuant to s 265B of the then Companies (Victoria) Code. That statutory provision is substantially in the same terms as s 247A(1) of the Act . His Honour (at 1,074) considered as relevant to the questions of whether the applicant was acting in good faith and for a proper purpose that a reasonable shareholder in a company could take the view that his investment in that company may be adversely affected by a particular transaction and could take the view that he wished to investigate the question whether he should endeavour to cause legal proceedings to be taken whereby he or the company may in appropriate circumstances recover damages or compensation for wrongful acts associated with the transaction. In this case, although not dealing with one transaction but a number of transactions involving questions or concerns as to proper accounting in the respondent's books, the applicant is doing the very same. Access to the respondent's books will assist his investigation of concerns which may result in proceedings in his own right and/or in the name of the respondent.


case_text: Section 247A(1) expresses a composite notion of good faith and a proper purpose: Barrack Mines Ltd v Grants Patch Mining Ltd (No 2) [1988] 1 Qd R 606 and Knightswood Nominees Pty Ltd v Sherwin Pastoral Co Ltd (1989) 15 ACLR 151. By extension, in my opinion, this is also the position in respect of the requirement of good faith and proper purpose contained within s 247A(5). See Chuen v Laredo Pty Ltd [2005] WASC 58 at [59] .


case_outcome: followed

case_text: Where orders for inspection are sought under the regime found within s 247A(3) -(6), this will require, in my opinion, a consideration of the bases relied upon or to be relied upon in any foreshadowed application pursuant to s 237 of the Act . Accordingly, I respectfully agree, with the view expressed by Master Sanderson in Caveat Pty Ltd v Baillie & Ors [2002] WASC 83 at [24] - [25] . This approach was adopted by Commissioner Siopis SC, as he then was, in Chuen v Laredo Pty Ltd & Ors [2005] WASC 58 at [59] .


