case_text: However, where a demonstrated failure to plead material facts gives rise to no real confusion or gives rise to no issue of substantive principle, the Court will be restrained in the exercise of the strike-out power. Not all conclusionary pleadings will be struck out. Whether a pleading ought to be struck out will depend upon whether the facts have been pleaded at too great a level of generality or at too high a level of abstraction ( HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822 ; State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] ATPR 41-691 at 42, 828-9; Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association (WA) (1987) 13 FCR 413 ; and Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd [1991] FCA 557). The authorities governing the exercise of the discretion to strike out a pleading are usefully assembled by Weinberg J in McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 ; (1999) 165 ALR 409 at 415-421; adopted by Tracey J in Auskay International Manufacturing & Trade Pty Ltd v Qantas Airways Ltd [2008] FCA 1458 ; and as Tracey J notes, applied in Australian Automotive Repairers' Association (Political Action Committee) Inc. v NRMA Insurance Ltd [2002] FCA 1568 at [14] - [17] ; Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 ; [2005] ATPR 42-053 at 42, 669-42, 670. It is not necessary to restate comprehensively the content of those well understood principles. 19 As to MRPL, the ACCC pleads at para 4 that MRPL was a broker and supplier of loan arrangement services to members of the public in Australia including Queensland. By para 4.5, MRPL supplied all of the loan arrangement services described within the definition of that term. By para 4.6, MRPL was not a supplier of loan products and by para 4.7, MRPL was authorised by Australian Finance Group Ltd ("AFG") to submit loan applications on behalf of customers in respect of loan products to loan providers and to supply loan arrangement services to customers in respect of those products. By para 4.8, MRPL was remunerated for its supply of loan arrangement services by commission paid by a loan provider through AFG if the customer acquired the loan product of that provider. By para 4.9, MRPL from February 2003 was accredited by ANZ through AFG to submit loan applications to ANZ for ANZ loan products and by para 4.10, in the case of ANZ loan products, MRPL was paid commission for its loan arrangement services by ANZ through AFG if its customers acquired an ANZ loan product. By para 4.11, MRPL was not an agent of ANZ. 20 As to AFG, the ACCC pleads that it was an aggregator with contracts with loan providers for its accredited member brokers to submit loan applications on behalf of customers for the loan provider's loan products (para 5.2). It contracted with loan providers to ensure member brokers complied with the loan providers' standard procedures and requirements in submitting loan applications (para 5.3). From November 2002, AFG was the aggregator through which MRPL was accredited to submit loan applications on behalf of customers for loan provider's loan products (para 5.4) and from on or about February 2003, AFG was the aggregator through which MRPL was accredited to submit applications on behalf of customers to ANZ for an ANZ loan product (para 5.5). By para 5.6, AFG was remunerated by retaining a proportion of the commission payable by the loan provider to the broker who provided loan arrangement services. 21 As to the market, the applicant pleads: 6. At all material times: 6.1 there was and is a demand, from members of the public seeking to choose and acquire loan products, for loan arrangement services in Australia or, alternatively, in Queensland; and 6.2 loan arrangement services are and were supplied by, inter alia, brokers and loan providers, including ANZ 7. At all material times there was a market in which: 7.1 loan arrangement services were supplied to members of the public; 7.2 from February 2003 [MRPL] competed with, inter alia, ANZ to supply loan arrangement services, or alternatively loan arrangement services in respect of ANZ loan products; and 7.3 ANZ competed with, inter alia, [MRPL] to supply loan arrangement services, or alternatively loan arrangement services in respect of ANZ loan products. 27 First, there is a market for services described as loan arrangement services . They are services offered by a supplier to customers . A customer is a potential acquirer of both a residential home loan (a loan product ) from a provider of residential home loans, and a loan arrangement service from a supplier of that service. The content of a loan arrangement service is defined as a service supplied to such customers of assisting them in choosing a particular residential home loan offered by a provider of such loans (i.e., a residential home loan lender). However, that service, by definition (para 1) has a number of component parts. A supplier of a loan arrangement service is someone that does these things: first, advises customers as to the features of available loan products from one or more residential home loan lenders; secondly, advises a customer of the available products that best suit the customer; thirdly, assists customers to complete and lodge an application for a loan which meets the lender's requirements; fourthly, acts as a facilitator or liaison between the customer and the lender in the transaction for the acquisition of a loan; and fifthly, manages the ongoing relationship between the customer and the lender after the loan has been taken up. This definitional statement of the content of loan arrangement services offered by suppliers of such services is expressed to be inclusive of these component parts. There may be other component services making up loan arrangement services but loan arrangement services at least include these elements. MRPL is a supplier of all of these services. ANZ however is not a supplier of loan arrangement services as defined by para 1. By para 3, ANZ is said to be a provider of loan arrangement services confined to its own loan products, their features, availability, terms and conditions, particular suitability to the customer's needs and the provision of assistance in the completion and lodging of applications to ANZ that meet the requirements stipulated by ANZ for such applications and the subsequent management of the banker/customer relationship in relation to that loan. 28 Secondly, the market for loan arrangement services is characterised by demand for these services in Australia or alternatively in Queensland from members of the public seeking to acquire a separate service, i.e., the acquisition of a residential home loan. 29 Thirdly, on the supply side, loan arrangement services are provided to those on the demand side by brokers (that is, a supplier not an agent of the lender, remunerated directly by the customer or by commission from the lender should the customer take up a loan (or a combination of both)) and by ANZ , among others .


case_outcome: cited

case_text: However, where a demonstrated failure to plead material facts gives rise to no real confusion or gives rise to no issue of substantive principle, the Court will be restrained in the exercise of the strike-out power. Not all conclusionary pleadings will be struck out. Whether a pleading ought to be struck out will depend upon whether the facts have been pleaded at too great a level of generality or at too high a level of abstraction ( HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822 ; State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] ATPR 41-691 at 42, 828-9; Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association (WA) (1987) 13 FCR 413 ; and Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd [1991] FCA 557). The authorities governing the exercise of the discretion to strike out a pleading are usefully assembled by Weinberg J in McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 ; (1999) 165 ALR 409 at 415-421; adopted by Tracey J in Auskay International Manufacturing & Trade Pty Ltd v Qantas Airways Ltd [2008] FCA 1458 ; and as Tracey J notes, applied in Australian Automotive Repairers' Association (Political Action Committee) Inc. v NRMA Insurance Ltd [2002] FCA 1568 at [14] - [17] ; Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 ; [2005] ATPR 42-053 at 42, 669-42, 670. It is not necessary to restate comprehensively the content of those well understood principles.


case_title: Auskay International Manufacturing & Trade Pty Ltd v Qantas Airways Ltd [2008] FCA 1458


case_title: Australian Automotive Repairers' Association (Political Action Committee) Inc. v NRMA Insurance Ltd [2002] FCA 1568


case_title: Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 ; [2005] ATPR 42-053


case_text: In the alternative, the respondent seeks an order that the applicant provide further and better particulars of various paragraphs of the statement of claim pursuant to a request made by the respondent's solicitors of the applicant's solicitors, said to be the subject of an inadequate response. As to the relationship between the "fundamental rule of pleading" that a pleading contain statements of material facts and the role of particulars, the adoption by Goldberg J in Sammy Russo Supplies Pty Ltd & Anor v Australian Safeway Stores Pty Ltd (1998) ATPR 41-641 at 41, 093 (a case in which the applicant asserted contraventions of ss 45(2)(a)(ii) and 45 (2)(b)(ii) and in the alternative contraventions of those sections having regard to s 45A) , of Scott J's remarks in Bruce v Odhams Press Limited (supra), remains important: The cardinal provision ... is that the statement of claim must state the material facts. The word "material" means necessary for the purpose of formulating a complete cause of action; and if any one "material" fact is omitted, the statement of claim is bad; it is "demurrable" in the old phraseology, and in the new is liable to be "struck out". The function of "particulars" is quite different. They are not to be used in order to fill material gaps in a demurrable statement of claim gaps which ought to have been filled by appropriate statements of the various material facts which together constitute the plaintiff's cause of action. The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial. Consequently in strictness particulars cannot cure a bad statement of claim. But in practice it is often difficult to distinguish between a "material fact" and a "particular" piece of information which it is reasonable to give the defendant in order to tell him the case he has to meet; hence in the nature of things there is often overlapping. 4 The essential criticism of the pleading is that it is impermissibly reductionist. It reduces a structured pleading of material facts to a series of inter-dependent definitions some of which are inclusive of particular matters and thus open-ended rather than an exhaustive statement of the relevant matters. Those definitions are then adopted as defined terms to plead contraventions of the Act . The pleading in that form fails, it is said, to isolate the essential integers of a cause of action derived from ss 45(2)(a)(ii) and 45 (2)(b)(ii) and 45A of the Act and, in consequence, fails to isolate and plead material facts establishing those integers. In order to plead to the statement of claim, ANZ is required, it is said, to either deny or admit that a term has the aggregated meaning attributed to it or to deconstruct the definition, isolate its component parts and admit or deny each part and plead contrary facts. This form of pleading is said to raise three faults. First, it fails to plead facts material to the cause of action and adopts or assumes terms the content of which need to be sequentially asserted as facts as their use as a "shorthand" for a collection of elements or notions is confusing contextually in the subsequent pleading. Secondly, the definitional device obscures the case put against ANZ. Thirdly, the device inverts the obligation of the ACCC to plead its case by requiring ANZ to isolate the ACCC's case from a collection of definitional terms, restate the perceived case and plead to that case. 5 In particular, the use of this definitional device is said to obfuscate whether ANZ provides the same, similar or substitutable services as those supplied by the market participant with whom ANZ is said to have imposed an s 45A provision in relation to prices as part of a contended contract arrangement or understanding struck with that participant.


