case_title: Robertson v Keith (1870) 1 VR (E) 11

case_text: the question of the operation of s 42(2)(e) of the TLA has been considered previously in the context of the Money for Living scheme in Australian Securities & Investments Commission, in the matter of Money for Living (Aust) Pty Ltd (Administrators Appointed) v Money for Living (Aust) Pty Ltd (Administrators Appointed) (No 2) [2006] FCA 1285 , where Finkelstein J made the following comments (at [24] [25]): I base this conclusion on s 42(2)(e) of the Transfer of Land Act 1958 (Vic) and the equivalent provision in the Torrens legislation in other States. The effect of s 42(2)(e) is that the estate of a registered proprietor of land (including the proprietor of a mortgage) is subject to the rights of a tenant in possession. In this area the relevant principles are clearly established. The first is that the possession of a tenant is notice of any right of the tenant affecting the land: McMahon v Swan [1924] VLR 397 , 406. The second is that, as Dixon J confirmed in Burke v Dawes (1938) 59 CLR 1, 17-18, s 72 of the Transfer of Land Act 1928 (Vic) (which is the forerunner of s 42) was not intended to apply merely to a tenancy as commonly understood. See also Downie v Lockwood [1965] VR 257 , 259 where Smith J said "As appears from the cases the exception in s. 42 (2) (e) is to be widely construed; and it is to be treated as producing the result that "any person in actual occupation of the land obtains as against any inconsistent registered dealing protection and priority for any equitable interest to which his occupation is incident, provided that at law his occupation is referable to a tenancy of sort, whether at will or for years". Thus, for the purposes of the section a purchaser under a contract, who is given possession by the vendor and is only a tenant at will, is protected in respect of his equitable ownership: Robertson v Keith (1870) 1 VLR(E) 11. So, too, is a vendor who remains in possession until the purchase price is paid: he is a tenant "whatever might be the legal denomination of the tenancy": The Commercial Bank of Australia Limited v McCaskill (1897) 23 VLR 10 , 12. It has also been held that an equitable life estate will prevail over a subsequent registered interest: Black v Poole (1895) 16 ALT 155. These principles will protect the tenancies granted to the clients (who it must be assumed were always in possession of their homes) over subsequent dealings with the land. Put another way, the clients' life tenancies are secure, that is their tenancies are "guaranteed" to survive any adverse claims made by subsequent registered proprietors and mortgagees, provided they (the clients) continue to pay $1.00 per annum by way of rent and do not vacate their home. Their Honours referred at various times in the judgment to Burke v Dawes , which they approved generally. Gibbs ACJ stated, at 140: In Burke v Dawes (1938) 59 CLR at 17 18; Dixon J discussed as follows the effect of an earlier Victorian statutory provision which corresponded to s 42(2)(e): In Victoria these words have received an interpretation and an application as a result of which any person in actual occupation of the land obtains as against any inconsistent registered dealing protection and priority for any equitable interest to which his occupation is incident, provided that at law his occupation is referable to a tenancy of some sort, whether at will or for years. Thus, a purchaser under a contract of sale, who at law is in possession as tenant at will of the vendor, has been held protected in respect of his equitable ownership as purchaser ( Robertson v Keith (1870) 1 V.R. (E.) 11 ; Sandhurst Mutual Permanent Investment Building Society v Gissing (1889) 15 VLR 329) , a lessee in respect of an option of purchase contained in his lease ( McMahon v Swan [1924] VLR 397) and a wife in respect of an equitable life interest claimed under an unsigned separation agreement made with her husband ( Black v Poole (1895) 16 ALT 155). a'Beckett J. decided the last named case in deference to previous decisions and against his own opinion, which he stated to be that 'those words were intended to refer to a tenancy as ordinarily understood arising out of an agreement under which the person in possession was allowed to occupy in consideration of some kind of rent or service of which the proprietor was to have the benefit'. The cases are collected and criticized by the late Dr Donald Kerr in his work on The Australian Lands Titles (Torrens) System (1927), at pp. 75 et seq. But the interpretation has stood for nearly seventy years, and it would, I think, be most undesirable now to undertake the re-examination of its correctness. Similar views were expressed by Latham C.J.(1938) 59 C.L.R. at p. 8 and by Evatt J. (1938) 59 C.L.R., at p. 24. McTiernan J. agreed with the remarks of Dixon J ((1938) 59 C.L.R., at p.27). The fifth member of the Court, Starke J., was perhaps not so definite in the expression of his opinion but he did not disagree with what the majority of the Court said on this point (1938) 59 C.L.R., at pp. 12-13. This question should therefore be regarded as settled. The interest of the appellants under the contract of sale from Craigie was within the protection given by s. 42(2)(e). However, it was decided in Burke v Dawes (1938) 59 C.L.R., at pp. 17-18 that s. 42(2)(e) does not give to a tenant in possession any greater protection than he would have had if the land were under the general law: see per Dixon J. (1938) 59 C.L.R., at p. 18, and per Starke J. (1938) 59 C.L.R., at p. 13. Evatt J., who dissented in the result, but whose views on this point were not in my opinion different from those accepted by the majority, said (1938) 59 C.L.R., at p. 25: In my opinion the effect of the exception in favour of every tenant of the land is to deprive the proprietor of the registered interest of the paramountcy which registration would normally confer. It follows that, in determining the competition between the tenant and the proprietor of the registered interest, the latter must be regarded as having been stripped of the benefit conferred by the fact of registration and as having been remitted to the position of holding an unregistered interest. In the present case the respondent is deprived by s. 42(2)(e) of the paramountcy which registration would otherwise have conferred. It then becomes necessary to consider whether, apart from registration, the interest of the respondent under the Creation of Easement will prevail over that which vested in the appellants by virtue of the contract of sale. This question depends on the effect of special condition 8 of the contract of sale. When an owner of land contracts to sell it to a purchaser there is no reason in principle why he should not reserve the right to grant an easement over the property sold or why he should not make the sale subject to the easement to be granted. If this is done effectively the easement when created will take priority over the equitable interest which was granted subject to it. Under the general law, apart from registration, the right of the owner of the easement will prevail over that of the purchaser, notwithstanding that he is in possession, and the provisions of s. 42(2)(e) will not give the purchaser any greater right. In Chesterfield v Pitisano [1964] V.R. 709 at p.713 , Smith J. said that a mortgage granted pursuant to a right reserved to the vendor by a contract of sale would take priority over the equitable interest of the purchaser, and that the rights of the mortgagee on registration would not be rendered subject by s. 42(2)(e) to the interest of the purchaser as a tenant in possession. I respectfully agree with his conclusion on this point. The question therefore is whether special condition 8 did make the sale subject to the easement to be granted. In my opinion the condition did have that effect. It is true that it did not in terms reserve the right to grant an easement, nor did it state that the sale was subject to the easement to be granted. However, the clause expressly stated that it was proposed to create an easement, and that the vendor should be entitled to the compensation paid when the easement was granted, and in my opinion these provisions plainly implied that the easement when granted was to be effective. The clause would be meaningless if the rights of the purchasers prevailed over the easement when it was created. In my opinion the effect of special condition 8 was that the Creation of Easement—not the option, as I have already explained—prevailed over the rights of the appellants. Section 42(2)(e) did not alter this position. It follows that the respondent became entitled to enter the subject land for the purpose of constructing the pipeline on 17 th December 1975 when the Creation of Easement was signed, but it was not entitled to enter for that purpose before that date. ...


case_outcome: distinguished

case_title: Rye v Rye [1962] AC 496

case_text: also argued that the retirees were not tenants and that an owner cannot lease land to himself or herself relying on Rye v Rye [1962] AC 496. It was said that prior to registration of MFLPH as proprietor, the retirees were owners of the properties and occupied the properties in this capacity. It was said they could not have an interest in a lease in these circumstances. In Rye v Rye , [1962] AC 496, the appellant and his brother carried on a partnership business, the profits of which were divisible between them in unequal shares. They had purchased in equal shares the premises used for the business and in order to reconcile their inequality as partners with their equal ownership of the premises they agreed orally to grant to the partnership a yearly tenancy of the premises at £500 per annum to be provided out of the partnership assets. The rent, which it was admitted was calculated from January, 1942, was payable on the usual quarter days and the first payment of rent was made and accepted on Lady Day, 1942. No time for the determination of the lease was agreed but, as the tenancy was an annual one, the law provided for its determination. After the brother's death in 1948, the respondent (his son) as an executor of his estate, became one of the owners of the premises. In 1950 the appellant took the respondent into partnership, but later the partnership was dissolved. After the determination of the partnership, the respondent continued to occupy a room on the first floor of the premises and carried on his own business from that room, although the appellant demanded possession of the room. The appellant brought an action claiming possession of the room on the basis that he was the surviving tenant under the yearly tenancy granted to the partnership in 1942 and was therefore entitled to exclusive possession of the premises as against the respondent. The case of Rye v Rye is, in my view, easily distinguishable from the present case if only because the agreements executed between MFLPH and the various retirees were agreements between two separate parties. Each of the parties still had separate and identifiable legal rights or interests under the arrangements entered into between the parties, and each was entitled to enforce its rights according to their terms. This is not a case of one person granting or purporting to grant a lease to himself or herself. Accordingly, I do not consider that Rye v Rye has any application to this proceeding.