case_title: Chuen v Laredo Pty Ltd [2005] WASC 58

case_text: Section 247A(1) expresses a composite notion of good faith and a proper purpose: Barrack Mines Ltd v Grants Patch Mining Ltd (No 2) [1988] 1 Qd R 606 and Knightswood Nominees Pty Ltd v Sherwin Pastoral Co Ltd (1989) 15 ACLR 151. By extension, in my opinion, this is also the position in respect of the requirement of good faith and proper purpose contained within s 247A(5). See Chuen v Laredo Pty Ltd [2005] WASC 58 at [59] . 65 Where orders for inspection are sought under the regime found within s 247A(3) -(6), this will require, in my opinion, a consideration of the bases relied upon or to be relied upon in any foreshadowed application pursuant to s 237 of the Act . Accordingly, I respectfully agree, with the view expressed by Master Sanderson in Caveat Pty Ltd v Baillie & Ors [2002] WASC 83 at [24] - [25] . This approach was adopted by Commissioner Siopis SC, as he then was, in Chuen v Laredo Pty Ltd & Ors [2005] WASC 58 at [59] . 74 The respondent's counsel placed considerable emphasis upon the decision of Chuen v Laredo Pty Ltd [2005] WASC 58. His submission was that there was a striking resemblance between the facts of that case and the present in that it involved a disgruntled shareholder seeking to induce a better offer for his shares [41] by a threat that should such an offer not be received then an application for inspection of the company's books would be made under s 247A of the Act ; it involved management fees being paid by the respondent company to a related company; the level of directors' fees were in question; a loan had been written off; there was a level of hostility between the applicant and one of the directors of the respondent company; questions were raised concerning the financial statements of the respondent. 75 In that case the applicant in 2005 brought an application relevantly under s 247A of the Act in which he raised various questions concerning the accounts of the three respondent companies for the years 1993 to 1999. The facts in that case were complex and the result turned upon particular findings made by Commissioner Siopis SC as his Honour then was. Included in those findings were that the applicant failed to depose specifically as to the nature of the potential action against the respondents under s 236 of the Act ; that the applicant failed to advise the accountant who swore an affidavit on his behalf in support of his application as to the full extent of his knowledge of matters which he was seeking to investigate and indeed was content for an affidavit to be sworn by the accountant deposing to the need to investigate a matter as to which the applicant was already familiar; that the applicant failed to complain about the particular transactions which he was by his application seeking to investigate at the time of the transactions in question or within a reasonable time thereafter; several of the matters which the applicant sought to investigate occurred as much as seven years prior to the application; that at the time those transactions occurred the applicant was a director of the respondent; that many of the transactions were so old as likely to be statute barred in respect of any proposed proceedings in relation to them; that a considerable delay was involved in that a majority of matters in respect of which the applicant by its application sought inspection had been the subject of enquiries made by the applicant almost five years prior to the application with no explanation as to the reasons for delay; that the intention of the applicant in threatening to bring his application was to induce an acceptance of his offer to sell his shares by linking the threat of continuing his agitation to obtain inspection of the respondents' documents to his offer to sell his shares. 76 For these reasons amongst others Commissioner Siopis SC held that the applicant was not acting in good faith and that the inspection of the respondents' books was not for a purpose connected with applying for leave under s 237 of the Act , that is to say it was not for a proper purpose. 77 Whilst there are superficial similarities between that case and the present, they are, in my opinion, no more than that. That case turned largely on its own facts and for that reason is not of assistance to the resolution of the application before me. 78 Viewing the evidence as a whole I am not persuaded by the submissions of the respondent upon these issues and I am satisfied for the purposes of s 247A(1) of the Act that the applicant has demonstrated that he is acting in good faith and that inspection is to be made for a proper purpose and that in respect to the application governed by s 247A(3) -(6) of the Act that the applicant is also acting in good faith and that inspection is to be made for a purpose connected with applying for leave under s 237 of the Act ; or bringing proceedings with leave under that section. 79 The applicant has adduced evidence which condescends in considerable detail to his concerns which if made good upon an inspection of the respondent's books would inform either proceedings contemplated at the instance of the applicant in his own right under ss 232 and 234 of the Act and/or representative proceedings under ss 236 and 237 of the Act . 80 It follows that, in my opinion, orders for inspection of the respondent's books should be made. I will hear counsel as to the precise terms of those orders and the question of costs. I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 5 April 2007 Counsel for the Applicant: Mr D H Solomon Solicitors for the Applicant: Solomon Brothers Counsel for the Respondent: Mr A C H Quahe Solicitors for the Respondent: Wojtowicz Kelly Legal Date of Hearing: 15 February 2007 Date of Judgment: 5 April 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/503.html


case_title: Intercapital Holdings Ltd v M.E.H. Ltd & Ors (1988) 6 ACLC 1068


case_text: Section 247A(1) expresses a composite notion of good faith and a proper purpose: Barrack Mines Ltd v Grants Patch Mining Ltd (No 2) [1988] 1 Qd R 606 and Knightswood Nominees Pty Ltd v Sherwin Pastoral Co Ltd (1989) 15 ACLR 151. By extension, in my opinion, this is also the position in respect of the requirement of good faith and proper purpose contained within s 247A(5). See Chuen v Laredo Pty Ltd [2005] WASC 58 at [59] . 63 The right to apply under s 247A(1) confined as it is to members means that the applicant's purpose must be reasonably related to his or her status as a member: Knightswood Nominees Pty Ltd v Sherwin Pastoral Co Ltd (1989) 15 ACLR 151. I am satisfied that the applicant's purpose is proper in that respect.