case_text: The ACCC says its pleading exhibits none of these contended failings. It says the pleading of the contravention of s 45 in reliance upon s 45A is in truth a simple and straightforward matter. It says the adoption of a definitional device does not assume any or a collection of matters but rather asserts as facts that the content of terms are comprehended by the elements of the definition. The subsequent use of those terms in the pleading, although they encapsulate more than one element, makes the contention of contravening conduct plain and clear. As to the obfuscation of the services and whether they are the same, similar or substitutable services provided in competition in a market between ANZ and the relevant participant, the ACCC says that because it relies upon ss 45(2)(a)(ii) and 45 (2)(b)(ii) in conjunction with s 45A , it is simply not necessary to plead all of the various layered onion rings of contestable conduct within the relevant market. What is necessary is to plead, at the centre, whether ANZ and the relevant participant are engaged in an identified market in the provision of identified services in competition. Whether others are in competition with those participants and isolating the composition and characteristics of the outer ring of contestable substitution is neither here nor there nor relevant. Pleading the full structural elements of the market and the boundaries of substitution is thus not required in order to establish the cause of action. Such a proposition is said to be supported by the observations of Heerey J in Australian Competition and Consumer Commission v J McPhee & Son (Australia) Pty Ltd & Ors (1997) ATPR 41-570 at 43, 920 and consistent with Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] FCA 353 ; (2004) ATPR 41-996 per Selway J at 48, 671. 42 In analogous circumstances, Heerey J in ACCC v J McPhee & Son (Australia) Pty Ltd & Ors (supra) at 43, 921 observed in respect of the relationship between ss 45(2)(a)(ii) , 45 (2)(b)(ii) and 45A that: If it were established that McPhee and DFE [two providers of express freight transportation services] were offering or contemplating the offer of the same services (express freight transportation services), to the same existing or potential customer (Just Jeans or ACI Florapak) it would be open to a court to conclude that McPhee and DFE were in competition with (at least) each other in a market for the supply (at least) of such services. 43 At 43, 920, his Honour also said this: As long as the ACCC can establish that, in connection with the alleged arrangements or understandings, McPhee and DFE were competing in a market it is not to the point that others may have been supplying the same service in that market or that services other than express freight transportation services might have been provided, or that the geographical extent of the market might have been different from that pleaded. To illustrate the point, one might ask rhetorically what would it matter for the purposes of the present case if, after elaborate discovery and issue of many subpoenas, expensive expert evidence, and a trial lasting several weeks, if not months, it were proved that Air Road and COPE were not participants in the alleged market, that some other firms not named in para 10 were participants, or that the alleged market did not cover the whole of Australia but only Victoria, South Australia and New South Wales. 44 His Honour further observed that the paragraphs of the pleading before him pleading the structural elements of the market "are prolix, unnecessary and irrelevant and raise false issues which are likely to embarrass and delay the fair trial of this proceeding". 45 With respect, his Honour's observations are undoubtedly correct in that case as there was no contest between the parties that precisely the same service was in issue involving precisely the same customers in respect of a readily identifiable market for express freight transportation services between particular geographic points. Whether the market comprised broader rings of geographic boundary or outer rings of particular participants was irrelevant to the question of whether McPhee and DFE were in competition in the identified express freight transportation market in respect of precisely the same service. However, it is plain from ACCC v McPhee that pleading material facts of the particular market in which there is competition for the relevant services between the participants to the s 45A provision of the pleaded contract, arrangement or understanding, remains fundamental. In principle therefore, having regard to the relationship between contended conduct by the parties to the provision and the market in which the conduct is said to have occurred, the pleading of material facts establishing close competition in the market might well be quite contained, as Heerey J concluded in the circumstances of the case before his Honour.


case_text: The ACCC says its pleading exhibits none of these contended failings. It says the pleading of the contravention of s 45 in reliance upon s 45A is in truth a simple and straightforward matter. It says the adoption of a definitional device does not assume any or a collection of matters but rather asserts as facts that the content of terms are comprehended by the elements of the definition. The subsequent use of those terms in the pleading, although they encapsulate more than one element, makes the contention of contravening conduct plain and clear. As to the obfuscation of the services and whether they are the same, similar or substitutable services provided in competition in a market between ANZ and the relevant participant, the ACCC says that because it relies upon ss 45(2)(a)(ii) and 45 (2)(b)(ii) in conjunction with s 45A , it is simply not necessary to plead all of the various layered onion rings of contestable conduct within the relevant market. What is necessary is to plead, at the centre, whether ANZ and the relevant participant are engaged in an identified market in the provision of identified services in competition. Whether others are in competition with those participants and isolating the composition and characteristics of the outer ring of contestable substitution is neither here nor there nor relevant. Pleading the full structural elements of the market and the boundaries of substitution is thus not required in order to establish the cause of action. Such a proposition is said to be supported by the observations of Heerey J in Australian Competition and Consumer Commission v J McPhee & Son (Australia) Pty Ltd & Ors (1997) ATPR 41-570 at 43, 920 and consistent with Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] FCA 353 ; (2004) ATPR 41-996 per Selway J at 48, 671. 46 Similarly, in Australian Competition and Consumer Commission v McMahon Services Pty Ltd (supra) Selway J at 48, 671 noted the precise limitations in the scope of the conduct alleged in that case. The conduct concerned a contended arrangement in relation to a tender price for a specific contract to be let by the Department of Defence arising out of the tender process. The ACCC relied upon s 45A of the Act . Selway J noted: [It] relates only to the price of a particular contract let by the Department of Defence and particularised in the statement of claim. The competitors involved in that tender process are specified by name in the statement of claim. So too are those said to be parties to the arrangement or understanding. The price said to be fixed has not been particularised, but is either the price contained in the offer by the fifth respondent (which seems to be the case that the ACCC intends to put) or the price obtained by the Department of Defence. Plainly enough, it is not the price of services generally available in the marketplace. 47 His Honour also noted at 48, 671: ... If the allegation related to the effect of an agreement or understanding on the overall operation of the market then it may be necessary for the ACCC to provide quite detailed particulars of that market in order to identify the relevant effect. However, in this case the relevant anti-competitive purpose or effect is strictly limited in scope. 48 Because the conduct involved a quite specific price fixing allegation between particular parties in respect of a particular tender (and consequential contract) let by the Department of Defence in respect of the supply and acquisition of construction services, his Honour concluded that the pleading of those elements, that is, the market, the contract, the participants, the identical services in the context of that transactional arrangement, did not require any greater or more detailed pleading of the market. However, the issue was not whether the applicant was required to plead material facts going to the market for the services and competition between the participants to the contract, arrangement or understanding in respect of those services but whether the material facts pleaded by the statement of claim, in the context of the transaction in question, adequately put the respondent on notice of the case to be met. His Honour concluded that it did. Again, there was no controversy that the service in question was precisely the same service provided in an uncontroversial market for the provision of construction services and the conduct related to a single party, the Department of Defence, in respect of a particular tender transaction. With respect, his Honour was plainly correct in concluding that it was not necessary to plead the market in any broader sense. 49 In simple terms, there is no great leap of pleading faith in either of these cases that the participants to the arrangement containing the s 45A provision were in competition in the supply of the relevant service in a market. 50 The distinction between these authorities and the present case is that here, the very question in controversy, is whether there is a separate market or markets as asserted in which close competition between MRPL and ANZ takes place. The pleader can not simply say there is such a market unless that contention is made good as a logical conclusion drawing together and drawn from material facts that plead the subsistence of the contended markets and contestable participation by MRPL and ANZ in each market. That is not to say that a pedantic or prolix and detailed pleading of the boundary of the entire field of rivalry need be scoped in the pleading or that the outer boundary of contestability between all participants in the market need be framed. It is however important to start at the centre and work outwards by identifying the services which are the subject of one or more markets, the core or emblematic participants in the contended markets for those services (i.e., the core or essential suppliers of the identified services; and the class of acquirers of the service (potential residential home loan borrowers seeking the relevant related services)), the services in fact provided by MRPL and those services in fact supplied by ANZ and the material facts which demonstrate that those services are strong substitutes thus falling within a separate market. Having done so, the pleading, in principle, need do no more so far as the market is concerned. In order to make good the remaining elements of s 45A , the applicant must plead that the provision of the contract, arrangement or understanding has the purpose or effect or likely effect of, put in abbreviated terms, fixing a price for the contestable supply of these services.