case_outcome: cited

case_text: Honours referred at various times in the judgment to Burke v Dawes , which they approved generally. Gibbs ACJ stated, at 140: In Burke v Dawes (1938) 59 CLR at 17 18; Dixon J discussed as follows the effect of an earlier Victorian statutory provision which corresponded to s 42(2)(e): In Victoria these words have received an interpretation and an application as a result of which any person in actual occupation of the land obtains as against any inconsistent registered dealing protection and priority for any equitable interest to which his occupation is incident, provided that at law his occupation is referable to a tenancy of some sort, whether at will or for years. Thus, a purchaser under a contract of sale, who at law is in possession as tenant at will of the vendor, has been held protected in respect of his equitable ownership as purchaser ( Robertson v Keith (1870) 1 V.R. (E.) 11 ; Sandhurst Mutual Permanent Investment Building Society v Gissing (1889) 15 VLR 329) , a lessee in respect of an option of purchase contained in his lease ( McMahon v Swan [1924] VLR 397) and a wife in respect of an equitable life interest claimed under an unsigned separation agreement made with her husband ( Black v Poole (1895) 16 ALT 155). a'Beckett J. decided the last named case in deference to previous decisions and against his own opinion, which he stated to be that 'those words were intended to refer to a tenancy as ordinarily understood arising out of an agreement under which the person in possession was allowed to occupy in consideration of some kind of rent or service of which the proprietor was to have the benefit'. The cases are collected and criticized by the late Dr Donald Kerr in his work on The Australian Lands Titles (Torrens) System (1927), at pp. 75 et seq. But the interpretation has stood for nearly seventy years, and it would, I think, be most undesirable now to undertake the re-examination of its correctness. Similar views were expressed by Latham C.J.(1938) 59 C.L.R. at p. 8 and by Evatt J. (1938) 59 C.L.R., at p. 24. McTiernan J. agreed with the remarks of Dixon J ((1938) 59 C.L.R., at p.27). The fifth member of the Court, Starke J., was perhaps not so definite in the expression of his opinion but he did not disagree with what the majority of the Court said on this point (1938) 59 C.L.R., at pp. 12-13. This question should therefore be regarded as settled. The interest of the appellants under the contract of sale from Craigie was within the protection given by s. 42(2)(e). However, it was decided in Burke v Dawes (1938) 59 C.L.R., at pp. 17-18 that s. 42(2)(e) does not give to a tenant in possession any greater protection than he would have had if the land were under the general law: see per Dixon J. (1938) 59 C.L.R., at p. 18, and per Starke J. (1938) 59 C.L.R., at p. 13. Evatt J., who dissented in the result, but whose views on this point were not in my opinion different from those accepted by the majority, said (1938) 59 C.L.R., at p. 25: In my opinion the effect of the exception in favour of every tenant of the land is to deprive the proprietor of the registered interest of the paramountcy which registration would normally confer. It follows that, in determining the competition between the tenant and the proprietor of the registered interest, the latter must be regarded as having been stripped of the benefit conferred by the fact of registration and as having been remitted to the position of holding an unregistered interest. In the present case the respondent is deprived by s. 42(2)(e) of the paramountcy which registration would otherwise have conferred. It then becomes necessary to consider whether, apart from registration, the interest of the respondent under the Creation of Easement will prevail over that which vested in the appellants by virtue of the contract of sale. This question depends on the effect of special condition 8 of the contract of sale. When an owner of land contracts to sell it to a purchaser there is no reason in principle why he should not reserve the right to grant an easement over the property sold or why he should not make the sale subject to the easement to be granted. If this is done effectively the easement when created will take priority over the equitable interest which was granted subject to it. Under the general law, apart from registration, the right of the owner of the easement will prevail over that of the purchaser, notwithstanding that he is in possession, and the provisions of s. 42(2)(e) will not give the purchaser any greater right. In Chesterfield v Pitisano [1964] V.R. 709 at p.713 , Smith J. said that a mortgage granted pursuant to a right reserved to the vendor by a contract of sale would take priority over the equitable interest of the purchaser, and that the rights of the mortgagee on registration would not be rendered subject by s. 42(2)(e) to the interest of the purchaser as a tenant in possession. I respectfully agree with his conclusion on this point. The question therefore is whether special condition 8 did make the sale subject to the easement to be granted. In my opinion the condition did have that effect. It is true that it did not in terms reserve the right to grant an easement, nor did it state that the sale was subject to the easement to be granted. However, the clause expressly stated that it was proposed to create an easement, and that the vendor should be entitled to the compensation paid when the easement was granted, and in my opinion these provisions plainly implied that the easement when granted was to be effective. The clause would be meaningless if the rights of the purchasers prevailed over the easement when it was created. In my opinion the effect of special condition 8 was that the Creation of Easement—not the option, as I have already explained—prevailed over the rights of the appellants. Section 42(2)(e) did not alter this position. It follows that the respondent became entitled to enter the subject land for the purpose of constructing the pipeline on 17 th December 1975 when the Creation of Easement was signed, but it was not entitled to enter for that purpose before that date. ... It was accepted by Perpetual that an interest as a tenant in possession includes 'every interest in the land of ... a tenant which grows out of, and is not disseverable from, his right to continue in occupation as a tenant ...': Sandhurst Mutual Permanent Investment Building Society v Gissing (1889) 15 VLR 329 at 331; Burke v Dawes 59 CLR 1 at 13 per Starke J, or 'any equitable interest to which his occupation is incident, provided that at law his occupation is referable to a tenancy of some sort ....': Burke v Dawes 59 CLR 1 at 17 per Dixon J (McTiernan J concurring).


case_text: submitted that the mortgage was registered simultaneously with the transfer, with the result that the purchaser/mortgagor never obtained unencumbered title enabling the creation of a tenancy (referring to Abbey National Building Society v Cann [1991] 1 AC 56 at 93; Allsop v Marshall (1942) 59 WN (NSW) 159 at 161-162; Austin Construction Co (Australia) Ltd v Becketts Holdings Pty Ltd (1958) 75 WN (NSW) 444 at 447; Sogelease Australia Ltd v Boston Australia Ltd (1991) 26 NSWLR 1 at 5-8).


case_text: turn to the nature of the interest of each retiree. In my view, each retiree had an equitable interest in the land by reason of the fact that each was entitled to specific performance of the Contract of Sale or Agreement for Sale of Real Estate or the Deed of Agreement to the possession of the property as a tenant immediately upon settlement. The extent of that interest is to be determined by the form in which specific performance would be granted by a court. The retirees were entitled as against MFLPH to an order requiring MFLPH to sign and deliver to the retirees upon settlement a lease of the property upon the terms agreed, relevantly for life, subject to the condition that the retiree stay in possession for a certain period and pay the nominal rent (see Downie v Lockwood [1965] VR 257; Craddock Bros v Hunt [1923] 2 Ch 136; Chan v Cresdon Pty Ltd (1989) 168 CLR 242; Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315 at 332-333, [53]; Black v Garnock [2007] HCA 31 ; (2007) 230 CLR 438 at 449-450, [32] ). It is not necessary that specific performance be available at the time of the hearing: Bunny Industries Ltd v FSW Enterprises Pty Ltd [1982] Qd R 712. It is important to appreciate that the availability and the nature of specific performance is a precondition to the recognition of an equitable interest and the extent of that equitable interest in the property. Here, as I have said, a court, by reference to the terms of agreement between the retirees and MFLPH, would give each retiree possession of the land upon settlement by making an order that MFLPH sign and deliver a lease of the property to each retiree effective from the moment of settlement.


case_text: retirees contended that the doctrine applied in the context of leasehold interests (see Taylor Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1981] 1 All ER 897). The retirees argued that a representation was made by MFL sufficient to raise an estoppel that the retirees would acquire an interest for life in the relevant properties.


case_text: retirees alternatively submitted that equity comes to the relief of a plaintiff who has acted to its detriment on the basis of a fundamental assumption, the adoption of which the defendant has played such a part that it would be unfair or unjust if the defendant were left free to ignore it - equity intervening on the footing that it would be unconscionable for the defendant to deny the assumption (see Grundt v Great Boulder Proprietary Gold Mines Limited [1937] HCA 58 ; (1937) 59 CLR 641 at 675; Thompson v Palmer [1933] HCA 61 ; (1933) 49 CLR 507 at 547; and Waltons Stores (Interstate) Limited v Maher [1988] HCA 7 ; (1988) 164 CLR 387 and 404 (per Mason CJ and Wilson J)).


case_title: Waltons Stores (Interstate) Limited v Maher [1988] HCA 7 ; (1988) 164 CLR 387


case_outcome: discussed

case_title: Zimbler v Abrahams [1903] 1 KB 577

case_text: whether this be the correct position or not, unlike the position in Lace v Chantler [1944] KB 368 , which was relied upon by Perpetual, in this proceeding the tenancy agreement can be construed as though it were a grant of a freehold life tenancy. The tenancy agreements in this proceeding are very similar to the agreement in Zimbler v Abrahams [1903] 1 KB 577, where the agreement was construed as a lease for life. Zimbler was treated as being correctly decided by Lord Greene MR in Lace . In fact, Lord Greene MR said in discussing Zimbler that if the contract was construed as an agreement to grant a lease for life, one could understand it being so treated and specifically enforceable (at 372).


case_outcome: referred to

case_title: Torpedoes Sportswear Pty Limited v Thorpedo Enterprises Pty Limited [2003] FCA 901 ; [2003] 59 IPR 318

case_text: The onus is on the opponent to establish that one of the grounds is made out. Before the delegate the applicant was the opponent. Different views have been expressed in the authorities as to the standard at which the onus must be discharged. There are decisions to the effect that the opposition should be upheld only if the Court is satisfied that the trade mark should clearly not be registered: Torpedoes Sportswear Pty Limited v Thorpedo Enterprises Pty Limited [2003] FCA 901 ; (2003) 59 IPR 318 and Kowa Company Ltd v N V Organon (2005) 66 IPR 131. See also Lomas v Winton Shire Council (2002) FCAFC 413 at [17] to [19], Austereo Pty Ltd v DMG Radio (Aust) Pty Ltd (2004) 61 IPR 257 at [4] and McCorquodale v Masterson ( McCorquodale ) (2004) 63 IPR 582 at [24].