case_title: Re Humes Ltd (1987) 5 ACLC 64

case_text: The applicant has no recollection of saying to Ms Dalton that he was looking forward to destroying the respondent. Even if I were to accept Ms Dalton's evidence I would not regard that as sufficient evidence that this application has as its predominant purpose the disruption of the respondent's business. There is clearly hostility between the applicant and Mr Gilmour. This of itself does not necessarily lead to a finding of lack of good faith and in this case I do not do so: Re Humes Ltd (1987) 5 ACLC 64 at [70]. 71 Nor am I persuaded that the applicant has been guilty of such delay as to evidence bad faith. The applicant had sought justification of certain financial information which, as a shareholder of longstanding, seriously concerned him. The respondent through Mr Gilmour brusquely refused to assist him. Shortly after leaving the employ of the respondent, after offers and counter-offers relating to the sale firstly of Mr Gilmour's shareholding and then the applicant's shareholding, formal demands for access to the respondent's books for inspection was made by the applicant's solicitors. Those requests proved futile and led shortly thereafter, as foreshadowed, to this application. 72 I do not consider that anything turns on the failure of the applicant to tender expert accounting evidence. As I indicated earlier the respondent through its counsel conceded that the figures relied upon by the applicant in its affidavits and written submissions were accurate. It does not require an accountant, in my view, for it to be discerned that there are serious concerns raised by the matters complained of in respect of the financial statements and tax returns to which the applicant points.


case_title: Comcare v Amorebieta (1996) 66 FCR 83

case_text: the course of the hearing, counsel for the applicant submitted that the Tribunal did not consider the submission, founded upon the observations of von Doussa J in O'Keefe v Comcare [1998] FCA 603 and of Mansfield J in Comcare v Moon [2003] FCA 569 ; (2003) 75 ALD 160 at [50] , consistent with the approach taken by Jenkinson J in Comcare v Amorebieta (1996) 66 FCR 83 that a finding of permanent impairment under Tables 9.5 or 9.6 was available despite Dr McGill's findings on examination. In that last-mentioned case, Jenkinson J said at 99: It was a further ground of appeal that the Tribunal, having found 'that there are occasions on which [the respondent] has a full range of movement if movement is to be measured in a technical sense', erred in law in failing to recognise that the word 'loss' in Table 9.6 and particularly in the phrase 'loss of less than half normal range of movement' requires that that degree of restriction of movement be always present. In that stark form the submission was perhaps not pressed. Nor do I accept it. The finding was based on some of the evidence by medical practitioners who at particular examinations found the respondent able to move within the normal range. But what is done on a particular occasion under medical observation is not determinative of the assessment which Table 9.6 requires.


case_title: Comcare v Davies (2008) 173 IR 294

case_text: reasons must be adequate they do not need to be self-contained their sufficiency can depend on the manner in which a case was conducted, and such matters as the 'basic stock of knowledge common to both parties': Cypressvale Pty Ltd v Retail Shopping Lease Tribunal [1995] QCA 187 ; [1996] 2 Qd R 462 per McPherson and Davies JJA at 492. Similar observations were more recently made by Flick J in Comcare v Davies (2008) 173 IR 294 at [31] and [32]: ... The nature and extent of this obligation [under s 43(2B) of the AAT Act] has been extensively canvassed. For the purposes of the resolution of the present appeal it is sufficient to note that the reasons of the Tribunal are 'meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed' : Minister for Immigration & Ethnic Affairs v Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272. But it is equally important 'to review the Tribunal's reasons to be satisfied that the Tribunal has in fact had regard to the matters which it must address' : Zhang v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 30 at [14] . 32. The extent of the reasoning provided in accordance with s 43(2B) must also be considered against the backdrop of the contentions advanced for resolution and the evidence presented. The Tribunal is exhorted by s 2A of the 1975 Act to 'pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick' . When carrying out its functions the Tribunal is also obliged to 'ensure that every party to a proceeding ... is given a reasonable opportunity to present his or her case' : s 39(1). The person who made the decision being reviewed by the Tribunal is also required to 'use his or her best endeavours to assist the tribunal to make its decision in relation to the proceeding' : s 33(1AA). (Emphasis added)


case_outcome: referred to


case_title: Cypressvale Pty Ltd v Retail Shopping Lease Tribunal [1995] QCA 187 ; [1996] 2 Qd R 462