case_text: The pleading of material facts which establish the integers of s 45A give rise to a conclusion, for the purposes of the pleading, drawn from those facts of a contravention of s 45. Pleading material facts which establish the purpose, effect or likely effect of a provision of a contract, arrangement or understanding of the kind described in s 45A makes it unnecessary to plead facts going to purpose or effect or likely effect of substantially lessening competition. Section 45A , if established, effects a deemed contravention of s 45 as the parliament regards arrangements between competitors in relation to prices (of the kind described by s 45A) as perverse to competition as a process, a threat to consumers and inconsistent with the object of the Act (s 2). However, an essential integer of s 45A is whether the parties (or perhaps some of them) to the contract, arrangement or understanding are in competition with each other in the supply or acquisition or proposed supply or acquisition of the identified services. Competition is a "rich" and "dynamic" process which expresses itself as "rivalrous market behaviour". Whether firms compete "is very much a matter of the structure of the market in which they operate" ( Re Queensland Co-operative Milling Association Ltd; Re Defiance Holdings Limited [1976] 25 FLR 169 at 187, 188 and 189). 10 Section 45(3) provides that "competition" for the purposes of s 45A in relation to a provision of a contract, arrangement or understanding means "competition in any market in which a corporation that is a party to the contract, arrangement or understanding ... supplies or acquires ... services". 11 Thus, it is necessary to plead material facts which establish that the participants to the contract, arrangement or understanding embodying the s 45A provision are engaged in the supply or acquisition of the identified services in any market in Australia and secondly, that the participants are engaged in rivalry with each other in that market in those services. Rivalry however takes place within a field of transactions between buyers and sellers and the boundaries of the field of rivalry are to be determined by not only the services supplied or acquired by a participant to the contract, arrangement or understanding but also having regard to services that are substitutable for or otherwise competitive with those services (s 4E of the Act ). Section 4E of the Act simply recognises the economic orthodoxy of close competition determined by strong substitution (over the long run two years not simply transient demand or supply responses, given a sufficient price incentive) within a field of actual and potential transactions between buyers and sellers, as the determinant of the boundaries of a market. It is not necessary to repeat the well understood passage from Re Queensland Co-operative Milling Association Ltd (supra) at p 190 adopted with approval by many authorities including Queensland Wire Industries Pty Ltd v The Broken Hill Proprietary Company Ltd [1989] HCA 6 ; (1989) 167 CLR 177 and Boral Besser Masonry Limited v Australian Competition and Consumer Commission [2003] HCA 5 ; (2003) 215 CLR 374. 52 It seems to me that the pleading as presently formulated fails to clearly plead material facts which establish the market and other elements discussed in these reasons. The failure to plead those material facts can not be cured by an order for particulars ( Bruce v Odhams Press Limited (supra) [3]). Accordingly, it seems to me that the proper course is to strike out the statement of claim and give leave to deliver an amended statement of claim. That is not to say that the contentions advanced by the ACCC are inherently unsound. The contentions however must be framed by material facts going to each of the integers of the cause of action as the foundation on which the claims are to be made good. As to close competition, the Tribunal in Re Queensland Co-operative Milling Association Ltd (supra) said at p 190: If the firm were to "give less and charge more" would there be, to put the matter colloquially, much of a reaction? And if so, from whom? In the language of economics the question is this: from which products and which activities would we expect a relatively high demand or supply response to price change, i.e. a relatively cross-elasticity of demand or cross-elasticity of supply? By this pleading, the ACCC contends that MRPL supplied certain services to customers (as defined) and ANZ supplied particular services to the same customers. The pass-through by MRPL to customers of a proportion of a commission fee it received from ANZ so as to reduce the price of activities undertaken by MRPL in connection with an approved ANZ residential home loan below the establishment fee charged by ANZ (whether as part of a loan service or, as contended, a price for separate services) seemed, as pleaded, to produce put colloquially "a bit of a reaction". The reaction, as pleaded, was the withdrawal of accreditation and re-accreditation on terms which involved the price of a service provided by MRPL. Whether MRPL and ANZ are in the same market needs however to be properly pleaded. 53 I do not propose to deal in any detail with the second limb of ANZ's motion seeking, in the alternative, an order that the applicant provide further and better particulars of the statement of claim in response to a request made by ANZ's solicitors. The pleading of material facts by an amended statement of claim ought to deal with many of those matters. However, it may be helpful to say something about the general area of earlier disagreement on those matters which may or may not remain relevant having regard to a re-formulated pleading. 54 First, ANZ sought a statement of the services comprising "loan arrangement services" since the definition was inclusive rather than exhaustive. The ACCC confirmed that the scope of the services was said to be inclusive and as to any other services, the request was not a proper request for particulars. It seems to me, as I have said, that the applicant ought to identify the services comprising of the markets alleged, the services provided by MRPL and those provided by ANZ.


case_title: Queensland Wire Industries Pty Ltd v The Broken Hill Proprietary Company Ltd (1989) 167 CLR 177

case_text: Thus, it is necessary to plead material facts which establish that the participants to the contract, arrangement or understanding embodying the s 45A provision are engaged in the supply or acquisition of the identified services in any market in Australia and secondly, that the participants are engaged in rivalry with each other in that market in those services. Rivalry however takes place within a field of transactions between buyers and sellers and the boundaries of the field of rivalry are to be determined by not only the services supplied or acquired by a participant to the contract, arrangement or understanding but also having regard to services that are substitutable for or otherwise competitive with those services (s 4E of the Act ). Section 4E of the Act simply recognises the economic orthodoxy of close competition determined by strong substitution (over the long run two years not simply transient demand or supply responses, given a sufficient price incentive) within a field of actual and potential transactions between buyers and sellers, as the determinant of the boundaries of a market. It is not necessary to repeat the well understood passage from Re Queensland Co-operative Milling Association Ltd (supra) at p 190 adopted with approval by many authorities including Queensland Wire Industries Pty Ltd v The Broken Hill Proprietary Company Ltd [1989] HCA 6 ; (1989) 167 CLR 177 and Boral Besser Masonry Limited v Australian Competition and Consumer Commission [2003] HCA 5 ; (2003) 215 CLR 374.


case_title: Boral Besser Masonry Limited v Australian Competition and Consumer Commission [2003] HCA 5 ; (2003) 215 CLR 374


case_title: Trade Practices Commission v Nicholas Enterprises Pty Ltd & Ors (No. 2) [1979] 40 FLR 83; (1979) 26 ALR 609

case_text: Once the question of whether a separate market subsists and whether MRPL and ANZ are in competition in one or more separate markets arises, material facts which demonstrate those matters must be pleaded and ultimately established ( Trade Practices Commission v Nicholas Enterprises Pty Ltd & Ors (No. 2) [1979] 40 FLR 83 pp 110-115; (1979) 26 ALR 609 at 645-651) notwithstanding that reliance is placed upon s 45A of the Act .


case_outcome: followed

case_text: The second ground asserts bias. This is a serious allegation. It is without foundation. The appellant also asserts that the Tribunal did not refer to proper independent information for the consideration of the decision. There are a number of Full Court authorities confirming that the Tribunal's task is to consider whether it is satisfied that the requirements for the grant of a visa have been complied with. It will be difficult to achieve the requisite degree of satisfaction if the appellant does not provide sufficient information, such as by not attending a hearing. In the absence of a positive finding of satisfaction, a visa application must be rejected (see NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 , NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73). A circumstance leading to the decision to which the Refugee Review Tribunal arrived was that the appellant did not appear at the scheduled hearing. In my decisions in SZGST v Minister for Immigration and Citizenship [2007] FCA 326 and SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 I have discussed the difficulties that confront an appellant in those circumstances.


case_title: NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73


case_title: SZGST v Minister for Immigration and Citizenship [2007] FCA 326


case_title: SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328


case_text: In support of the appropriateness of that figure, I am invited to approach what is put forward along the lines discussed by the Full Court in Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR 41-993, [2004] FCAFC 72. That, of course, was a case under a different Act from that which is involved here, and an Act with different objectives. However, insofar as it dealt with the manner in which the Court should approach a statutory penalty where there is an agreement between the parties as to the appropriate penalty, that decision does provide appropriate guidance. I have also been referred to other authorities dealing more closely with questions of occupational health and safety including the recent case of Comcare v Commonwealth of Australia (2007) 162 IR 407, [2007] FCA 662 , where Madgwick J looked at a number of the factors which have been regarded as relevant by courts dealing with similar legislation in other jurisdictions.