case_title: Kowa Company Ltd v N V Organon (2005) 66 IPR 131


case_title: Lomas v Winton Shire Council [2002] FCAFC 413


case_title: Austereo Pty Ltd v DMG Radio (Aust) Pty Ltd (2004) 61 IPR 257


case_outcome: applied

case_title: McCorquodale v Masterson (2004) 63 IPR 582

case_text: The onus is on the opponent to establish that one of the grounds is made out. Before the delegate the applicant was the opponent. Different views have been expressed in the authorities as to the standard at which the onus must be discharged. There are decisions to the effect that the opposition should be upheld only if the Court is satisfied that the trade mark should clearly not be registered: Torpedoes Sportswear Pty Limited v Thorpedo Enterprises Pty Limited [2003] FCA 901 ; (2003) 59 IPR 318 and Kowa Company Ltd v N V Organon (2005) 66 IPR 131. See also Lomas v Winton Shire Council (2002) FCAFC 413 at [17] to [19], Austereo Pty Ltd v DMG Radio (Aust) Pty Ltd (2004) 61 IPR 257 at [4] and McCorquodale v Masterson ( McCorquodale ) (2004) 63 IPR 582 at [24]. 49 In order to succeed under s 43 of the Act, an opponent must show that there is a connotation in the proposed trade mark, and that because of that connotation, the use of the mark would be likely to deceive or cause confusion. See McCorquodale at [25] and [26]. 50 The word "connotation" is defined in the Oxford English Dictionary as: "1 The signifying in addition; inclusion of something in the meaning of the word besides what it primarily denotes; implication. b That which is implied in a word in addition to its essential or primary meaning." 52 Whether there is a likelihood of deception or confusion is to be answered "not by reference to the manner in which the applicant for registration has used its mark in the past, but by reference to the use to which it can properly put the mark if it becomes registered": Berlei v Hestia Industries Ltd [1973] HCA 43 ; (1973) 129 CLR 353 at 362. Here, the GLENN OAKS mark is the relevant mark in suit. The surrounding circumstances provide guidance as to what is proper, normal and fair use of the respondent's mark and whether confusion exists: McCorquodale at [52]-[53] and [60] in particular. See also, Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd [1953] HCA 73 ; (1954) 91 CLR 592 at 494-495, Registrar of Trade Marks v Woolworths (Woolworths Metro) [1999] FCA 1020 ; (1999) 45 IPR 411 at [50] and Johnson & Johnson v Kalnin (1993) 26 IPR 435 at 438.


case_text: On the other hand, Gyles J in Pfizer Products Inc v Karam (2006) 70 IPR 599 was of the view that the opponent has simply to establish a ground of opposition; not clearly establish a ground. 10 I need not enter upon this controversy, because the outcome of the appeal does not differ according to which approach is adopted. 11 The applicant's case was primarily based on ss 43 and 60. Section 43 provides: "An application for the registration of a trade mark in respect of particular goods or services must be rejected if, because of some connotation that the trade mark or a sign contained in the trade mark has, the use of the trade mark in relation to those goods or services would be likely to deceive or cause confusion."


case_title: Shell Co of Australia Ltd v Esso Standard Oil (Aust) Ltd [1961] HCA 75 ; (1963) 109 CLR 407

case_text: Customers are not to be credited with any "high perception or habitual caution". On the other hand, "exceptional carelessness or stupidity may be disregarded": Australian Woollen Mills Limited v. F. S. Walton & Co Ltd ( Woollen Mills ) [1937] HCA 51 ; (1937) 58 CLR 641 at 658 and Woolworths Metro at [49]. In Shell Co of Australia Ltd v Esso Standard Oil (Aust) Ltd ( Shell ) [1961] HCA 75 ; (1963) 109 CLR 407 at 410 the High Court said that deceptive similarity must be considered against the "background of the usages in the particular trade." See also Berlei v Hestia Industries Ltd [1973] HCA 43 ; (1973) 129 CLR 353 at 362 per Mason J.


case_title: MID Sydney Pty Ltd v Australian Tourism Co Ltd (1998) 42 IPR 561

case_text: The Full Court held in favour of Rosemount on the basis that the second element of both marks - 'Grace' and 'Gold' - were "peculiar and distinctive", sounding different and evoking quite distinct impressions: Henschke at [57]. In applying the relevant tests, the Court considered the characteristics of involved and uninvolved consumers in the market, saying at [41]-[42]: "So, in this case, no doubt it was relevant to know that the wine market is a crowded one but that, although names incorporating topographical or geographical references are common, 'Hill of ...' is almost unique. Equally, we see no reason to doubt that the characteristics of consumers of wine, and of particular categories of consumers, were relevant; so too was the way in which wine is marketed, including -- for example -- the way wines are commonly described in restaurant wine lists. The significance of surrounding circumstances of that nature was discussed in the judgment of the Full Court in MID Sydney Pty Ltd v Australian Tourism Co Ltd (1998) 90 FCR 236 at 245 6; 42 IPR 561: such circumstances provide the context for consideration of the question whether a near resemblance between two marks is likely to deceive or cause confusion. " (Emphasis added)


case_title: CA Henschke & Co v Rosemount Estates Pty Ltd (2001) 52 IPR 42

case_text: Second, involved and uninvolved purchasers of bourbon and scotch whisky products review product labels. This is the fair and normal way in which consumers behave. In this case, confusion is mitigated by the circumstances in which such products are bought and sold. Bourbon products are typically labelled as bourbon, bourbon whiskey or Tennessee whiskey. Importantly, a consumer of these products must be 18 years of age. Bourbon products are much more expensive than impulse products such as soft drinks and confectionary: cf. All-Fect at [41] and Shanahan's Australian Law of Trade Marks & Passing Off 3 rd ed (Shanahan), 176 and 211-212. Purchasers of alcohol generally tend to be discerning in their purchasing habits: cf Henschke & Co v Rosemount Estates Pty Ltd ( Henschke ) (2001) 52 IPR 42 and Shanahan at 211-212. Where goods are denoted as being from a particular country, this constitutes another factor that reduces the possibility of confusion: Green's Application (1946) 64 RPC 14. 68 A more recent decision, not dissimilar to the present case, is Henschke , albeit an infringement case. The marks in issue were: • Hill of Grace (owned by Henschke, being the registered mark used on bottles of wine) • Hill of Gold (owned by Rosemount, being the alleged infringing mark used on bottles of wine). 69 The Full Court held in favour of Rosemount on the basis that the second element of both marks - 'Grace' and 'Gold' - were "peculiar and distinctive", sounding different and evoking quite distinct impressions: Henschke at [57]. In applying the relevant tests, the Court considered the characteristics of involved and uninvolved consumers in the market, saying at [41]-[42]: "So, in this case, no doubt it was relevant to know that the wine market is a crowded one but that, although names incorporating topographical or geographical references are common, 'Hill of ...' is almost unique. Equally, we see no reason to doubt that the characteristics of consumers of wine, and of particular categories of consumers, were relevant; so too was the way in which wine is marketed, including -- for example -- the way wines are commonly described in restaurant wine lists. The significance of surrounding circumstances of that nature was discussed in the judgment of the Full Court in MID Sydney Pty Ltd v Australian Tourism Co Ltd (1998) 90 FCR 236 at 245 6; 42 IPR 561: such circumstances provide the context for consideration of the question whether a near resemblance between two marks is likely to deceive or cause confusion. " (Emphasis added)


case_title: Registrar of Trade Marks v Woolworths [1999] FCA 1020 ; (1999) 45 IPR 411

case_text: Whether there is a likelihood of deception or confusion is to be answered "not by reference to the manner in which the applicant for registration has used its mark in the past, but by reference to the use to which it can properly put the mark if it becomes registered": Berlei v Hestia Industries Ltd [1973] HCA 43 ; (1973) 129 CLR 353 at 362. Here, the GLENN OAKS mark is the relevant mark in suit. The surrounding circumstances provide guidance as to what is proper, normal and fair use of the respondent's mark and whether confusion exists: McCorquodale at [52]-[53] and [60] in particular. See also, Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd [1953] HCA 73 ; (1954) 91 CLR 592 at 494-495, Registrar of Trade Marks v Woolworths (Woolworths Metro) [1999] FCA 1020 ; (1999) 45 IPR 411 at [50] and Johnson & Johnson v Kalnin (1993) 26 IPR 435 at 438.


case_title: Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd [1953] HCA 73 ; (1954) 91 CLR 592


case_title: Coca-Cola Co v All-Fect Distributors Ltd (1998) 43 IPR 47

case_text: In Coca-Cola Co v All-Fect Distributors Ltd (All-Fect) (1998) 43 IPR 47 at [41], albeit an infringement case, the Full Court said: "...the likelihood of deception or confusion involves an assessment of what would be the probable visual impression on customers or potential customers which would be produced as a result of the "notional normal and fair use" of the marks. See Gardenia Overseas Pty Ltd v The Garden Co Ltd (1994) 29 IPR 485 at 493." 60 Second, involved and uninvolved purchasers of bourbon and scotch whisky products review product labels. This is the fair and normal way in which consumers behave. In this case, confusion is mitigated by the circumstances in which such products are bought and sold. Bourbon products are typically labelled as bourbon, bourbon whiskey or Tennessee whiskey. Importantly, a consumer of these products must be 18 years of age. Bourbon products are much more expensive than impulse products such as soft drinks and confectionary: cf. All-Fect at [41] and Shanahan's Australian Law of Trade Marks & Passing Off 3 rd ed (Shanahan), 176 and 211-212. Purchasers of alcohol generally tend to be discerning in their purchasing habits: cf Henschke & Co v Rosemount Estates Pty Ltd ( Henschke ) (2001) 52 IPR 42 and Shanahan at 211-212. Where goods are denoted as being from a particular country, this constitutes another factor that reduces the possibility of confusion: Green's Application (1946) 64 RPC 14. 62 Third, there is no evidence that the GLENN OAKS mark would be used or would be likely to be used on a bottle of bourbon labelled solely as 'whisky' or 'whiskey'. While that does not limit the prospective use of a label of this nature, I infer from the absence of such evidence that such use would not be in the fair and normal course: Woollen Mills at 658, Woolworths Metro at [49] and All-Fect at [41]. In my view, the hypothetical scenario that the applicant proffers is one that will not, in all likelihood, eventuate. It cannot, therefore, lead to consumer confusion for the purposes of the Act. However, to cover this hypothetical case, the Court's order will state that bourbon in the statement of goods does not include bourbon which is labelled only as 'whiskey' or 'whisky'. 71 The relevant surrounding circumstances provide additional reasons why there would be marginal (if any) confusion. Carelessness or stupidity are considerations to be disregarded in any comparative analysis. This consideration has greater weight in a market where the purchase of products is not one of impulse, but requires some degree of consideration. Unlike All-Fect , this case does not deal with confectionary that targets consumers of less discerning habits, such as children. A purchaser must be at least 18 years of age and would, in all likelihood, consider the second feature of the marks. There is no deceptive similarity between the marks. 72 Similarly here, the point of difference is the second element of both marks: OAKS and LIVET. What appears at [71] to [72] is equally applicable in this comparison. OAKS and LIVIT do not hold the same meaning, the marks are vastly different in a visual and aural sense. 73 There is no deceptive similarity between the GLENN OAKS and GLENMORANGIE marks. Again, the second feature in the marks is distinct both visually and aurally. It is this feature that the consumer would be drawn to in terms of identifying a difference between the brands. Even allowing for imperfect recollection, there is no deceptive similarity between the marks.