case_text: adequacy of reasons provided, however, is also a matter of 'substance': Dodds v Comcare Australia (1993) 31 ALD 690. Burchett J at 691 there observed: The obligation to furnish reasons, and to furnish reasons which are adequate, is a very important obligation. It is a pillar of the system of administrative decision-making by the Tribunal, and it is essential that the Court should insist on its fulfilment. But it is the substance of the obligation that matters . Indeed, as Lord Sumner pointed out in SS Hontestroom v SS Sagaporack [1927] AC 37 at 50, even a Judge's reasons on a question of fact will not be vitiated by 'imperfections in form and expression'. Section 43 is not to be construed in a pedantic spirit, but sensibly. If the Tribunal's reasons exposed the logic of its decision, and contain findings on those matters of fact which are essential to that logic, it will not be easy to demonstrate a failure of compliance with the requirement to include 'findings on material questions of fact '. (Emphasis added) On reviewing [11] [18] of the Tribunal's reasons, one can discern two fundamental conclusions or findings on material questions of fact or mixed fact and law: (1) The finding at [13] that the Tribunal did not accept 'that the current condition suffered by Mrs Sagigi was a result of her employment'. (2) The finding at [13] that the Tribunal 'simply cannot make a finding that there was any relevant impairment or permanent impairment on the evidence before [it]'; and the similar finding at [18] that the Tribunal 'cannot find that she has any permanent impairment relevantly under Table 9.6'. The conclusion or finding in [19(1)] above is supported by reference to the following process of reasoning: (1) Inconsistencies in the evidence of the applicant in the Tribunal and the histories given to the various doctors (at [9] and [11]). (2) The evidence of Dr McGill 'that the back condition may be related to other factors or an underlying degenerative condition' (at [15]). (3) That Dr McGill's evidence was 'more plausible, given that he has seen this patient on three occasions, whereas Dr Berry and Dr Bodel have only seen her on two occasions' (at [15]); to which I would add, on three occasions over seven years, not five years as referred to at [12] of the Tribunal's reasons.


case_text: standard of perfection is not required. It is sufficient if the basis of the decision is apparent, and one can reasonably understand or discern why the decision was reached. In Housing Commission of New South Wales v Tatmar Pastoral Co [1983] 3 NSWLR 378 at 381, Hutley JA (with whom Samuels JA agreed) said: The extent to which a court must go in giving reasons is incapable of precise definition. A court must not nullify rights of appeal by giving no or nominal reasons, but there is no duty to expound reasons so as to facilitate appeals. This applies particularly to the situation where a judge has to decide between conflicting witnesses, including experts. The choice between conflicting experts may have to be a matter of judgment, not of detailed reasoning.


case_title: O'Keefe v Comcare [1998] FCA 603


case_text: In order to succeed in a claim for a breach of confidence, Bluescope and Castrip must first identify, with some specificity, information that is said to be confidential. Next, they must show that the information has the necessary quality of confidentiality. Finally, they must show that the information was received in such circumstances as to import an obligation of confidence. There may then be an injunction to restrain threatened disclosure and there may be an account of profits in respect of actual disclosure ( Corrs Pavey Whiting & Burn v Collector of Customs (1987) 14 FCR 434 at 443).