case_title: Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR 41-993, [2004] FCAFC 72


case_text: HREOC declined to investigate the applicants' claims. Referring to s 20(2)(c)(iii) of the HREOC Act , the delegate of the President of HREOC stated that "the subject matter of your [the applicants'] complaint has been adequately dealt with". Reference was made to the applicants' extensive litigation history. Relying on s 20(2)(c)(ii) of the HREOC Act , the delegate also held that the applicants' complaint was misconceived. The delegate considered that the doctrine of judicial immunity protected the High Court and Federal Court from the investigation that the applicants sought. Citing Re East: Ex Parte Nguyen [1998] HCA 73 ; (1998) 196 CLR 354 (" Nguyen "), the delegate stated that the doctrine extended to "protection from claims brought under Commonwealth anti-discrimination and human rights laws". Additionally, the delegate was of the view that it was "arguable whether or not the human rights provisions in the HREOC Act apply to an act or practice of the Federal Court of Australia and the High Court of Australia in the exercise of its judicial power" due to the separation of powers doctrine. It was the delegate's opinion that HREOC's power to investigate an act or practice of the Commonwealth "is generally limited to the Commonwealth within its executive role." 6 The applicants applied to this Court for judicial review of HREOC's decision to decline to inquire. By order dated 4 December 2006, Sundberg J transferred the proceedings to the Federal Magistrates Court. On 2 March 2006 the second respondent made an application for summary judgment. 7 The Federal Magistrate gave judgment for the second respondent on 18 October 2007, in which he summarily dismissed the application for judicial review. In so doing, the Federal Magistrate briefly set out the background to the action and referred to the previous actions that have been pursued by the applicants. 21 Furthermore, Nguyen supports HREOC's decision to decline to inquire on the basis of an opinion formed under s 20(2)(c)(ii). Nguyen concerned a claim that a State magistrate and the Chief Judge of the County Court of Victoria contravened s 9 of the Racial Discrimination Act 1975 (Cth) by not providing the applicant with a copy of a Community Based Order Breach Report in his first language and by not providing an interpreter. In their joint judgment, Gleeson CJ, Gaudron, McHugh, Gummow and Callinan JJ held that there was a fundamental difficulty with "the notion that either a judicial officer, or a court, may be subject to legal redress, on the ground of an alleged contravention of s 9 of the Act". This was because (at 365-366): [T] here is a well established immunity from suit which protects judicial officers from actions arising out of acts done in the exercise of their judicial function or capacity. There is nothing in the Act which suggests that it was the intention of the Parliament to override that immunity. It was plainly open to HREOC to consider that the principle of judicial immunity prevented it from undertaking the investigation that the applicants sought. There is no suggestion of error in the Federal Magistrate's decision in this regard either. 22 Mr and Mrs Scott cannot satisfy the first limb of the test for leave to appeal. That is, they have been unable to establish that, in all the circumstances, the impugned decision is attended by sufficient doubt to warrant it being reconsidered by an appellate court. 23 As we have seen, the courts have already given extensive consideration to their claims and have given judgment. The time has come for Mr and Mrs Scott to turn away from their dispute with Centrelink over the Special Benefits payment.


case_text: HREOC has filed a submitting appearance in accordance with the principle in The Queen v The Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13 at 35-36. 15 The Commonwealth of Australia made submissions in opposition to the grant of leave, as well as in opposition to the applicants' other motions.


case_outcome: applied

case_text: The Federal Magistrate's decision summarily dismissing the applicants' judicial review application is interlocutory in nature, since it rests on his Honour's finding that the applicants have no reasonable prospects of success. As was said in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572 ; (2000) 104 FCR 564 at [43] per French J (with whom Beaumont and Finkelstein JJ agreed) "[i]f a proceeding is dismissed because it is frivolous or vexatious or because no reasonable cause of action is disclosed the decision is treated as interlocutory": see also Finikiotis v Sims Partners [2005] FCA 1774 at [10] per Lander J and Rana v University of South Australia [2004] FCA 559 ; (2004) 136 FCR 344 at 345-346 per Lander J. Interlocutory decisions require leave to appeal pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth). An application for leave to appeal must be determined according to the test in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 per Sheppard, Burchett and Heerey JJ. The applicants need to establish that, in all the circumstances, the impugned decision is attended by sufficient doubt to warrant it being reconsidered by an appellate court, and that substantial injustice would result if leave were refused, supposing the decision to be wrong.


case_title: Finikiotis v Sims Partners [2005] FCA 1774


case_title: Rana v University of South Australia [2004] FCA 559 ; (2004) 136 FCR 344


case_text: The Federal Magistrate's decision summarily dismissing the applicants' judicial review application is interlocutory in nature, since it rests on his Honour's finding that the applicants have no reasonable prospects of success. As was said in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572 ; (2000) 104 FCR 564 at [43] per French J (with whom Beaumont and Finkelstein JJ agreed) "[i]f a proceeding is dismissed because it is frivolous or vexatious or because no reasonable cause of action is disclosed the decision is treated as interlocutory": see also Finikiotis v Sims Partners [2005] FCA 1774 at [10] per Lander J and Rana v University of South Australia [2004] FCA 559 ; (2004) 136 FCR 344 at 345-346 per Lander J. Interlocutory decisions require leave to appeal pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth). An application for leave to appeal must be determined according to the test in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 per Sheppard, Burchett and Heerey JJ. The applicants need to establish that, in all the circumstances, the impugned decision is attended by sufficient doubt to warrant it being reconsidered by an appellate court, and that substantial injustice would result if leave were refused, supposing the decision to be wrong. 19 The central difficulty for the applicants is that, for the most part, the underlying conduct about which they complain has already been the subject of comprehensive judicial consideration. Although the applicants now formulate their claims before HREOC as violations of their human rights, there is no doubt that they continue to attack (though by another route) the conduct of Centrelink in refusing to grant Mrs Scott a Special Benefit. In this Court and the High Court, Centrelink's conduct regarding Mr and Mrs Scott has been the subject of the following decisions: • Scott v Secretary, Department of Social Security [1999] FCA 1774 (Heerey J); • Scott v Secretary, Department of Social Security [2000] FCA 1241 (Beaumont, French and Finkelstein JJ); • Scott & Anor v Secretary, Department of Social Security M112/00 (Callinan and Kirby JJ) (special leave refused); • Scott v Pedler [2003] FCA 650 (Gray ACJ); • Scott v Pedler [2004] FCAFC 67 (Gyles, Conti and Allsop JJ); and • Scott & Anor v Pedler & Ors M83 of 2004 (Hayne and Crennan JJ) (special leave refused). 20 In effect, the applicants have asked HREOC to examine the decisions of this Court and the High Court concerning their claims against Centrelink. For the most part, the judgments of this Court have been the subject of appeal or application for special leave to appeal. That is, they have already been the subject of examination and consideration by another court in the court hierarchy. Paragraph 20(2)(c)(iii) enables HREOC to decline to investigate a complaint where HREOC is of the opinion that the subject matter of the complaint has been adequately dealt with. HREOC may so conclude where the subject matter of the complaint has already been the subject of scrutiny by another person or body (such as a court). The applicants have been unable to point to anything in the present case that might raise an arguable ground for judicial review in respect of HREOC's decision to decline to inquire on the basis of an opinion formed in accordance with s 20(2)(c)(iii) of the HREOC Act . No error would appear in the Federal Magistrate's decision in this regard.


case_text: In Rossetto at [45] I referred to the test in s 31A and observed that it provides ' a more flexible and arguably less stringent test than that of Dey and General Steel', referring to Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. In Rossetto at [46] I concluded that, by either test, I was satisfied that the cause of action in that case could not succeed and was liable to be struck out.


case_text: Mr Priestley then submits that my decision to refuse his first application for recusal was incorrect, as failing to apply the common law test in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337. He submits that I made an error of law. 21 Mr Priestley points to Ebner at 363 where Gaudron J noted that the test with respect to the appearance of bias is ' "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question [he or she] is required to decide" ' (citing Johnson v Johnson (2000) 201 CLR 488 at [11] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). Mr Priestley says that it is necessary for me first to test his application for my recusal in the way described by the Court in Ebner and to consider the history of the proceedings and all relevant facts and circumstances as a whole to decide whether a perception of bias has arisen. 24 I am fully aware of the test in Ebner and my consideration of Mr Priestley's submissions regarding a reasonable apprehension of bias was in accordance with that test. I do not consider that this ground supports a basis for me to recuse myself. Accordingly, this application for recusal is refused. 25 Mr Priestley makes a further application for me to recuse myself and submits that I had ' not disclosed all relevant circumstances regarding [my] decision to continue hearing this matter '. He argues that I have not complied with the Guide to Judicial Conduct 2007 at paragraph 3.5(f). That paragraph provides that if a judge decides to sit, the reasons for that decision should be recorded in open court, as should the disclosure of all relevant circumstances. 26 The reasons for my decision on applications 1 and 2 have been recorded. Mr Priestley submits that the "relevant circumstances" that require disclosure are the circumstances surrounding my participation as a rule making judge and the process by which O 20 r 5 of the Federal Court Rules was passed. 27 The respondents submit that the rule exists and has been made. The respondents say that the matters that go beyond this fact, such as who actually drafted the rule, are irrelevant. 28 I do not consider that this application contains grounds that support a basis for recusal. Accordingly, this application for recusal is refused.