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

case_text: Customers are not to be credited with any "high perception or habitual caution". On the other hand, "exceptional carelessness or stupidity may be disregarded": Australian Woollen Mills Limited v. F. S. Walton & Co Ltd ( Woollen Mills ) [1937] HCA 51 ; (1937) 58 CLR 641 at 658 and Woolworths Metro at [49]. In Shell Co of Australia Ltd v Esso Standard Oil (Aust) Ltd ( Shell ) [1961] HCA 75 ; (1963) 109 CLR 407 at 410 the High Court said that deceptive similarity must be considered against the "background of the usages in the particular trade." See also Berlei v Hestia Industries Ltd [1973] HCA 43 ; (1973) 129 CLR 353 at 362 per Mason J. 62 Third, there is no evidence that the GLENN OAKS mark would be used or would be likely to be used on a bottle of bourbon labelled solely as 'whisky' or 'whiskey'. While that does not limit the prospective use of a label of this nature, I infer from the absence of such evidence that such use would not be in the fair and normal course: Woollen Mills at 658, Woolworths Metro at [49] and All-Fect at [41]. In my view, the hypothetical scenario that the applicant proffers is one that will not, in all likelihood, eventuate. It cannot, therefore, lead to consumer confusion for the purposes of the Act. However, to cover this hypothetical case, the Court's order will state that bourbon in the statement of goods does not include bourbon which is labelled only as 'whiskey' or 'whisky'. 67 That passage was cited with approval in Cooper Engineering Co. Pty Ltd v Sigmund Pumps Limited [1952] HCA 15 ; (1952) 86 CLR 536 at 538 and in Woollen Mills at 658, where Dixon and McTiernan JJ described the comparative analysis as follows: "In deciding this question, the marks ought not, of course, to be compared side by side. An attempt should be made to estimate the effect or impression produced on the mind of potential customers by the mark or device for which the protection of an injunction is sought. The impression or recollection which is carried away and retained is necessarily the basis of any mistaken belief that the challenged mark or device is the same. The effect of spoken description must be considered. If a mark is in fact or from its nature likely to be the source of some name or verbal description by which buyers will express their desire to have the goods, then similarities both of sound and of meaning play an important part. The usual manner in which ordinary people behave must be the test of what confusion or deception may be expected. Potential buyers of goods are not to be credited with any high perception or habitual caution. On the other hand, exceptional carelessness or stupidity may be disregarded. The course of business and the way in which the particular class of goods are sold gives, it may be said, the setting, and the habits and observation of men considered in the mass affords the standard. Evidence of actual cases of deception, if forthcoming, is of great weight."


case_text: Whether there is a likelihood of deception or confusion is to be answered "not by reference to the manner in which the applicant for registration has used its mark in the past, but by reference to the use to which it can properly put the mark if it becomes registered": Berlei v Hestia Industries Ltd [1973] HCA 43 ; (1973) 129 CLR 353 at 362. Here, the GLENN OAKS mark is the relevant mark in suit. The surrounding circumstances provide guidance as to what is proper, normal and fair use of the respondent's mark and whether confusion exists: McCorquodale at [52]-[53] and [60] in particular. See also, Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd [1953] HCA 73 ; (1954) 91 CLR 592 at 494-495, Registrar of Trade Marks v Woolworths (Woolworths Metro) [1999] FCA 1020 ; (1999) 45 IPR 411 at [50] and Johnson & Johnson v Kalnin (1993) 26 IPR 435 at 438. 55 Customers are not to be credited with any "high perception or habitual caution". On the other hand, "exceptional carelessness or stupidity may be disregarded": Australian Woollen Mills Limited v. F. S. Walton & Co Ltd ( Woollen Mills ) [1937] HCA 51 ; (1937) 58 CLR 641 at 658 and Woolworths Metro at [49]. In Shell Co of Australia Ltd v Esso Standard Oil (Aust) Ltd ( Shell ) [1961] HCA 75 ; (1963) 109 CLR 407 at 410 the High Court said that deceptive similarity must be considered against the "background of the usages in the particular trade." See also Berlei v Hestia Industries Ltd [1973] HCA 43 ; (1973) 129 CLR 353 at 362 per Mason J.


case_title: Dunn's Trade Mark (1890) 7 RPC 311

case_text: In Dunn's Trade Mark (1890) 7 RPC 311 at 318-319 Lord Macnaghten said that a tribunal should refuse to register "words which involve a misleading allusion or suggestion of that which is not strictly true, as well as words which contain a gross and palpable falsehood". His Lordship's comments were referable to the principle underlying a predecessor of s 43. In two Trade Mark Office decisions which applied Lord Macnaghten's observations, connotation was said to be more than a mere "allusion" or "suggestion": see Aktion Zahnfreundlich v Suntory Limited (1998) 42 IPR 593 and Effem Foods Pty Ltd v Star-Kist Foods, Inc (2000) 50 IPR 121.


case_title: Suntory Limited v Aktion Zahnfreundlich [1998] 42 IPR 593


case_title: Effem Foods Pty Ltd v Star-Kist Foods, Inc [2000] 50 IPR 121


case_title: Johnson & Johnson v Kalnin (1993) 26 IPR 435


case_text: First, for both involved and uninvolved purchasers of bourbon products, the words Glen or Glenn is more likely to be associated with a person's name than with a place denoting Scottish origin. Most uninvolved scotch whisky consumers, particularly those of pre-mixed drinks, would also think of a person's name before thinking of a Scottish place. The LMMA Report indicates that scotch whisky drinkers prefer pre-mixed drinks. There was no evidence of any pre-mixed drinks with the name Glen or Glenn. Involved scotch whisky consumers are in the same position. Consumers in the involved malt whisky class are discerning in their choice and are very knowledgeable about the products they purchase. Purchasing habits are more refined, which lessens the chance of confusion. Glen or Glenn, as a person's name, overshadows the connotation propounded by the applicant. Accordingly, that connotation is not strong enough to cause "enough persons in the relevant public to be deceived or confused": Carlton & United Breweries v Royal Crown (2001) 53 IPR 599 at 606; The Kendall Co v Mulsyn Paint and Chemicals ( Kendall ) [1963] HCA 1 ; (1963) 109 CLR 300 at 305.


case_title: The Kendall Co v Mulsyn Paint and Chemicals [1963] HCA 1 ; (1963) 109 CLR 300


case_title: Green' Appn (1946) 64 RPC 14

case_text: Second, involved and uninvolved purchasers of bourbon and scotch whisky products review product labels. This is the fair and normal way in which consumers behave. In this case, confusion is mitigated by the circumstances in which such products are bought and sold. Bourbon products are typically labelled as bourbon, bourbon whiskey or Tennessee whiskey. Importantly, a consumer of these products must be 18 years of age. Bourbon products are much more expensive than impulse products such as soft drinks and confectionary: cf. All-Fect at [41] and Shanahan's Australian Law of Trade Marks & Passing Off 3 rd ed (Shanahan), 176 and 211-212. Purchasers of alcohol generally tend to be discerning in their purchasing habits: cf Henschke & Co v Rosemount Estates Pty Ltd ( Henschke ) (2001) 52 IPR 42 and Shanahan at 211-212. Where goods are denoted as being from a particular country, this constitutes another factor that reduces the possibility of confusion: Green's Application (1946) 64 RPC 14.


case_text: The key issue under s 60 is a comparison between the GLENN OAKS mark and marks used before its priority date. The approach in Pianotist Co's Application (1906) 23 RPC 774 at 777 is oft cited. There, Parker J said: "You must take the two words. You must judge of them, both by their look and by their sound. You must consider the goods to which they are applied. You must consider the nature and kind of customer who would be likely to buy those goods. In fact, you must consider all of the surrounding circumstances; and you must further consider what is likely to happen if each of those trade marks are used in a normal way as a trade mark for the goods of the respective owners of the marks." 80 Beck Koller at 83 indicates that family marks are only to be regarded as one of the "surrounding circumstances which is required to be taken into account" when making a comparison. Pianotist , as approved in High Court authorities, remains the primary test of deceptive similarity. Therefore, the existence of family marks is only a relevant factor in the totality of the assessment of whether there is a likelihood of deception or confusion. In this case, it supports the respondent.


case_text: That passage was cited with approval in Cooper Engineering Co. Pty Ltd v Sigmund Pumps Limited [1952] HCA 15 ; (1952) 86 CLR 536 at 538 and in Woollen Mills at 658, where Dixon and McTiernan JJ described the comparative analysis as follows: "In deciding this question, the marks ought not, of course, to be compared side by side. An attempt should be made to estimate the effect or impression produced on the mind of potential customers by the mark or device for which the protection of an injunction is sought. The impression or recollection which is carried away and retained is necessarily the basis of any mistaken belief that the challenged mark or device is the same. The effect of spoken description must be considered. If a mark is in fact or from its nature likely to be the source of some name or verbal description by which buyers will express their desire to have the goods, then similarities both of sound and of meaning play an important part. The usual manner in which ordinary people behave must be the test of what confusion or deception may be expected. Potential buyers of goods are not to be credited with any high perception or habitual caution. On the other hand, exceptional carelessness or stupidity may be disregarded. The course of business and the way in which the particular class of goods are sold gives, it may be said, the setting, and the habits and observation of men considered in the mass affords the standard. Evidence of actual cases of deception, if forthcoming, is of great weight."