case_text: The claim by Bluescope and Castrip for an account of profits requires a determination of the profit derived by Mr Kelly and K.Con from any wrongful use or disclosure of the relevant information. The Court, in calculating the quantum of profit, must make such approximation as will do justice to the parties ( Dart Industries Inc v Decor Corporation Pty Ltd [1993] HCA 54 ; (1993) 179 CLR 101 at 119). 162 K.Con received sums totalling $1,484,238.16 from Danieli. K.Con paid $333,802 to Messrs Sorensen, Minter, Russell, Zancolich and their respective companies and incurred travelling and other expenses of $41,934.37. Bluescope and Castrip assert that the net amount of $1,108,501.79 is the profit derived by Mr Kelly and K.Con from their wrongful use or disclosure of the relevant information. 163 While that calculation of profit makes an allowance for amounts paid to Messrs Sorensen, Minter, Russell, Zancolich and their companies and travelling and other expenses, it makes no other allowance for the cost of deriving the fees. Nor does it make allowance for information provided to Danieli that did not consist of confidential information relating to Project M. Danieli received information and assistance from K.Con, in exchange for the fees of $1,484,238, that was not confidential information belonging to Bluescope and Castrip. It is tolerably clear that Danieli also obtained benefit derived from Mr Kelly's wealth of experience in steel making over some 40 years. It would not have been possible for Mr Kelly or K.Con to disclose the specific information that has been identified except through an individual who has Mr Kelly's wealth of experience in steel making. 164 Bluescope and Castrip contend that, without the confidential information relating to Project M, neither Mr Kelly nor K.Con would have been retained by Danieli at all. They say that the whole arrangement involving the Consultancy Agreement between K.Con, on the one hand, and Danieli, on the other, came about only by reason of the wrongful use of the confidential information obtained by Mr Kelly from Bluescope. They say that Danieli only paid K.Con in exchange for receiving confidential Project M information. Had K.Con not been in a position to provide confidential Project M information, Danieli would have paid nothing at all. Accordingly, they say, the net amount represents profit obtained by K.Con from unlawful conduct (see Dart Industries at 119-120). 165 It may be that an inference can be drawn that Danieli was interested in entering into arrangements with Mr Kelly and K.Con because of Mr Kelly's involvement with Project M. However, it by no means follows that Danieli's object was to obtain confidential information relating to Project M, in breach of Mr Kelly's obligations of confidence to his employer. Bluescope and Castrip do not contend, and they have certainly not established, that all of the information imparted by Mr Kelly, either directly or through K.Con, to Danieli involved a breach of Mr Kelly's obligations of confidence. On the other hand, it is for Mr Kelly to demonstrate the extent to which any benefit he received in connection with any breach of duty is attributable to his own effort, expertise and know how beyond the mere disclosure of confidential information.


case_text: There is a category of information that an employee must treat as confidential but which, once learned, necessarily remains in the head of the employee and becomes part of his own skill and knowledge. While that information may have been acquired in the course of the employer's business, the employee will be allowed to use his full skill and knowledge for his own benefit, even in competition with his former employer after he leaves that employment. Such information is often referred to as " know how ", being the skill and knowledge that an employee gains during the course of his employment, which is not capable of protection in favour of the employer. Even so, however, that type of information may be protected from use or disclosure by express contractual arrangement (see Faccenda Chicken Limited v Fowler [1985] FSR 105 and Wright v Gasweld Pty Ltd at 326F and 333G-334E). Such a contractual arrangement will be enforced unless it is contrary to public policy, as being an unreasonable restraint of trade. That is to say, it will not be enforced if its effect is to deprive an employee of the ability to earn a living without adequate compensation.


case_text: The object of the taking of accounts in a case such as this is to determine the profit derived by the wrong doer from the use of the confidential information. Whether it is appropriate to make an allowance in respect of Mr Kelly's skill, expertise and other expenses is a matter of judgment. As a general rule, consistently with the principle that a fiduciary must not profit from a breach of fiduciary duty, the Court will make allowance for skill, expertise and other expenses ( Warman International Ltd v Dwyer [1995] HCA 18 ; (1995) 182 CLR 544 at 562). The grant of an allowance will normally be a substitute for an apportionment of profits where a wrong doer mingled profits attributable to breach of duty and profits attributable to the wrong doer's efforts. That suggests that the onus of establishing that an allowance for skill, expertise and other expenses is called for, is on the wrong doer ( Harris v Digital Pulse Pty Ltd [2003] NSWCA 10 ; (2003) 56 NSWLR 298 at [335] ).