case_title: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125


case_title: Johnson v Johnson (2000) 201 CLR 488

case_text: Mr Priestley points to Ebner at 363 where Gaudron J noted that the test with respect to the appearance of bias is ' "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question [he or she] is required to decide" ' (citing Johnson v Johnson (2000) 201 CLR 488 at [11] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). Mr Priestley says that it is necessary for me first to test his application for my recusal in the way described by the Court in Ebner and to consider the history of the proceedings and all relevant facts and circumstances as a whole to decide whether a perception of bias has arisen.


case_text: In any event, where the basis for the alleged apprehension of bias applies to all judges of the Court, the doctrine of necessity applies so that a judge of this Court has to hear the application. The doctrine of necessity permits a member of a court who has some interest in the subject matter of the litigation to sit on a case where no judge without such an interest is available to sit ( Laws v Australian Broadcasting Tribunal [1990] HCA 31 ; (1990) 170 CLR 70 per Mason CJ and Brennan J at 88). 15 Accordingly, this application for recusal is refused. 16 After I determined that I would not recuse myself on the ground of bias and/ or reasonable apprehension of bias, Mr Priestley seeks to raise an additional ground as to why I should recuse myself, namely, my role as a rule making judge of this Court.


case_title: Priestley v Godwin [2008] FCA 835

case_text: The respondents in each proceeding have filed and served notices of objections to competency. When the notices came on for hearing before Gyles J, Mr Priestley raised a constitutional issue ('the constitutional issue'). Accordingly, Gyles J did not proceed with the hearing but ordered that s 78B notices be served ( Priestley v Godwin [2008] FCA 835 (' Priestley ') at [3]). 3 Mr Priestley challenges the constitutional validity of s 31A of the Federal Court of Australia Act 1976 (Cth) ('the Act') and O 20 r 5 of the Federal Court Rules which was made in furtherance of that section. Mr Priestley's primary submission is that the judges of the Federal Court were influenced by Parliament to replace the former test in the Federal Court Rules of "no reasonable cause of action" made, he says, under the Court's inherent jurisdiction, with the statutory test contained in s 31A, thereby compromising the independence of the Court. 4 On 11 June 2008 the constitutional issue was listed for hearing on 16 July 2008, before me. On 14 July 2008 Mr Priestley sent a letter to my Chambers requesting that the hearing be ' adjourned for a time and date to be determined by the Federal Court '. The basis for this request was ' the commencement of proceedings in the High Court ' for an order to show cause. I declined to adjourn the hearing and the matter came before me on 16 July 2008. 5 Mr Priestley presses his application for an adjournment, on the basis that he has filed an application in the High Court. That application relates to his objection to any judge of the Federal Court, or any judge that participated in the making of O 20 r 5 of the Federal Court Rules , sitting on his matter. The application to the High Court also relates to the decision of Stone J in Priestley not to recuse herself. Mr Priestley has joined me as a defendant in the High Court proceedings, filed before the first return of these proceedings before me, on the basis of bias and/ or reasonable apprehension of bias. 6 The respondents neither consent to nor oppose the application for adjournment. Although proceedings have been filed in the High Court, no application has been made to remove this matter to the High Court. The proceedings are before me for hearing. The Court has set aside the time for that hearing and the parties are present. The respondents are represented by counsel and solicitors. I see no sufficient reason to adjourn the matter because Mr Priestley has brought an application in the High Court. That application relates, in part, to a prior aspect of these proceedings, specifically Stone J's refusal to recuse herself, and an anticipatory claim concerning me. 7 The application for an adjournment is refused. 8 Mr Priestley has made four applications that I recuse myself from hearing the matter.


case_text: Mr Priestley submits that I am disqualified from hearing this matter by reason of my specific interest in O 20 r 5 of the Federal Court Rules . Mr Priestley submits that I have made comments in a judgment regarding s 31A of the Act and that I have therefore considered and applied s 31A. He submits that this is a further ground for a reasonable apprehension of bias. He says that in Rossetto v Meriton Apartments Proprietary Limited [2006] FCA 1290 I made comments to the effect that s 31A is a valid law of the Commonwealth and that this shows that there is a reasonable apprehension of bias on my part. 18 In Rossetto at [45] I referred to the test in s 31A and observed that it provides ' a more flexible and arguably less stringent test than that of Dey and General Steel', referring to Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. In Rossetto at [46] I concluded that, by either test, I was satisfied that the cause of action in that case could not succeed and was liable to be struck out.


case_outcome: considered

case_text: Mr Priestley submits that I should recuse myself from hearing this matter due to a reasonable apprehension of bias. Mr Priestley points to Deane J's statement in Webb v The Queen [1994] HCA 30 ; (1994) 181 CLR 41 at 74 where his Honour noted that one of the categories of disqualification by reason of appearance of bias was ' disqualification by interest... where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice '. Mr Priestley submits that I have an interest in the proceedings and that I am biased as a rule making judge of the Federal Court. 10 Further, it is Mr Priestley's submission that there is no judge presently sitting on the Federal Court who can sit on his case, either because that judge was also a rule making judge with respect to the impugned rule, or because the judge has applied s 31A of the Act. Although judges have been appointed to the bench since O 20 r 5 was passed, Mr Priestley submits that these judges are also biased as they have applied s 31A of the Act in their judgments. Mr Priestley says that would give rise to a reasonable apprehension of bias on the part of that judge because he or she has therefore been influenced by Parliament. 11 Mr Priestley proffers two alternatives to myself or any other judge of the Court hearing his matter. He submits that the matter could be referred to the High Court under s 40 of the Judiciary Act 1903 (Cth) ('the Judiciary Act ') and that he could apply for a writ of prohibition and ask the High Court to issue s 78B notices in order for the High Court to examine the constitutional validity of s 31A of the Act. The other alternative Mr Priestley proffers is that Parliament appoint a new judge to the Federal Court to sit on his case.


case_text: The applicants seek compound interest. They submit that the decision of the High Court in Hungerfords v Walker [1989] HCA 8 ; (1988-1989) 171 CLR 125 is authority for the proposition that compound interest may be awarded by way of damages. The decision is certainly authority for that proposition. Such an award is distinct from an award of interest pursuant to the statutory power conferred upon this Court by s 51A of the Federal Court of Australia Act 1976 (Cth) (the "Federal Court Act"). It is clear from the reasons of Mason CJ and Wilson J at 149 (Brennan and Deane JJ concurring) that an award of compound interest must be for 'a foreseeable loss, necessarily within the contemplation of the parties, which is directly related to the defendant's breach of contract or tort' . In that case, the plaintiff conducted a business and had borrowed substantial amounts for that purpose. The award was designed to compensate the plaintiff for specifically identifiable losses. Compound interest was not allowed by way of damages on amounts which would have been spent for private purposes. 571. As far as I am aware, none of the applicants has asserted a case of the kind considered in Hungerfords . Given the relatively small amounts of most investments and the personal circumstances of many of the applicants, it is likely that many would have expended any interest on living expenses and other private outgoings. The loss of interest may have caused them a degree of hardship or discomfort, but they cannot be compensated for that in dollar terms. It is not appropriate, in this case, to award compound interest as damages. 572. As to the rate at which the awards should bear interest pursuant to s 51A, ex 74 contains information as to bank deposit rates for the period from July 1999 until September 2004. The table shows monthly fluctuations in interest rates for various types of deposit and for various periods. Given that the applicants have been out of their funds since 23 July 2000 it seems appropriate to adopt the rate payable for the longest available term which is five years. The average rate over the period from 23 July 2000 until September 2004 is 4.9 per cent. The awards will bear interest at that rate from 23 July 2000 until the date of judgment. To this sum will be added, in the case of each applicant, interest at the same rate on the amount of the first distribution for the period of 2.75 years and on the amount of the second distribution for 3.8 years. There may have to be further adjustments in the cases of the thirty-eighth and thirty-ninth applicants. I will hear further submissions after publication of these reasons. 573. It might be thought that this approach involves the award of interest upon interest, which approach is not permitted by s 51A. I refer to my inclusion of an amount for interest in calculating the award of damages and then allowing interest on the amount of the award. However I do not understand s 51A to regulate the calculation of damages. It rather addresses the award of interest after such calculation. It does not authorize compound interest on an award.