case_title: Renaud Cointreau & Cie v Cordon Bleu International Ltee (2001) 52 IPR 382


case_text: In Coca-Cola Co v All-Fect Distributors Ltd (All-Fect) (1998) 43 IPR 47 at [41], albeit an infringement case, the Full Court said: "...the likelihood of deception or confusion involves an assessment of what would be the probable visual impression on customers or potential customers which would be produced as a result of the "notional normal and fair use" of the marks. See Gardenia Overseas Pty Ltd v The Garden Co Ltd (1994) 29 IPR 485 at 493." 70 The GLENN OAKS mark has two elements GLENN and OAKS. Despite being a single word, the GLENFIDDICH mark also has two elements. The first element of both marks is substantially the same - GLENN and GLEN. It is the second that requires closer attention. OAKS and FIDDICH are quite different. • OAKS and FIDDICH do not have similar meanings, if the latter has one at all. In any event, confusion is mitigated when one word has no readily apparent meaning: Gardenia Overseas Pty Ltd v The Garden Co Ltd (1994) 29 IPR 485. • OAKS and FIDDICH are quite different in a visual sense: cf Wingate Marketing Pty Ltd v Levi Strauss & Co (1994) 28 IPR 193. • OAKS and FIDDICH are aurally different. The two syllables in FIDDICH is a further distinction between the marks.


case_text: The GLENN OAKS mark has two elements GLENN and OAKS. Despite being a single word, the GLENFIDDICH mark also has two elements. The first element of both marks is substantially the same - GLENN and GLEN. It is the second that requires closer attention. OAKS and FIDDICH are quite different. • OAKS and FIDDICH do not have similar meanings, if the latter has one at all. In any event, confusion is mitigated when one word has no readily apparent meaning: Gardenia Overseas Pty Ltd v The Garden Co Ltd (1994) 29 IPR 485. • OAKS and FIDDICH are quite different in a visual sense: cf Wingate Marketing Pty Ltd v Levi Strauss & Co (1994) 28 IPR 193. • OAKS and FIDDICH are aurally different. The two syllables in FIDDICH is a further distinction between the marks.


case_text: As I understood the submission it was that use of the GLENN OAKS mark is likely to result in confusion because a family of 'GLEN' marks exists in the market. The applicant relied upon a Trade Mark Office decision in McDonalds Corporation v Bellamy (2004) 62 IPR 133 at 139 to support the submission. There, the delegate said: "[In] the line of 'family' trade mark cases...the trade marks of an opponent have been found to have a common element, usually a prefix, which is so thoroughly associated with the opponent's goods or services that the use by another person of a trade mark incorporating that element, would deceive or confuse." 78 In both Woolworths Metro and McDonalds there was only one registered owner of the relevant trade marks. Several United States authorities, including J & J Snack Foods Corp v McDonald's Corp 932 F2d 1460 (Fed Cir 1991) and American Standard Inc v Scott & Fetzer Co 200 USPQ 457 461 (TTAB 1978), support the distinction referred to at [77]-[78].


case_title: Beck Koller & Co (1947) 64 RPC 76

case_text: The family marks argument is not persuasive. The applicant is not the registered owner of all the 'Glen' marks. Beck Koller & Co (1947) 64 RPC 76 at 83 provides guidance, in dicta, as to how family marks should be examined: "When an application for registration is before the Registrar, it frequently happens that the search for conflicting marks reveals several marks having some characteristic feature in common with the mark of the application, which marks may stand on the register in the name of one proprietor only, or in the name of several different proprietors. ... If, therefore, all the marks were owned by one proprietor, the Registrar would presume that the latter was using a 'series' of marks and judge the conflict between the applicants' mark and each of the proprietor's mark with this consideration in mind. ... On the other hand, if the registered marks were owned by several different proprietors, this would be a circumstance which might considerably assist the applicant who would be in a position to submit that the common characteristic was one well recognised in marks in use in the particular trade. In short, when the Registrar comes to compare the applicant's mark with the registered marks, ... the presence of marks on the register other than the one with which the comparison is being made is regarded as one of the surrounding circumstances which he is required to take into account. " (Emphasis added) 77 The "applicant" referred to in that passage is the applicant for the trade mark. So if the marks were owned by the same party, that would have gone against the applicant, but where there were a number of prior registered marks belonging to different parties, that was in the applicant's favour. In the present case, the respondent is the applicant for the trade mark. The passage above cuts in favour of the GLENN OAKS mark. 80 Beck Koller at 83 indicates that family marks are only to be regarded as one of the "surrounding circumstances which is required to be taken into account" when making a comparison. Pianotist , as approved in High Court authorities, remains the primary test of deceptive similarity. Therefore, the existence of family marks is only a relevant factor in the totality of the assessment of whether there is a likelihood of deception or confusion. In this case, it supports the respondent.


case_title: J & J Snack Foods Corp v McDonald's Corp , 932 F2d 1460 (Fed Cir 1991)

case_text: In both Woolworths Metro and McDonalds there was only one registered owner of the relevant trade marks. Several United States authorities, including J & J Snack Foods Corp v McDonald's Corp 932 F2d 1460 (Fed Cir 1991) and American Standard Inc v Scott & Fetzer Co 200 USPQ 457 461 (TTAB 1978), support the distinction referred to at [77]-[78].


case_title: American Standard Inc v Scott & Fetzer Co , 200 USPQ 457 461 (TTAB 1978)


case_title: Powell's Trade Mark (1893) 10 RPC 195

case_text: As a matter of commonsense and consistency with the purpose of the Act, the respondent's position is to be preferred. The function of a trade mark is to indicate the origin of the goods: Powell's Trade Mark (1893) 10 RPC 195 at 200. If the evidence establishes a common characteristic well recognised in marks in use by different owners in the particular trade (for example 'Glen'), this would reduce the chance of confusion as the consumer is aware that different owners maintain different trade marks (albeit names starting with the same word or letters). The consumer's attention is, therefore, likely to be more attuned to the second element in the relevant mark. For example OAKS in GLENN OAKS or LIVET in GLENLIVET. In particular, awareness of the second element would be a matter of habit for involved scotch whisky consumers.


case_text: Passing off is a tort that does not require proof of intent to deceive. However, there must be at least a likelihood of deception: Erven Warnink BV v J Townsend & Sons Hull Ltd [1980] RPC 31 at [93] and [99]. For the reasons given in dealing with the earlier grounds, that has not been established. 85 The application must be dismissed. 86 The delegate said that the applicant's opposition was justified. The applicant was correct in saying that use of the mark on the goods for which the application was accepted was likely to cause confusion. On the other hand the respondent's amendment to his statement of goods following the hearing was sufficient to eliminate that likelihood. As both parties thus had a measure of success, the delegate considered they should bear their own costs. That is also the view to which I have come. The cross appeal should be dismissed. I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate: Dated: 2 November 2007 Counsel for the Applicant: Ms S Strong SC Solicitor for the Applicant: Corrs Chambers Westgarth Counsel for the Respondent: Ms HMJ Rofe Date of Hearing: 3-4 September 2007 Date of Judgment: 2 November 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1649.html


case_text: While a tendency to cause confusion will generally not satisfy s 52 or s 53, in particular circumstances such as that illustrated by Taco Co (Aust) Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 201, it may. However, for the reasons given in dealing with the earlier grounds, there is no such tendency here.


case_text: The Minister's decision is a "privative clause decision" within the meaning of s 474 of the Act. This Court cannot set it aside except for jurisdictional error: see Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476 at 506-508 and 511 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. 5 For the reasons I am about to state, I would dismiss this application. 6 Mr Yalniz, who is in his mid forties, is a citizen of Turkey. He arrived in Australia on 18 July 1984. He has been married three times and has nine children from two of these marriages.


case_text: It is unnecessary in this case to consider whether or not the Minister was bound to take into account the best interests of Mr Yalniz's children in deciding to cancel his visa. For present purposes, I am prepared to assume that, if the Minister failed to have regard to the interests of his children, her decision would have been affected by jurisdictional error. This assumption may rest on any one of a number of bases: see, for example, Minister for Immigration and Multicultural and Indigenous Affairs v Lorenzo [2005] FCAFC 13 at [57] per Wilcox, Sackville and Finn JJ. The difficulty faced by the applicant is in showing that the Minister failed to have regard the best interests of the children as a primary consideration in a manner the law accepts.


case_text: Although not bound to apply Direction 21, being a direction under s 499(1) of the Act (see Le v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 84 ALD 17 at 28 per Jacobson and Bennett JJ), the Minister specifically stated, in her reasons for decision, that she "proceeded in accordance" with the Direction. Direction 21 relates to the application of the character test and the exercise of discretion in determining whether or not to cancel a visa. Direction 21 provides that a decision-maker should have regard to three "primary considerations", one of which is "in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children". 20 In conformity with the Direction, the Minister stated, in her reasons, that: I gave primary consideration to the best interests of any children who are less than 18 years of age and with whom Mr YALNIZ is in a parental or other close relationship. Mr YALNIZ has four children from his second marriage and five children from his third marriage, all of whom are under the age of 18 years. Mr YALNIZ was imprisoned in January 2002 and I noted that he has not had contact with any of his children since his incarceration. I noted Ms Sowerine's statement that Mr YALNIZ has desperately wanted to contact his children and that he was advised by his solicitor that he should wait until he is released from prison before commencing proceedings in the Family Court. There is no evidence of any current Parenting Order in force imposing parental responsibilities on Mr YALNIZ for any of his nine children. On balance the information relevant to this consideration weighed against cancelling Mr YALNIZ's visa. I gave this consideration considerable weight. 21 In her reasons, the Minister also stated she had "carefully assessed all of the information set out in the Issues Paper". Indeed, the Minister's signature was endorsed at the conclusion of this document. In relation to the best interests of Mr Yalniz's children, the Issues Paper referred to art 3.1 of the Convention on the Rights of the Child and to par 2.16 of Direction 21, which set out factors to be taken into account when considering a child's best interests. The Issues Paper referred to the ages of Mr Yalniz's children and to the fact that there was "no indication that the children would accompany Mr Yalniz if his visa were cancelled". The Issues Paper also referred to his incarceration, his desire to see his children and his solicitor's advice. The Issues Paper emphasized Mr Yalniz's feelings for his children and referred to the submissions made by Victoria Legal Aid and the declaration made by Mr Yalniz's uncle. Finally, on this topic, it stated: Should Mr Yalniz's children accompany him to Turkey, it is open for you to find that the standards of education and health care in Turkey are not comparable to those available in Australia. It is open for you to find that should Mr Yalniz's children leave Australia, they may be separated from their mothers and would face a period of readjustment as they become accustomed to a new school and attempt to establish new social networks. It is open for you to find that it would be in the best interests of the children to remain in Australia and not to experience the disruptions involved in relocating to Turkey. It is reasonable to accept that Mr Yalniz's children would be affected by a decision under s. 501(2) and that it remains in each child's best interests that Mr Yalniz not be removed from Australia. In the event of his removal, the children would be deprived of a continuing relationship with their father.