case_title: Warman International Ltd v Dwyer [1995] HCA 18 ; (1995) 182 CLR 544


case_text: In determining whether the information in question has the necessary quality of confidentiality, the fact that the information is jealously guarded by the claimant, that it is not readily made available to employees and that it could not, without considerable effort and risk, be acquired by others, is a relevant consideration. The fact that considerable skill and effort was actually expanded to acquire the information is also a relevant consideration ( Wright v Gasweld Pty Ltd (1991) 22 NSWLR 317 at 334). 90 There is a category of information that an employee must treat as confidential but which, once learned, necessarily remains in the head of the employee and becomes part of his own skill and knowledge. While that information may have been acquired in the course of the employer's business, the employee will be allowed to use his full skill and knowledge for his own benefit, even in competition with his former employer after he leaves that employment. Such information is often referred to as " know how ", being the skill and knowledge that an employee gains during the course of his employment, which is not capable of protection in favour of the employer. Even so, however, that type of information may be protected from use or disclosure by express contractual arrangement (see Faccenda Chicken Limited v Fowler [1985] FSR 105 and Wright v Gasweld Pty Ltd at 326F and 333G-334E). Such a contractual arrangement will be enforced unless it is contrary to public policy, as being an unreasonable restraint of trade. That is to say, it will not be enforced if its effect is to deprive an employee of the ability to earn a living without adequate compensation.


case_text: The consequence of such an order, if made, would have been to order that the documents produced by the Second Respondent to the Authority under compulsion of law were not to be returned to the Second Respondent but to the Applicant. This may have been a reason why the Second Respondent was joined as a party to the present proceedings. In most cases it will be the party upon whom a notice has been served requiring the production of documents who will be the party seeking that the notice be set aside: Australian Competition and Consumer Commission v George Weston Foods Limited [2003] FCA 601 , 129 FCR 298. Similarly, an applicant will be the entity whose premises are being compulsorily accessed: see, eg, Citibank Ltd v Federal Commissioner of Taxation (1988) 83 ALR 144 ; on appeal, see Commissioner of Taxation v Citibank Limited (1989) 20 FCR 403.


case_text: Moreover, the assertion of the Motor Trades Association that " it was plain beyond doubt that the documents sought were the Trustee's own books and records " is rejected. It is an assertion which, even if accepted, exposes no error of law in the approach adopted by the Authority and, in any event, is an assertion not established on the facts: Breen v Williams [1995] HCA 63 , 186 CLR 71 at 88 9 per Dawson and Toohey JJ. 46 A further ground separately addressed in oral submissions (albeit frankly accepted by Counsel for the Applicant as not being the strongest of the Grounds of Review ) was that of unreasonableness. Although it is a ground frequently relied upon, and perhaps has been given a more tightly confined application than it may legitimately have, it is nevertheless a ground which tends to be relied upon indiscriminately. To do so adds little to such prospects of success as a judicial review application may otherwise have and only invites consideration as to whether an applicant is essentially inviting the Court to embark upon an impermissible review of the merits of the decision. If unreasonableness is to be relied upon as a ground of review, careful consideration should be given by such an applicant as to whether it is a viable basis upon which a decision may separately be impugned. 47 Reliance upon the ground of unreasonableness in the present proceedings is but an instance of the Applicant seeking to propel the Court into a review of the merits of the decision of the Authority. The ground is rejected. It adds nothing and only detracts from the primary ground of review -- namely error of law.