case_outcome: distinguished

case_text: MDRN seeks to narrow the construction of cl 5(e)(v) of the St Paul policy, submitting that it does not operate to deprive an innocent partner of indemnity where loss is the result of the dishonest or fraudulent act of an employee. The point is clearly unarguable. Clause 5(e)(v) specifically excludes indemnity where the loss occurs in those circumstances. The argument would result in the clause having no effect whatsoever. MDRN sought to rely upon the decision of the Full Court of South Australia in Gilmour v AMP General Insurance (1997) 9 ANZIC 61-372. However it is relatively clear that the case did not involve a clause such as cl 5(e)(v). There is nothing in this argument. 611. As I understand it, my findings lead to the conclusion that St Paul is obliged to indemnify MDRN only in the amount of Mr Bengston's claim. However I will invite the parties to make further submissions should they wish to do so. 612. One other matter requires comment. St Paul submits that the fees charged by Mr Jessup are not recoverable by the applicants. The applicants do not claim them as damages. However they were deducted from moneys received by Mr Jessup and so the amount thereof was not passed on to investors. The amount of each claim has been increased as a result of such deduction.


case_text: The reference to 'Bells case' is to the decision of Chesterman J in Moloney & Anor v Bells Securities Pty Ltd & Ors [2005] QSC 013. In that case his Honour declined to allow as damages the costs of a liquidator appointed in circumstances similar to those in the present case. St Paul's argument seems to be that as the period of the ASIC exemption was to expire on 31 October 2001, a liquidator would have been appointed in any event. It is said to follow that the costs incurred by Mr Jessup were not a consequence, or perhaps a foreseeable consequence, of any conduct on the part of the respondents, particularly MDRN. The applicants did not take this point in argument, but it addresses the measure of damages in their claims against MDRN. 618. In causes of action for misleading and deceptive conduct and negligent misstatement, the relevant measure of damages is designed to put the applicant in the position in which he or she would have been, had the relevant conduct not occurred. That is often achieved by awarding the difference between the value of the property acquired as a result of the relevant conduct and the price paid for it. However there are limits upon the extent of permissible recovery. I accept that for present purposes, the test of reasonable foreseeability provides such limit. Had Project Results discharged its obligation, the loan would have been repaid in 2000. At the time of the relevant conduct it was reasonably foreseeable that the applicants would suffer loss as a result of Project Results failing to meet such obligations. It was also reasonably foreseeable that in that event, the applicants would have to resort to available securities, including Mr Rivett's guarantee, in order to recover their investments and interest. It was similarly foreseeable that, as a result of their conduct, MDRN and the trustee company would be unable to attend to such realization, and that somebody else would have to do so. That was likely to cost money.


case_title: Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound) [1961] AC 388

case_text: Paragraph 12 of the statement of claim pleads that: 'The [investment summary] represented and contained advice that the application from Rivett for an advance on specified security referred to in the [investment summary] had been approved by the Respondents under its loan application assessment programme, that being in accordance with the procedure referred to in paragraph 10.' 492. Paragraph 10 pleads representations in the brochure and newsletters concerning steps taken in assessing loan applications. Thus it is claimed on behalf of those applicants who received the brochure and/or either or both of the newsletters that they understood the investment summary as referring to one or more of those other documents. See par 39 of the applicants' written submissions. As I understood the applicants' final submissions only those applicants who received the autumn 1999 newsletter now rely on this alleged misrepresentation in the investment summary. It will be convenient to deal with this aspect after I have dealt with the other, more commonly shared, complaints. 493. On pp 3 and 5 of the investment summary there are statements which suggest that all units (ex 54A) or all units in Stage 1 (ex 54B) have been sold. I have previously set out relevant passages from pp 2, 3, 4 and 5 and given my reasons for concluding that a reader would take the statements in ex 54A as referring to pre-sale of all units in Stage 1. See [38]-[46]. The difference in wording between ex 54A and ex 54B is of no consequence in this regard.


case_title: Mount Isa Mines Ltd v Pusey [1970] HCA 60 ; (1970) 125 CLR 383


case_text: In my view it was reasonably foreseeable that as a result of the conduct of the trustee company and MDRN, additional costs would be incurred in realizing the securities. That is sufficient to permit recovery by the applicants from MDRN of the reasonable costs so incurred. See South Australia v Johnson (1982) 42 ALR 161. The prospective expiry of the ASIC exemption played no causal role in the incurrence by the applicants of their costs, nor did it render them too remote to be recoverable in these proceedings. 620. MDRN pleads professional indemnity policies with QBE for the periods from 6 September 1998 to 6 September 1999 (the "1998 policy"), 6 September 1999 to 6 September 2000 (the "1999 policy") and 6 September 2000 to 6 September 2001 (the "2000 policy"). Clause 1.1 of each policy provided: 'QBE agrees to indemnify the insured against legal liability for any Claim for compensation first made against the Insured during the Period of Cover and which is notified to QBE during the Period of Cover, in respect of any civil liability whatsoever and howsoever incurred in the conduct of the Professional Business Practice.' 621. Pursuant to cl 5.1 the period for notification of a claim was extended to include the period of 28 days after the end of the period of cover. Clause 5.2 provided: 'If during the Period of Cover the Insured becomes aware of any fact or circumstance that might give rise to a Claim under this Policy and elects to give notice in writing to QBE of such fact or circumstance, then any Claim which may subsequently arise out of such fact or circumstance shall be deemed to be a Claim made during the Period of Cover PROVIDED ALWAYS THAT such written notice is given to QBE during the same period of cover or within 28 days after its expiry.'


case_outcome: discussed

case_text: The decision of the High Court in FAI General Insurance Co Limited v Australian Hospital Care Pty Limited [2001] HCA 38 ; (2001) 204 CLR 641 at [40] [46] (per McHugh, Gummow and Hayne JJ) demonstrates that QBE is not entitled to avoid payment pursuant to the policy upon the basis of MDRN's failure to notify this claim during the period of cover, save to the extent permitted by s 54. Although MDRN's pleading does not say so, the relevant "act" for the purposes of s 54 is that failure. It may be that the decision in FAI v Australian Hospital Care can be distinguished for present purposes. I say that in view of the language of "election" contained in cl 5.2 of the present policy. The language of the policy in that case seems not to have contained that concept. It may be arguable that the High Court was not addressing a situation in which the parties had stipulated for an election, and that an election may not accurately be described as an "omission". However the contrary is also arguable. In any event, I proceed upon the basis that the decision is relevant to MDRN's claim to indemnity under the 1998 policy. 642. The cross-claim was amended to add the claim under the 1998 policy and reliance on s 54. The amendment was provoked by QBE's plea of non-disclosure and misrepresentation in connection with the 1999 policy. Paragraph 18 of the cross-claim asserts: 'If the matters alleged by QBE in its amended defence do constitute non-disclosure or misrepresentation in respect of the 1999 policy, then those matters, or certain of them, would constitute a fact or circumstance that might give rise to a claim for the purpose of cl 5.2 of the previous year policy.' 643. This method of pleading is unsatisfactory. The matters so alleged by QBE are numerous. They relate to MDRN's system for loan approval and particular aspects of its conduct concerning the Yandina project, in particular, compilation of the investment summary. It would have been helpful had MDRN specified the precise matters which it claims to have omitted to notify. In any event, QBE denies that such matters could have given rise to a claim under the 1998 policy. It also denies that during the term of that policy, MDRN became aware of such matters. It is said to follow that MDRN 'are not, and were not during the term of the (1998) policy, entitled to give notice' of such matters, and that cl 5.2 of the 1998 policy therefore does not apply so as to deem there to be a claim under that policy, regardless of any question of late notification. As it is MDRN's primary position that it is entitled to indemnity pursuant to the 1999 policy, it will be best to leave consideration of the argument concerning the 1998 policy and the application of s 54 until the issue of liability under the 1999 policy has been determined.


case_text: The question, then, is whether any of the three matters mentioned above was known to MDRN, and if so, whether it knew that any such matter was relevant to QBE's decision to accept the proposal, or whether a reasonable person, in the circumstances, could have been expected to know that such matter was relevant. It is appropriate to consider the meaning of each of the words "known", "knows" and "know" in s 21. Two questions arise for consideration. The first is whether the required knowledge must be actual, or whether it is sufficient that it can be inferred from other matters known to the insured. The second is the extent to which the knowledge of some person other than the insured is to be imputed to him or her. The Insurance Contracts Act seems not to deal with either question other than in the bald terms of s 21. However the cases establish, with respect to the first question, that it is actual knowledge which must be disclosed. Thus in Permanent Trustee Australia & Anor v FAI General Insurance Co Ltd (1998) 44 NSWLR 186 at 247, Hodgson CJ in Equity (as his Honour then was) said: 'In my opinion, "known" in s 21(1) means more than "suspected" or "believed". What is required is that the matter should be the subject of a true belief, held with sufficient assurance to justify the term "known". However, it must be remembered that a belief may sometimes itself be a matter relevant to the decision of an insurer. An insured may know that it has a particular belief, and know that its having that belief is relevant to the decision of an insurer, in which case that belief itself is a matter which must be disclosed.'