case_text: There was no need in this case for the Minister to go through a list of factors that might have informed her conclusion with regard to Mr Yalniz's children. Sometimes this may be appropriate but in other cases it may be sufficient, as in this case, to adopt an approach that assumes the relevant factors point to one conclusion that it will be in the best interests of children to remain with their parents: compare Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 31 at [15] per Tamberlin, Kiefel and Emmett JJ; Kaur v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 70 at [20] - [22] per Nicholson, Jacobson and Lander JJ; and Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 at 221 per Gleeson CJ, Gummow and Heydon JJ and 238 per Kirby J. The fact that she did not make a list of factors (e.g., hardship and children's development) does not in this case make good the proposition that she did not direct her mind to the matters that arose on the information before her. Having regard to what I have already stated, I think it plain enough that she discharged her obligation fully in this regard.


case_title: Kaur v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 70


case_title: Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212


case_text: There was in this case no obligation to make further inquiries concerning the children. There was nothing to create such an obligation: compare Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292 at 314 per Tamberlin, Sackville and Stone JJ; and Taylor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 208 at [19] per Marshall, Mansfield and Siopis JJ. Although the information about the best interests of the children was limited, it made out Mr Yalniz's case, by explaining his relationship with them and the loss they would suffer if deported. Mr Yalniz might have provided more detailed information had he wished, but he did not do so. As I have said, the Minister plainly took account of the information that she had been given.


case_title: Taylor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 208


case_text: Earlier in its reasons the Tribunal had stated conformably with a line of authority adopting and endorsing observations of Brennan CJ in Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 at 233 that "the persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality": see SZDWR v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 36 at [18] .


case_title: SZDWR v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 36


case_text: Accepting that a jurisdictional error can be inferred from a conclusion reached despite factual findings, this is not a matter in which such an inference can be drawn. Before indicating why this is so it is appropriate to refer to some well accepted principles that are applied when challenging on grounds of jurisdictional error determinations that a person does not satisfy the definition of a refugee for the purposes of the Migration Act. (i) Whether particular conduct of which a person is shown to have a well-founded fear is sufficiently serious and significant as to constitute persecution properly understood, is a question of fact and degree for the Tribunal not the Court: VDAU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 32 at [24] ; see also Raheem v Minister for Immigration & Multicultural Affairs [2001] FCA 940 at [31] . (ii) Whether threats of future harm are genuine and are sufficiently serious as to be capable of amounting to persecution (if intended to be acted upon and not merely to intimidate) are likewise questions of fact and degree for the Tribunal: VBAS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 212 ; (2005) 216 ALR 307 at [20] - [28] . (iii) Where the Tribunal has correctly formulated the test to be applied, a court should not take the view that the Tribunal did not apply the correct test unless this appears clearly from what it has written: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271. (iv) The ultimate question for the Tribunal looks to the future and requires it to consider whether the fear of persecution upon return to the country in question is well founded: M66 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 112 at [13] . (v) The Tribunal is not required, as an essential part of reaching its conclusion on whether a person has a well-founded fear of persecution, to characterise past acts complained of as persecution: Ratnayake v Minister for Immigration & Multicultural Affairs [1998] FCA 1141. What has happened in the past may explain a present subjective fear and be a matter to be taken into account in the predictive exercise of determining whether there is a "real chance" of persecution for a Convention reason if that person is returned: Ratnayake ; Applicant A233 of 2003 v Refugee Review Tribunal [2004] FCA 666 at [20] .


case_title: Raheem v Minister for Immigration & Multicultural Affairs [2001] FCA 940


case_title: VBAS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 212 ; (2005) 216 ALR 307


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


case_title: M66 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 112


case_title: Ratnayake v Minister for Immigration & Multicultural Affairs [1998] FCA 1141


case_title: Applicant A233 of 2003 v Refugee Review Tribunal [2004] FCA 666


case_text: These conclusions fell well within the Tribunal's proper province. It made its judgment of the significance, seriousness and, in the case of the threats, the purpose of the conduct in question. As Sundberg J said in Das v Minister for Immigration & Multicultural Affairs (2004) 208 ALR 229 at [23]: "That the Court might not itself have taken the same view of the facts as the Tribunal does not establish error". No reviewable error has been disclosed. 28 Distinctly, the appellant claims that the Tribunal misunderstood the "official quality" that may be required in the course of persecution such as to constitute a person a refugee under the Convention. I already have indicated that the Tribunal's understanding of what was comprehended by the "official quality" requirement as expressly explained in its Reasons, was orthodox and unobjectionable. Before referring again to this matter towards the end of its reasons, the Tribunal found that despite his fears of harm at the hands of UNP supporters, the appellant could access and be provided with adequate State protection. It is in this context that its comments on "official quality" are to be considered when it indicated that the harm the appellant fears from UNP supporters did not have an official quality.


case_text: On a fair reading of the Tribunal's reasons, it is apparent that the Tribunal was intending to signify that such violence as occurs between members or supporters of political parties (which was the essence of the appellant's claims about the UNP supporters) did not amount to persecution, first because such violence was not official, or officially tolerated or uncontrollable by the State and secondly, because it lacked the selective or discriminatory quality which is inherent in the notion of persecution. While each of these reasons was sufficient to justify a conclusion adverse to the appellant, the latter, the State protection finding, was independently dispositive of the appellant's entire claim in the circumstances: Minister for Immigration & Multicultural & Indigenous Affairs v Respondent S152/2003 (2004) 205 ALR 487; SZBOT v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 411 ; Applicant VFAH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1018.


case_title: SZBOT v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 411


case_title: Applicant VFAH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1018


case_text: So far as the principles governing the grant of leave are concerned, all I need note for present purposes are: (i) leave to argue a new ground of appeal should only be granted if it is expedient in the interests of justice to do so: O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at 319; and (ii) in considering whether it is so in the interests of justice, it is necessary to give some consideration to the merits of the grounds proposed to determine whether they have a reasonable prospect of success: Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788 at [22] - [24] .


case_title: Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788


case_text: It has not been suggested in this matter that the respondent would be prejudiced by the grant of leave, nor is it said that there is no acceptable explanation for the issue not being previously raised: cf NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134 at [166] .


case_text: The respondent opposes leave primarily on the basis that the proposed grounds have no reasonable prospects of success. A subsidiary basis for opposition based on comments made in the joint judgment in Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128 at [29] concerning the significance of lapse of time is to the following effect. Given the member's views were published more than a year after the decision in question, it cannot be determined what the member's views may have been at the time of decision. This latter contention is not, in my view, of particular consequence. The article was published in a law journal in a foreign country. Inevitably that process would have involved delay. It is equally clear from the structure of the article, the sources relied upon, and the nature of the debate with which it was engaging, that time was spent in its research and writing. It is improbable that its central thesis was not entertained by the Tribunal member, if only in rudimentary form, at the time when the appellant's review application was determined. 38 Given the view I take on the question of leave, it is necessary to refer in a little detail to the burden of the article itself (which runs to thirty-five pages). There are two comments I should make about it by way of preface. The first is that the article's concern is not with torture at large (i.e. the infliction of severe pain, suffering or torment as such). Rather it is with a particular sub-species of State-sanctioned or officially authorised torture (i.e. the State-sanctioned infliction of bodily pain etc for the purpose of persuading a person to provide information to avert a grave risk of loss of life). I note in passing that the definitions of "torture" in The Oxford English Dictionary , vol XVIII, 278 (2 nd ed) reflect the above differences to the extent of recognising that torture may or may not be inflicted purposively and with State authority. 39 The second comment is that the background to the article are the contemporary prevalence of State-sanctioned torture in many countries and its use by States for interrogative purposes. 43 First, reasonably apprehended bias . The test of whether the Tribunal member was disqualified from hearing the appellant's application for review on this basis is not in issue between the parties. Both are content for present purposes to rely upon that of Deane J in Webb v R [1994] HCA 30 ; (1994) 181 CLR 41 at 67-68. It is: "whether, in all the circumstances, a fair-minded lay observer with knowledge of the material objective facts 'might entertain a reasonable apprehension that [the Tribunal member] might not bring an impartial and unprejudiced mind to the resolution of the question' in issue." Though the subject of the reasonable apprehension need only be of a possibility of bias, that reasonable apprehension must be "firmly established": R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10 ; (1969) 122 CLR 546, at 553. In a case such as the present involving the significance to be attributed in the circumstances to expressed views, it is insufficient to demonstrate merely "a sense of unease or a feeling that conventions of discretion and prudence have been breached": Re Minister for Immigration & Multicultural Affairs; Ex parte Epeabaka , at [90]. What needs to be established is a reasonable suspicion that an unprejudiced mind might not be brought to the determination of the appellant's case because of "preconceptions existing independently of the case": Re JRL; Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342 at 372 - because of prejudgment or predisposition: Ex parte Epeabaka , at [21]. I will for convenience refer to this as "issue bias".


case_outcome: followed

case_text: First, reasonably apprehended bias . The test of whether the Tribunal member was disqualified from hearing the appellant's application for review on this basis is not in issue between the parties. Both are content for present purposes to rely upon that of Deane J in Webb v R [1994] HCA 30 ; (1994) 181 CLR 41 at 67-68. It is: "whether, in all the circumstances, a fair-minded lay observer with knowledge of the material objective facts 'might entertain a reasonable apprehension that [the Tribunal member] might not bring an impartial and unprejudiced mind to the resolution of the question' in issue." Though the subject of the reasonable apprehension need only be of a possibility of bias, that reasonable apprehension must be "firmly established": R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10 ; (1969) 122 CLR 546, at 553. In a case such as the present involving the significance to be attributed in the circumstances to expressed views, it is insufficient to demonstrate merely "a sense of unease or a feeling that conventions of discretion and prudence have been breached": Re Minister for Immigration & Multicultural Affairs; Ex parte Epeabaka , at [90]. What needs to be established is a reasonable suspicion that an unprejudiced mind might not be brought to the determination of the appellant's case because of "preconceptions existing independently of the case": Re JRL; Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342 at 372 - because of prejudgment or predisposition: Ex parte Epeabaka , at [21]. I will for convenience refer to this as "issue bias".