case_title: Citibank Ltd v Federal Commissioner of Taxation (1988) 83 ALR 144


case_text: Some reliance was sought to be placed by the Applicant upon the decision of Hardie J in Collier Garland Properties Pty Ltd v O'Hair [1964] NSWR 775. In issue in that case was the following provision of the Companies Act 1961 (NSW): 171 ... (2) Every officer and agent of a corporation the affairs of which are being investigated under this Division shall if required by an inspector appointed under this Division produce to the inspector all books and documents in his custody or power and shall give to the inspector all assistance in connection with the investigation which he is reasonably able to give. (3) An inspector may, by notice in the prescribed form, require any officer or agent of any corporation whose affairs are being investigated pursuant to this Division to appear for examination on oath or affirmation (which he is hereby authorised to administer) in relation to its business; and the notice may require the production of all books and documents in the custody or under the control of that officer or agent. ... Of this provision Hardie J concluded at 780: ... The point is by no means free from doubt. On the whole I have come to the conclusion that s 171 (3) empowers the inspectors to inspect and examine the books at the place at which their production has been required and given, and contemplates that when such inspection and examination at that place is completed the books and documents shall remain there and revert to the possession and control of the person to whom the notice was given. ... 23 For present purposes, it may be accepted that such power as may be conferred by statute to compel the production of documents may at some point in time become exhausted. An investigation, for example, may have concluded that thereafter there is no power to acquire further documents and (arguably) no power to retain documents previously acquired. Any statutory power is conferred for a purpose and, once that purpose has been fulfilled, questions inevitably arise as to the return of the documents previously produced. But the fact that such questions arise, it is considered, does not support any conclusion that any decision to return documents (or not to return documents) is a decision necessarily taken pursuant to the statutory provision authorising a regulator to compel production. Each decision must inevitably be considered in the statutory context (if any) within which it may be made. 24 In summary, the decision of the Authority not to return the documents in the manner sought by the Applicant is not a decision made under, or pursuant, to s 255. The decision of Hardie J in Collier Garland Properties is no authority to the contrary. 25 The decision of the Authority did not " alter or otherwise affect legal rights or obligations ". Whatever legal rights that the Authority may have as against Mr Rickus in respect of the documents produced by him pursuant to the s 255 notice, and whatever may be his obligations vis à vis the Motor Trades Association, they remain. If the documents are the documents of the Trustee, any decision of the Authority has not affected that position. 26 Section 56 of the Australian Prudential Regulation Authority Act does not expressly or impliedly require or authorise any decision to be made. It is a section which creates an offence for " protected information " or for a " protected document " to be disclosed (s 56(2)) and further sets forth those disclosures which are not an offence (s 56(3) and s 56(4)). Any decision not to return documents is not a decision made " under " this provision.


case_title: Commissioner of Taxation v Citibank Limited (1989) 20 FCR 403


case_title: Commonwealth v Lyon [2003] FCAFC 284

case_text: The term " matter " as used in s 39B has the same meaning that it has in ss 75 , 76 and 77 of the Constitution : Commonwealth v Lyon [2003] FCAFC 284 at [24] , [2003] FCAFC 284 ; 133 FCR 265 at 272 per Branson, Madgwick and Hely JJ. The term " matter ", it has been said, " requires some immediate right, duty or liability to be established by the court ": Griffith University v Tang [2005] HCA 7 at [90] , [2005] HCA 7 ; 221 CLR 99 at 131 per Gummow, Callinan and Heydon JJ.


case_text: Section 255 and other like provisions confer a power to require the production of documents. The exercise of powers requiring the compulsory production of books should be carefully scrutinised by the Courts: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49 , 213 CLR 543 at 596. Justice Callinan there observed: [143] ... Creatures of the Executive of which this respondent is one are increasingly being armed with broader and more intrusive powers. That they are of these kinds requires, if anything, that the true and permissible ambit of the intrusion be carefully scrutinized and not be extended unnecessarily or in the teeth of unabridged (by legislation) fundamental, longstanding rights. ... 21 But s 255 does not expressly authorise the return of documents so produced. Nor does it impliedly do so. What happens to documents produced pursuant to s 255 and their subsequent return is simply not a subject-matter dealt with by that provision. It may be that the legislature should direct attention to the return of documents compulsorily acquired. It is not considered, however, that s 255 is the source of any authority pursuant to which the present decision of the First Respondent was taken.


case_title: Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission [2001] FCA 1296 , 68 ALD 107

case_text: Nor can reliance be placed by the Applicant upon s 11 of the Australian Prudential Regulation Authority Act as the source of the authority pursuant to which the decision was taken. A power of the kind conferred by s 11 does not authorise or require the making of any decision: cf Hutchins v Commissioner of Taxation (1996) 65 FCR 269 at 272; Salerno v National Crime Authority (1997) 75 FCR 133. As observed by the Full Court in Salerno , at 143: If a general authorisation in a statute for a decision by an organisation set up under that legislation is sufficient to make it a decision under the statute, and thus open to judicial review, every intra vires action of that organisation that has decisional effect and every kind of conduct engaged in by it for the purpose of making a decision will be examinable by the court. The potential for massive disruption of the organisation's activities that would be the consequence of such a conclusion is manifest. Appl'd: Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission [2001] FCA 1296 at [70] , [2001] FCA 1296 ; 113 FCR 230 at 250 1 per Finn J.