case_title: Permanent Trustee Australia Co Ltd & Anor v FAI General Insurance Co Ltd [2001] NSWCA 20 ; (2001) 50 NSWLR 679

case_text: On appeal (at [2001] NSWCA 20 ; (2001) 50 NSWLR 679) Handley JA said at [45] et seq (Meagher and Powell JJA concurring): '45. The problem of defining, for legal purposes, the boundary between belief and knowledge did not arise for the first time in this case. The problem has been considered in a number of legal contexts, and in general it may be said that, for legal purposes, our knowledge includes the facts, apart from matters of religious faith, that we believe to be true. 46. Thus out of court admissions are receivable in evidence against a party if they disclose an intention to affirm or acknowledge the existence of a fact whatever the party's source of information or belief; see Lustre Hosiery Ltd v York [1935] HCA 71 ; (1935) 54 CLR 134 at 143. However, as the Court said (at 144): "If it appears that [the party] had no knowledge, or that, although he had some means of knowledge, he had formed no certain or considered belief and indicated nothing amounting to a personal judgment or conclusion of his own, the probative force of the admission may be so small that a jury ought not to be allowed to act upon it alone, or in preference to opposing evidence." ... 54. ... When a person, on the basis of some information, holds a belief on which that person is prepared to act in the world of practical affairs, he or she knows that fact for most legal purposes, and certainly for the purposes of s 21. '


case_title: Midaz Pty Ltd v Peter McCarthy Insurance Brokers Pty Ltd (1999) 1 Qd R 279

case_text: In Midaz Pty Ltd v Peter McCarthy Insurance Brokers Pty Ltd [1999] 1 Qd R 279, the Court of Appeal of Queensland addressed the question of whether a person who was aware of certain facts should be taken to have knowledge of a reasonably available inference from those facts. Of that proposition Pincus JA said at 283-4 (Moynihan SPJ and Byrne J concurring): 'Acceptance of that argument must depend on adoption of a construction of section 21(1) which is rather generous to insurers: that the section means that if an insured knows matter A which is not in itself relevant to insurance, but the insured should reasonably infer from matter A a further matter B which is so relevant, then the duty to disclose matters A and B arises. This construction is in practical terms little different from reading the introductory part of section 21(1) as if it included the expression "... every matter that is known to or should be inferred by the insured". I have found no authority which supports such a reading, nor does it appear to be one which must be adopted to give section 21(1) a sensible operation.'


case_text: As to imputed knowledge, in Advance (NSW) Insurance Agencies Pty Ltd v Matthews (1987) 4 ANZ Ins Cas 60-813, Young J said at 74,998: 'Although the language of section 21 is awkward, in my view it means that if a reasonable person in the circumstances could be expected to know that a matter is relevant it must be disclosed and whether that be the case or not, if the insured actually knows the relevant thing, that is enough. However, the insured must have actual knowledge of the thing, the mere fact that he ought in the ordinary course of business to have known is insufficient.' 726. Nonetheless, in some cases, knowledge of an agent will be imputed to the principal. In Peter MacDonald Eggers, Simon Picken and Patrick Foss, Good Faith and Insurance Contracts (2 nd ed), Insurance Law Library, London, 2004, the authors assert at par 13.49: 'The agents whose knowledge principally is imputed to the assured are those agents who are concerned with the custody, care or status of the subject matter insured, general agents who are so placed with respect to the assured that they may be said to make decisions for the assured generally and agents who are charged with arranging the insurance.'


case_text: The authors of MacGillivray on Insurance Law (10 th ed) say at par 1812: 'It is not all agents whose knowledge is imputed in that way for purposes of non-disclosure but only those agents who are "agents to know" that is to say, are responsible for keeping the assured informed about the subject matter of the insurance, either because they are responsible for placing the insurance or because they have the management of it for the assured. If such an agent owes a duty to communicate information which is relevant to the insurance, but fails to do so, the assured is deemed to know what in the ordinary routine of his business he should have been told if the agent had performed his duty, but he will not be deemed to know facts which, whether or not owing to the deficient organization of the business, no agent was responsible for communicating to him.' See also Lindsay v CIC Insurance Ltd (1989) 16 NSWLR 673 and Ayoub v Lombard Insurance Co (Aust) Pty Ltd (1989) 5 ANZ Ins Cas 60-933.


case_title: Ayoub v Lombard Insurance Co (Aust) Pty Ltd (1989) 5 ANZ Ins Cas 60-933


case_text: McNair J discussed the matter at length in Australia and New Zealand Bank Limited v Colonial and Eagles Wharves Limited (1960) 2 Lloyd's Rep. 241. In that case his Lordship assumed that at common law, rules derived from the Marine Insurance Act 1906 (Imp) applied to non-marine insurance. After reference to the authorities, his Lordship observed at 254: 'These judgments make it clear to my mind that it is not the knowledge of all agents or servants that is imputed to the proposer of any marine insurance, but only the knowledge of quite a limited class, namely, the broker who actually places the insurance, the master or the ship agent, or, to use Lord Halsbury's phrase, "his general agent for the management of his shipping business." On the facts of the present case, Henderson was not within that limited class. Though, in a sense, the key man in the sense that a mistake by him would mean the failure of the system his duties were almost entirely clerical; it was not established that he had any discretion or executive authority; he was not superior to the head clerks in the warehouses but co-ordinate with them. He was not, in my judgment, a person within the class of those who were under a duty to report to the company.' See also Sutton's Insurance Law in Australia (3 rd ed) at pars 3.183 and 3.184, and Tarr's Australian Insurance Law at 104-105. It seems to be generally accepted that the position under the Insurance Contracts Act reflects the common law position. 731. The general principles to which I have referred are subject to a critical qualification. In ANZ Bank v Colonial Wharves (supra) McNair J said at 254: 'There is, however, another answer in law to the third party's contention on this point, namely, that assuming that he was within the class of persons who were under a duty to report so that his knowledge was to be imputed to his principal, he, on the principle stated in Bell & Anor v Lever Bros Ltd & Ors [1931] UKHL 2 ; [1932] A.C. 161, and J C Houghton & Co v Nothard, Lowe & Wills Ltd [1928] A.C. 1 ... was under no duty to report his own dereliction of duty, and his knowledge of that dereliction is not to be imputed to his principals.' Lord Atkin ([1932] A.C. 6, at p 228) puts the matter succinctly in the following passage: "... The servant owes a duty not to steal, but, having stolen, is there super-added a duty to confess that he has stolen? I am satisfied that to imply such a duty would be a departure from the well established usage of mankind and would be to create obligations entirely outside the contemplation of the parties concerned ...".' 732. Sutton observes, concerning that decision, at 339: 'What had to be considered was what an honest and competent agent would have communicated to the assured in the ordinary course of business, and such an agent would not have had any dishonesty to reveal.'


case_title: Australian Insurance Law Commercial Union Assurance Co of Australia Ltd v Beard (2000) 11 ANZ Ins Cas 61-458

case_text: McNair J discussed the matter at length in Australia and New Zealand Bank Limited v Colonial and Eagles Wharves Limited (1960) 2 Lloyd's Rep. 241. In that case his Lordship assumed that at common law, rules derived from the Marine Insurance Act 1906 (Imp) applied to non-marine insurance. After reference to the authorities, his Lordship observed at 254: 'These judgments make it clear to my mind that it is not the knowledge of all agents or servants that is imputed to the proposer of any marine insurance, but only the knowledge of quite a limited class, namely, the broker who actually places the insurance, the master or the ship agent, or, to use Lord Halsbury's phrase, "his general agent for the management of his shipping business." On the facts of the present case, Henderson was not within that limited class. Though, in a sense, the key man in the sense that a mistake by him would mean the failure of the system his duties were almost entirely clerical; it was not established that he had any discretion or executive authority; he was not superior to the head clerks in the warehouses but co-ordinate with them. He was not, in my judgment, a person within the class of those who were under a duty to report to the company.' See also Sutton's Insurance Law in Australia (3 rd ed) at pars 3.183 and 3.184, and Tarr's Australian Insurance Law at 104-105. It seems to be generally accepted that the position under the Insurance Contracts Act reflects the common law position. 734. As the duty to disclose extends only to matters which the insured knows, only matters actually known to a relevant agent will be imputed to him or her. In Commercial Union Assurance Co of Australia Ltd v Beard (2000) 11 ANZ Ins Cas 61-458, Davies AJA (Meagher JA and Foster AJA concurring) said at 75-259: 'The terms "known" and "knows" are used in their common law sense. Their primary denotation refers to that which is actually known; but it would be wrong to import the word "actually" into a provision such as section 21. The section does not use it. The terms "known" and "knows" are used in their ordinary sense. Whether a matter is known is a question of fact for the judge or jury.'