case_title: R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10 ; (1969) 122 CLR 546


case_text: The Commissioner relies on R v Barger [1908] HCA 43 ; (1908) 6 CLR 41 at 114, adopted in Fairfax v Federal Commissioner of Taxation [1965] HCA 64 ; (1965) 114 CLR 1 at 12-13, for the proposition that subject only to the limitations expressed in the Constitution , the Parliament's power to levy taxation: was plenary and absolute; unlimited as to amount, as to subjects, as to objects, as to conditions, as to machinery... with the result that: the Parliament has, prima facie, power to tax whom it chooses, power to exempt whom it chooses, [and] power to impose such conditions as to liability or as to exemption as it chooses. The Commissioner submits that on the assumption that there was a general principle contended for by Mr Fowler, it has been overtaken by the introduction of the Act, which evinces a clear intention to include in a person's assessable income, in the circumstances identified in the Act, amounts of income that the individual did not beneficially derive.


case_outcome: affirmed

case_title: Fowler and Commissioner of Taxation; Re [2006] AATA 808 ; (2006) 64 ATR 1113

case_text: Mr Fowler applied to the Tribunal for review of the objection decisions, which were affirmed by the Tribunal on 21 September 2006: Re Fowler and Commissioner of Taxation [2006] AATA 808 ; (2006) 64 ATR 1113. 7 Mr Fowler applied in this Court for an extension of time in which to appeal against the Tribunal's decision. On 3 April 2007 that application was granted and Mr Fowler filed his notice of appeal on 12 April 2007. 8 In general terms, Mr Fowler submits that the various provisions in Pt 2 - 42 of the Income Tax Assessment Act 1997 (Cth) (the Act), under which the Commissioner treated the assessable income of Mr Fowler as including the amounts paid to the Company, are not independent provisions but are subject to constraints that are to be found by implication in Pt 1 - 3 of the Act. In particular, Mr Fowler submits that the use of the concept of derivation of income in Pt 1 - 3 signifies that it is only income of which a person becomes the beneficial owner that is assessable income, and that in the present case it was the Company, not Mr Fowler, that derived and became the beneficial owner of the amounts paid by the labour hire firms to the Company (the amounts in question). 9 The Commissioner, on the other hand, submits that the Act's special provisions dealing with alienation of personal services income had the effect of making the amounts in question part of Mr Fowler's "statutory income", and therefore part of his "assessable income", even though, according to ordinary concepts, they were income derived by the Company. 10 In the following discussion, references to Parts and to sections are references to the Act, as it existed at the relevant time. 32 Mr Fowler submits, firstly, that the Tribunal erred in its unqualified acceptance of para 32 of the Commissioner's submission that there is no doctrine of law which would suggest that the taxation of income depends on ownership: see Re Fowler and Commissioner of Taxation [2006] AATA 808 ; (2006) 64 ATR 1113 at [32] . Mr Fowler elaborates on this submission by referring to the following cases in support of the proposition that income that is derived by a taxpayer beneficially is included in the taxpayer's assessable income: Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417 at 424; MacFarlane v Commissioner of Taxation (1986) 13 FCR 356 at 367; Windshuttle v Commissioner of Taxation [1993] FCA 553 ; (1993) 46 FCR 235 ; 93 ATC 4992 at 5000; Zobory v Commissioner of Taxation [1995] FCA 1226 ; (1995) 64 FCR 86 at 89; Reiter v Commissioner of Taxation [2001] FCA 1068 ; (2001) 113 FCR 492 at [24] ; Service v Commissioner of Taxation [2000] FCA 188 ; (2000) 97 FCR 265 at [73] ; Case 1/2006 [2005] AATA 1251 ; 2006 ATC 101 ; ABB Australia Pty Ltd v Federal Commissioner of Taxation (2007) 162 FCR 189 at [64]. In the present case, it was the Company, not Mr Fowler, that derived and became the beneficial owner of the amounts in question. 33 Secondly, Mr Fowler submits that s 84-5(1) is to be construed as referring to income that is beneficially derived by the individual. Similarly, he submits that the opening words of s 86-15(1), "Your assessable income", refer to income derived by the individual beneficially. 34 Mr Fowler contends that the drafting of ss 84-5 and 86-15 "has fundamentally miscarried" because the drafter, like the Tribunal, has overlooked the import of the authorities, which insist that assessable income be income derived by a taxpayer beneficially that is to say, be income of which the taxpayer becomes the beneficial owner. Mr Fowler submits that "the defect in the drafting of sections 84-5 and 86-15 is so fundamental that it is not open to a Court to cure by, as it were creative construction" .


case_text: The proposed appeal concerns a point of practice and procedure. There is an important distinction between the exercise of the discretion to grant leave to appeal in such a case and one which involves determining a substantive right: Décor Corporation at 400. In so finding, the Court was reflecting the warning reaffirmed by the High Court in Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 at 177 that a tight rein should be kept on such appeals. That warning has been echoed many times by this Court.


case_text: The applicants submit that the value of a benefit is not relevant when determining if conduct was ratified, and that what is important is the adoption or acceptance of the validity of an act done: Custom Credit Holdings Ltd v Creighton Investments Pty Ltd (Unreported NSWSC, 7 March 1985, BC8500943) at 25 per Clarke J. They also submit that a detriment that gives rise to an estoppel does not need to be valued: Hornsby Shire Council v Yifta Pty Ltd (Unreported, NSWSC, 17 March 1993, BC9301992) at 24 per Young J.


case_text: It is trite that particulars constitute the details of a statement of a party's case sufficiently clear to allow the opponent a fair opportunity to meet it: Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664. 10 Paragraph 18 of the statement of claim alleges that the consideration which Devere gave for the transfer of the Andonys' undivided one-third share of the Land was at most $45,000. Paragraph 5 of the defence denies this allegation but then pleads that the consideration comprised the benefits accruing to the Andonys under and pursuant to what are described as the First Agreement or alternatively the November 2000 Agreement. 11 The particulars of para 5 of the defence which were ordered are as follows: Particulars of all of the benefits alleged to have accrued to each of Mr Andony and Mrs Andony under and pursuant to (a) the First Agreement; (b) the November 2000 Agreement; by identifying in respect of each and every benefit: (c) the nature of the benefit; (d) the monetary value of the benefit; (e) when and how the benefit was accrued to each of Mr Andony and Mrs Andony; (f) by whom the benefit was provided.


case_text: The general approach to such an application is to consider whether the decision is attended with sufficient doubt to warrant its reconsideration and whether substantial injustice would result if leave were not granted, supposing that the decision was wrong: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 at 398-9. 7 The proposed appeal concerns a point of practice and procedure. There is an important distinction between the exercise of the discretion to grant leave to appeal in such a case and one which involves determining a substantive right: Décor Corporation at 400. In so finding, the Court was reflecting the warning reaffirmed by the High Court in Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 at 177 that a tight rein should be kept on such appeals. That warning has been echoed many times by this Court.


case_title: Hornsby Shire Council v Yifta Pty Ltd (Unreported, NSWSC, 17 March 1993, BC9301992)


case_text: The applicants submit that the error below was the finding that, in para 5 of their defence, they had put the "consideration" for the sale, the "benefits" comprising the consideration, and the "benefits accruing" under both the "First Agreement", alternatively the "November 2000 Agreement" in issue and, accordingly, must provide the detailed particulars demanded by the Trustees: Verge v Devere Holdings Pty Ltd [2008] FMCA 591 at [23] and [24]. 13 The applicant submits that it is the Trustees who bear the onus of proving each of the elements of s 120(1) of the Act which renders void, relevantly, a transfer of property where "the transferee gave consideration of less value than the market value of the property". In particular they submit that the Trustees must plead and prove: (a) the consideration that Devere gave to the Andonys; (b) the value of that consideration; and (c) the market value of the Andonys' undivided one third interest in the Land. 14 The applicants contend that whilst paragraph 5 denies the allegation that the consideration was $45,000 and pleads what the consideration actually was, it does not answer an allegation by the Trustees that the identified consideration pleaded in para 18 of the statement of claim had a particular value and then assert that it had a different value. It merely puts in issue, the applicants say, the threshold element to the Trustees' claim by asserting, in effect, that the transaction was wider than is alleged by the Trustees in para 18 of the statement of claim. In summary, the applicants' defence is that there was additional consideration, not that there was additional consideration of some particular value.


case_text: Her Honour concluded that the statement of claim failed to disclose any reasonable cause of action and rather than plead material facts, the pleading contained confusing and irrelevant material, adopted ambiguous terms and simply asserted conclusions and opinions. Moreover, her Honour concluded that the defective parts of the pleading are so inextricably intertwined with offending material, an oppressive burden is necessarily cast upon the respondents in identifying the causes of action to which they must respond. Because of these difficulties, her Honour took the view that the statement of claim ought to be struck out in its entirety and in so finding, her Honour relied upon Australian Competition and Consumer Commission v Fox Symes & Associates Pty Ltd [2005] FCA 1071 per Lander J and Trade Practices Commission v Australian Iron and Steel Pty Limited (1989) 22 FCR 305 per Lockhart J.