case_text: The fact that those statutory provisions must be construed does not of itself satisfy the requirement that the controversy or dispute between the parties must " arise under any law made by the Parliament ": Felton v Mulligan [1971] HCA 39 ; (1971) 124 CLR 367. The then Chief Justice observed at 374: The critical question in the case is whether the defence did involve the exercise of federal jurisdiction by the Supreme Court. It would do so if the matter before the Supreme Court became or involved by reason of the defence raised to the applicant's claim, either wholly or partly a matter arising under a law made by the Parliament, in this case the Matrimonial Causes Act : see Constitution s. 76(ii) and Judiciary Act s. 39(2). Further the matter arising under a law of the Parliament will have arisen if the suit could have been disposed of by deciding the matter, whether or not the suit was so disposed of : cf. Nelungaloo Pty . Ltd . v . The Commonwealth [1952] HCA 11 ; [(1952) 85 CLR 545] ; The Commonwealth v . Bank of New South Wales [(1949) 79 CLR 497]. It is of course not enough that a law made by the Parliament must be construed in the course of the decision of the case. There must be a matter arising under a law of the Parliament. The contrast between the language of s. 76(i.) and 76 (ii.) is relevant in this connexion. The point at which interpretation of the federal statute, prima facie an apparently incidental consideration, may give rise to a matter arising under the statute is not readily expressed in universally valid terms. But the distinction between the two situations must be maintained. Justice Walsh further observed at 408 9: A comparison between the terms of s. 76(i.) and those of s. 76(ii.) of the Constitution indicates that a distinction is to be drawn between a matter "arising under" a law of the Parliament and a matter which involves the interpretation of such a law. The fact that the interpretation of a law is involved does not necessarily mean that there is a matter arising under the law. But, in my opinion, there is a matter arising under the law if the source of the right claimed by the plaintiff or applicant or the source of a defence which asserts that the defendant or respondent is immune from the liability or obligation alleged against him is a law of the Parliament. I think that that view of what constitutes a matter arising under a law of the Parliament is in conformity with the statements made in R . v Commonwealth Court of Conciliation and Arbitration ; Ex parte Barrett [1945] HCA 50 ; [(1945) 70 CLR 141] by Latham C.J. and by McTiernan J. [(1945) 70 CLR, at p 173]. There Latham C.J. said: "If a right claimed is conferred by or under a federal statute, the claim arises under the statute" [(1945) 70 CLR, at p 154]. Likewise, in my opinion, if the answer made to a claim is that the defendant is free from the obligation asserted against him and that this freedom is conferred by an Act of the Parliament, the defence arises under that Act and the result is that there is before the Court a "matter" which arises under that Act. ... And Gibbs J, as his Honour then was, observed at 416: ... I regard it as now settled that a matter cannot be said to arise under a law made by the Parliament within s. 76 (ii.) simply because to decide the matter it is necessary to consider or construe the law. To adapt some of the language used in James v . South Australia [1927] HCA 32 ; [(1927) 40 CLR 1 at 40], in relation to s. 30 of the Judiciary Act , it may be said that a matter arises under a law made by the Parliament when a right, title, privilege or immunity is claimed under that law. A right, title privilege or immunity may be claimed under a law, either because the law is the source of the right, title, privilege or immunity or because the right, title, privilege or immunity can only be enforced by virtue of the law. 40 The point at which interpretation of a federal statute may give rise to a matter arising under that statute is " not readily expressed in universally valid terms ". But the distinction between the two situations, it has been said, must be maintained: Felton v Mulligan [1971] HCA 39 ; (1971) 124 CLR 367 at 374 per Barwick CJ. 41 Section 39B(1A)(c) does not confer jurisdiction on this Court to review the decisions of the Authority. 42 The conclusion that this Court has no jurisdiction to entertain the Amended Application renders it unnecessary to separately consider whether or not any Ground of Review has otherwise been established by the Applicant. As the question was briefly addressed, some limited comments may nevertheless be appropriate.