case_text: In Hammer Waste Pty Ltd v QBE Mutual Ltd [2002] NSWSC 1006 , Palmer J referred to that decision and said: '... (I)n s 21(1) ... the word "know" is used in its ordinary sense; it implies actual, not constructive, knowledge both on the part of the insured and on the part of any agent or employee of the insured whose "knowledge" is to be imputed to the insured. The obligation to disclose something "known" can attach only to something which, at the time for disclosure, a person actually has in his or her consciousness or else something which exists in some record or other source of information which the person actually knows about and to which the person has access. So, for example, I "know" my driving licence number for the purposes of s 21(1) ... even though I cannot recite it off hand because I actually know that it is to be found in the plastic card in my wallet.' 736. I return to the three matters which may have required disclosure. I am satisfied that a reasonable person, in the circumstances, could be expected to know that each of those matters would be relevant to QBE's decision. I have indicated with respect to the third of those matters, divergence between contents of the newsletters and actual practice, that I am not satisfied that there was any significant divergence. However, for reasons which appear below, it is not necessary finally to decide that question. 737. QBE asserts that Mr Ryan was familiar with the content of the investment summary and knew that Mr Blackadder did not carry out detailed checks of the asset positions of applicants for loans as allegedly asserted in the newsletters, or credit checks against guarantors as asserted in the winter 1999 newsletter. It is said to follow that he had knowledge which should have been disclosed. In my view unless asked, Mr Ryan had no duty to disclose either the content of the newsletters or the actual practice which was adopted. At least for present purposes, neither matter, by itself, exposed either MDRN or QBE to risk. The relevant matter was the alleged divergence between the two. As I have said, I do not necessarily accept that there was a significant divergence. It is at least arguable that the practice as described by Mr Blackadder and Mr Ryan was a form of checking in the sense in which the term was used in the newsletters. Potential investors may have understood the newsletters to imply something more, but for present purposes we are looking at the subjective states of mind of Mr Blackadder and Mr Ryan.


case_text: On 30 June 2006, this application for leave to appeal was filed. Leave is required because the judgment of Smith FM is an interlocutory decision. The test as to whether leave to appeal from an interlocutory decision should be granted is that enumerated in the Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397: first, whether in all the circumstances the decision is attended with sufficient doubt to warrant it being reconsidered by an appeal court; and secondly whether substantial injustice would result if leave were refused, supposing the decision were to be wrong. In this particular case, neither test is satisfied. 3 The Draft Notice of Appeal which the applicant wishes to argue alleges two grounds: '1. The appellant contended in the FMC that the Tribunal fell into jurisdictional error in relying upon historical country information, rather than up to date information, in relation to the discrimination against and persecution of Chinese in Malaysia. The FMC held that the Tribunal did not fall into jurisdictional error in relation to this matter. The FMC erred in making this finding. 2. The appellant contended in the FMC that the Tribunal based its decision on country information which it did not put to the appellant. The FMC held that the Tribunal did not fall into jurisdictional error in relation to this matter. The FMC erred in making this finding.' 4 Both grounds allege misuse of independent country information. The fact is the Tribunal did not refer to, let alone rely upon, any country information in its decision to affirm the decision of the delegate. The grounds in the Draft Notice of Appeal were not pleaded in the application by the applicant to the Federal Magistrates Court, nor raised in the hearing before Smith FM.


case_outcome: referred to

case_text: The reasoning of the Tribunal was of the kind referred to by Allsop J in SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195. Allsop J at par 11 said that the Tribunal's reasons in that case ' were related to the insufficiency of the material placed before it by the appellant and its express state of lack of satisfaction '. That case involved the same factual circumstances as apply here. 7 The Federal Magistrate was right to conclude that there was no arguable case for the relief which the applicant claimed. 8 The application for leave is refused with costs.


case_text: 4 of the notice of appeal focused on the way in which the Federal Magistrates Court had dealt with the appellant's attempt to make further submissions after the hearing of the appeal by that court. The federal magistrate dealt with this attempt in an addendum to her Honour's reasons for judgment. At [94]-[95], her Honour said: After the conclusion of the hearing, the applicant sent to my associate two emails which purported to be post hearing submissions. It did not come to my attention for some weeks that the applicant had purported to file post hearing submissions. When I learned of them, I asked my associate to email the applicant, advising him that post hearing submissions could not be received by the court without leave. I did not at that stage read the purported post hearing submissions. The applicant eventually decided to file an application seeking leave to rely on the purported post hearing submissions. The respondent filed material in response to that application, which was heard on 12 August 2008. The applicant explained to the court in an affidavit that he had not put forward at the hearing the matters contained in his purported post hearing submissions because it was a long day and he was tired, particularly because of his age and a hearing problem. He also said that the submissions merely highlighted aspects of the evidence, which the court should have been aware of in any event. At [96]-[97], her Honour cited Carr v Finance Corporation of Australia Ltd [No 1] [1981] HCA 20 ; (1981) 147 CLR 246 at 257-258 per Mason J and Stockdale v Alesios [1999] VSCA 128 ; [1999] 3 VR 169. Both these cases are authority for the proposition that a court cannot receive further submissions after a hearing without granting leave for such submissions. In the latter case at 179, Phillips JA spoke of certain exceptions to that general principle, "such as an unexpected change in the position of the parties which bears upon the disposition of the appeal or the discovery after argument concludes of relevant legislation or some further decision of authority to which the court should be referred."


case_text: 28 October 2004, the Tribunal affirmed the respondent's decision. The appellant appealed to this Court. On 1 December 2005, Finn J set aside the Tribunal's decision and remitted the matter to the Tribunal for re-determination. See Chu v Telstra Corporation Ltd [2005] FCA 1730 (2005) 147 FCR 505. At [34] , his Honour found that the Tribunal did not address itself to the express terms of s 24A of the FOI Act, by asking itself whether reasonable steps had been taken, rather than whether all reasonable steps had been taken. At [35]-[37], his Honour said: It is understandable, where the decision as to the taking of all reasonable steps is left to the agency or Minister concerned (subject to Tribunal review), why this more stringent requirement has been imposed. A person requesting access to a document that has been in that agency's or Minister's possession should only be able to be denied on the s 24A ground when the agency (or the Minister) is properly satisfied that it has done all that could reasonably be required of it to find the document in question. Taking the steps necessary to do this may in some circumstances require the agency or Minister to confront and overcome inadequacies in its investigative processes. Section 24A is not meant to be a refuge for the disordered or disorganised. The Tribunal's failure to appreciate the significance of "all" has, in my view, led it to adopt a tempered and erroneous view of what is required to be done for s 24A purposes. In saying this I infer, as I earlier indicated, that it adopted the approach to s 24A espoused in earlier Tribunal decisions. In consequence I am not satisfied that the Tribunal properly understood the critical evaluation it was required to make of the steps taken by Telstra. The case at first instance The notice of appeal from the Tribunal's decision, dealt with by the Federal Magistrates Court, was 23 pages long. It identified 10 questions, said to be questions of law. A substantial amount of the 20 pages of the document devoted to the grounds of appeal was taken up by detailed comments on the facts, including suggestions that the Tribunal ought to have mentioned in its reasons for decision details which the appellant said were in the evidence before it. When he turned to dealing with his questions of law, in some cases the appellant also took issue with the Tribunal about the facts. In her reasons for judgment, the federal magistrate dealt with all ten of the questions raised by the appellant. In addition, her Honour dealt with six additional questions and with an attempt by the appellant to provide the Court with further submissions after the hearing of the appeal.


case_text: appellant appealed from the Tribunal's decision to this Court, pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). By that subsection, such an appeal is limited to a question of law. Pursuant to s 44AA of the AAT Act, the appeal was transferred to the Federal Magistrates Court. On 15 August 2008, the learned federal magistrate dismissed the appeal with costs. Her Honour's reasons for judgment are published as Chu v Telstra Corporation Ltd [2008] FMCA 645. The appellant then appealed to this Court from that judgment. The appellant remains convinced that the respondent has further documents that fall within his request under the FOI Act. He maintains that there are further searches that could be carried out to locate those documents, and that it would be reasonable for Telstra to conduct those searches. He is unable to accept that the Tribunal's decision concluded this issue against him, and that its decision was essentially one of fact. The appellant has had difficulty arguing his appeal by reference to questions of law. The facts The relevant facts are summarised in the reasons for judgment of the federal magistrate. The appellant's employment history with the respondent goes back to 1989, when the respondent was Telecom Australia. After the appellant had been retrenched on 8 September 1997, solicitors acting on his behalf made a request, by letter dated 13 November 1997, pursuant to the FOI Act, for access to all of the files held by the respondent in relation to the appellant. The appellant did not pay the required application fee until 13 February 1998, after which the respondent began to process the request. By letter dated 20 April 1998, the respondent advised the appellant that it had decided to grant full access to all the documents that had been found. Those documents were described in the following terms: a complete copy of the legal file compiled in anticipation of an unfair dismissal case concerning Mr. Chu, including all available documents from Mr. Chu's Managers and all available personnel documents a copy of all paperwork dealing with the payout of Mr. Chu's redundancy a copy of all standard system reports dealing primarily with leave and pay history details; as previously discussed such standard reports include any information generally considered to be of use to a non-systems person and they are released free of charge