case_title: Trade Practices Commission v Australian Iron and Steel Pty Limited (1989) 22 FCR 305


case_text: In so concluding, her Honour relied upon the observations of Mason CJ and Brennan and Toohey JJ in Munnings v Australian Government Solicitor [1994] HCA 12 ; (1994) 120 ALR 586 at 589. 23 Her Honour then turned to the dispositive orders that ought to be made. Her Honour relied upon s 31A of the Act and Order 20, rule 2 of the Federal Court Rules and concluded that the application of the applicant filed on 7 April 2006 ought to be dismissed in accordance with either s 31A of the Act or, alternatively, on the footing that the requirements of Order 20, rule 2 of the Federal Court Rules were satisfied. Her Honour made an order that the application be dismissed and ordered the applicant to pay the respondents' costs of the proceeding. In relying upon s 31A of the Act, her Honour 'gave judgment' (s 31A(2)) for the respondents. In concluding that Order 20, rule 2 of the Federal Court Rules was satisfied, her Honour concluded that the proceeding ought to be dismissed generally on the footing, having regard to other conclusions, that no reasonable cause of action is disclosed by the statement of claim and that the applicant so misconceived the cause of action available to him that the proceeding is an abuse of the process of the court. 24 Mr Rogers says the arguable error on the part of her Honour is this. The respondents conceded in argument that a contravention of the TPA may give rise to a claim for personal injury. Her Honour observed at paragraph 120 of the judgment that: 'It is arguable that the applicant was coerced.' Having regard to those two matters, her Honour was in error it is said, in concluding that the statement of claim does not disclose any connection or nexus between conduct on the part of the respondents and a claim for personal injury on the part of the applicant. This error is described by Mr Rogers as the 'main ground of my application for a notice of appeal'. Mr Rogers says that it is quite clear from his pleading that allegations of coercion on the part of the respondents towards Mr Rogers occurred, that such conduct occurred only by reason of the provision of services by relevant respondents to Mr Rogers and that coercive conduct in contravention of s 60 gave rise to the present claim for damages or compensation for personal injury or the wrong done to him. Mr Rogers says that the coercion is clear or at least clearly arguable; it occurred in the context of a contravention of s 60 of the Act; and, the contravening conduct gave rise to the injury. 25 Mr Rogers says that the only arguable error on the part of her Honour is in relation to the matters said to be in contravention of s 60 of the TPA. 26 The second ground of appeal identified by Mr Rogers is that her Honour having found arguable coercion of the applicant, the offending parts of the statement of claim ought to have been dismissed leaving those paragraphs reliant upon s 60 extant. Mr Rogers says that 'this little precious gem' was 'good and it shouldn't have been thrown out and that's why I'm here today' . Further, Mr Rogers says that having struck out the statement of claim, her Honour ought not to have dismissed the application because she ought not to have found that there was no prospect of success in the proceeding having identified an arguable case of coercion. 27 As to the concession on the part of the respondents, the respondents say that they simply recognise the proposition of law that a claim for personal injury might properly arise out of a contravention of a provision of the TPA but no such claim is properly raised on the statement of claim in this case. 28 As to the question of whether a claim for personal injury based upon a contravention of s 60 of the TPA might give rise to a claim within s 116(2)(g) of the Bankruptcy Act , her Honour said this at [32]: ' Section 60 of the Trade Practices Act specifically applies to conduct in connection with the supply or possible supply of goods or services to a consumer or the payment for goods or services by a consumer, and therefore is founded in an existing (or possible) contractual relationship between the corporation and the consumer. In the event that the consumer becomes bankrupt, it follows that any legal action arising from the contractual relationship between the consumer and the corporation vests in the trustee in bankruptcy .' [emphasis added] 29 Justice Collier pronounced judgment on 7 December 2006. The method of pronouncement adopted was to publish the dispositive orders made by her Honour that day and to post the reasons for judgment to the parties. The date of 'pronouncement' of a judgment must necessarily be informed by the method selected by the judge to effect communication of the dispositive orders and particularly the reasons for judgment to the parties. Mr Rogers contends that notwithstanding the pronouncement of the dispositive orders on 7 December 2006 at 4.30pm by means of a telephone conference, the reasons were not received until 11 December 2006 and then by reason of the changes, the final reasons were received on 14 December 2006. It seems to me that if the judgment of her Honour is an interlocutory judgment, an application for leave to appeal ought to have been made within seven days of 14 December 2006 or, alternatively, within 7 days of 11 December 2006. 30 The application by Mr Rogers was filed on 15 December 2006 and is thus within time. If, however, the publication of the dispositive orders by means of a telephone conference and the selection of a method of communication of the reasons to the parties by post constitutes a 'pronouncement' of the judgment on 7 December 2006, the applicant is out of time by one day. However, having regard to the chronology of events, I am satisfied that the applicant has sufficiently explained any failure to file an application for leave to appeal from the orders of her Honour within the time required by the rules on the assumption that the operative date of pronouncement is 7 December 2006. 31 The more fundamental question is whether the applicant has established an arguable error on the part of her Honour.


case_title: Tampion v Anderson (1974) 3 ALR 414

case_text: The respondents contend that her Honour's judgment is an interlocutory judgment and although her Honour's order finally disposes of the particular proceedings, an order staying an action on the ground that it is frivolous, vexatious or an abuse of process or an order striking out an action on the ground that the proceeding does not disclose a cause of action, has always been treated as an interlocutory judgment. Such an order does not finally dispose of the rights of the parties ( Tampion v Anderson (1974) 3 ALR 414; Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423; Little v Victoria (1998) 4 VR 596; Wickstead v Browne (1992) 30 NSWLR 1; and Platypus Leasing Inc & Ors v Commissioner of Taxation [2005] NSWCA 399 [24] [30]). The rationale for such an approach seems to be that no final disposition of rights occurs because there has been no adjudication of the controversy of fact nor a dispositive application of the law to the facts as found. A question might arise as to whether the order has 'the practical effect' of determining the claim of an applicant to a remedial order ( Johnston v Cameron [2002] FCAFC 251 ; (2002) 124 FCR 160). One difficulty, however, is the respondents also contend that should the applicant commence fresh proceedings (assuming, as appears to be the case, the limitation period has not expired), Mr Rogers would be met with a contention of res judicata . If that contention is good, it seems to me that the order must necessarily be a final order consistent with the observations of Gibbs, Mason & Murphy JJ in Port of Melbourne Authority v Ashun Pty Limited [1980] HCA 41 ; (1980) 147 CLR 35 at 38.


case_text: The respondents contend that her Honour's judgment is an interlocutory judgment and although her Honour's order finally disposes of the particular proceedings, an order staying an action on the ground that it is frivolous, vexatious or an abuse of process or an order striking out an action on the ground that the proceeding does not disclose a cause of action, has always been treated as an interlocutory judgment. Such an order does not finally dispose of the rights of the parties ( Tampion v Anderson (1974) 3 ALR 414; Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423; Little v Victoria (1998) 4 VR 596; Wickstead v Browne (1992) 30 NSWLR 1; and Platypus Leasing Inc & Ors v Commissioner of Taxation [2005] NSWCA 399 [24] [30]). The rationale for such an approach seems to be that no final disposition of rights occurs because there has been no adjudication of the controversy of fact nor a dispositive application of the law to the facts as found. A question might arise as to whether the order has 'the practical effect' of determining the claim of an applicant to a remedial order ( Johnston v Cameron [2002] FCAFC 251 ; (2002) 124 FCR 160). One difficulty, however, is the respondents also contend that should the applicant commence fresh proceedings (assuming, as appears to be the case, the limitation period has not expired), Mr Rogers would be met with a contention of res judicata . If that contention is good, it seems to me that the order must necessarily be a final order consistent with the observations of Gibbs, Mason & Murphy JJ in Port of Melbourne Authority v Ashun Pty Limited [1980] HCA 41 ; (1980) 147 CLR 35 at 38. 48 As to the standing to maintain a claim arising out of conduct in contravention of s 60 of the TPA, it seems to me that a contravention of s 60 , properly pleaded, may give rise to rights, claims and entitlements vested in the trustee of Mr Rogers and also a claim in Mr Rogers where the damages are to be estimated by immediate reference to any pain felt by the bankrupt and without regard to his rights in property. The mere fact that a contravention of s 60 necessarily involves a transaction of supply or possible supply of services to a consumer does not have the effect of vesting all claims arising out of the contravention in the trustee. In that regard, I would, with respect, disagree with the conclusion reached by her Honour at [32] of her Honour's reasons for judgment.


case_title: Little v Victoria (1998) 4 VR 596


case_title: Wickstead v Browne (1992) 30 NSWLR 1


case_title: Platypus Leasing Inc & Ors v Commissioner of Taxation [2005] NSWCA 399


case_title: Johnston v Cameron [2002] FCAFC 251 ; (2002) 124 FCR 160


case_title: Port of Melbourne Authority v Ashun Pty Limited [1980] HCA 41 ; (1980) 147 CLR 35


case_text: If the judgment is an interlocutory judgment, Mr Rogers must demonstrate that in all the circumstances the decision of her Honour is attended by sufficient doubt to warrant its being reconsidered by the Full Court and secondly, that substantial injustice would result if leave was refused supposing the decision to be wrong ( Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; Ogawa v University of Melbourne (No. 2) [2004] FCA 1275). 39 Since the respondents contend that the effect of her Honour's order would be to bring about a res judicata in respect of the claims Mr Rogers has sought to agitate in his further further amended statement of claim, I propose to treat her Honour's judgment as a final judgment. In determining the question of whether further time ought be allowed to file and serve a notice of appeal for the purposes of Order 52, rule 15(1)(b) , I propose to determine whether the applicant has demonstrated an arguable error on the part of her Honour and, if so, whether substantial injustice would arise should an extension of time be refused. In that sense, I propose to essentially apply the test identified in Décor Corp Pty Ltd v Dart Industries Inc (supra). 40 In applying this test, I have had regard to not only the judgment of her Honour but also the further further amended statement of claim filed on 20 July 2006. The matters to be considered are set out hereafter. 41 The applicant contends that the respondents engaged in conduct in contravention of s 60 of the TPA. 42 The applicant thus contends that the corporate respondents by their officers, servants or agents engaged in physical force and undue harassment or coercion in connection with the supply of services to the applicant as a consumer of the relevant services, or, that such conduct occurred in connection with the payment for such services. 43 The applicant contends that the third and fourth respondents were the authors of the conduct, with others, and were persons 'involved in the contravention' for the purposes of the TPA.


case_text: If the judgment is an interlocutory judgment, Mr Rogers must demonstrate that in all the circumstances the decision of her Honour is attended by sufficient doubt to warrant its being reconsidered by the Full Court and secondly, that substantial injustice would result if leave was refused supposing the decision to be wrong ( Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; Ogawa v University of Melbourne (No. 2) [2004] FCA 1275).