case_text: Lastly, it was put that there was no evidence of reliance on the fifth respondent because of Dr Lakshmanan's lack of knowledge of its existence and that in order to enable the applicants to succeed they had to know of the existence of that corporation. I put to Mr Wood examples where courts have held, such as in Hamilton v Whitehead [1988] HCA 65 ; (1988) 166 CLR 121 at 127, that the act of an individual was the act of the corporation. If, here, it could be found, and I make no finding about this, that Mr Spratt was acting on behalf of the fifth respondent then his acts could be, I do not say they would be, found to be the fifth respondent's acts and likewise his omissions its omissions. 12 This application was made without notice, by only one of the respondents. The other respondents do not ask me to dismiss the case against them and the factual and legal issues which I have recounted above suggest that in order to resolve the matter at this point would require me to reserve judgment, analyse in some detail the evidence and then deliver a judgment at a later time, thereby interrupting the flow of the evidence. I do not believe that that would be in the interests of justice in a case in which fraud is alleged and where I have just had the benefit, as a trial judge, of observing two of the principal witnesses giving evidence as to the circumstances in which it is alleged that fraud or misleading conduct occurred. 13 The other basis on which Mr Wood submitted that I should dismiss the proceedings was that the allegation of fraud itself was so serious that there being the legal and evidentiary weaknesses to which he pointed in respect of the s 52 counts I should dismiss the case rather than require his client to be faced in litigation with the prospect of an adverse finding.


case_outcome: referred to

case_title: Hummerstone v Leary [1921] 2 KB 664

case_text: In James v ANZ Banking Group Ltd (No 2) (1985) 9 FCR 448, Toohey J considered a similar situation and (at 9 FCR at 453) his Honour referred to decisions of the English Divisional Court in Hummerstone v Leary [1921] 2 KB 664, and of the Full Court of the Supreme Court of New South Wales in Menzies v Australian Iron and Steel Limited (1952) 52 NSWSR 62. In the latter case, at the close of the plaintiff's case, counsel for the employer applied for a verdict by direction. The trial judge said that the application was premature but that it might be renewed later and that counsel could call and not call evidence as he thought fit. Toohey J said that a practice had been approved by the Full Court, which also gave its endorsement to Hummerstone v Leary and to the passage in Glanville Williams on Joint Torts and Contributory Negligence , at 59, in the following terms: 'In actions against concurrent tortfeasors there is a further rule that if a plaintiff shows that prima facie one if not both of the defendants was negligent, the judge should not at the close of the plaintiff's evidence non suit him against one defendant only, but should hear the whole case before coming to a decision.'


case_outcome: followed

case_title: James v ANZ Banking Group Ltd (No 2) (1985) 9 FCR 448


case_text: In Rasomen v Shell Company of Australia Ltd (1997) 75 FCR 216 at 226C-E the Full Court of this Court said: 'The cases referred to concern civil trials before a judge and jury, and the statements of principles in the judgment must be understood in that context where the trial judge is the arbiter of the law and not of the facts. In civil trials conducted before a judge alone the judge is arbiter both of the law and the facts, and the principles require modification to reflect that different considerations apply. In Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 at 330-331 Windeyer J said: When there is no jury, the proposition " no case" to answer may obviously mean far more than " is there evidence on which a jury could find for the plaintiff? It may mean would you, the judge, on the evidence given find for the plaintiff?" ' 20 And a reference was then given to Jones v Dunkel (101 CLR at 330-331). 21 In my opinion, if I were to approach the case on the basis of deciding whether or not I would find for the fifth respondent as the judge on the evidence given I would become involved in an adjudication of facts arising out of circumstances in which there were common elements and common alleged admissions to which the other respondents participating in the trial were party. I would run the risk of expressing a view which may mean that my continued ability to conduct the trial could be prejudiced by having in one way or another decided a matter of fact. It would involve me reviewing the evidence, analysing it in circumstances where there is a deal of evidence already, not all of it wholly consistent, and forming a view about what parts of it I should accept as being what I was told was: ' ...the applicant's case at its highest... '. 22 Ms Williams addressed that last consideration, in part, by pointing to a passage in the evidence in chief of Dr Lakshmanan in which in effect, he said that he would not have gone into the investment had he not been told that it was a good business. On the evidence thus far at its highest, all of the relevant corporate respondents and the human beings who were directors or associated with them were present during the visit to the factory on 6 March 1999 at that moment, including Mr Spratt, a then director of the fifth respondent.


case_title: Menzies v Australian Iron and Steel Limited (1952) 52 NSWSR 62


case_text: In Rasomen v Shell Company of Australia Ltd (1997) 75 FCR 216 at 226C-E the Full Court of this Court said: 'The cases referred to concern civil trials before a judge and jury, and the statements of principles in the judgment must be understood in that context where the trial judge is the arbiter of the law and not of the facts. In civil trials conducted before a judge alone the judge is arbiter both of the law and the facts, and the principles require modification to reflect that different considerations apply. In Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 at 330-331 Windeyer J said: When there is no jury, the proposition " no case" to answer may obviously mean far more than " is there evidence on which a jury could find for the plaintiff? It may mean would you, the judge, on the evidence given find for the plaintiff?" '


case_text: It was put that silence itself could not be misleading and that, as Hill J had said in Winterton Constructions Pty Ltd v Hambros Australia Limited (1992) 39 FCR 97 at 114: '... it is difficult to see how mere silence could, of itself, constitute conduct which was misleading or deceptive or likely to mislead or deceive.' 8 His Honour, however, went on there to say: 'However, if the circumstances are such that a person is entitled to believe that a relevant matter affecting him or her adversely would, if it existed, be communicated, then the failure to so communicate it may constitute conduct which is misleading or deceptive because the person who ultimately may act to his or her detriment is entitled to infer from the silence that no danger of the detriment existed. Thus, where a duty to speak is imposed, silence may constitute misleading and deceptive conduct. Whether such a duty exists would clearly depend upon all the circumstances of the case.' I agree. 9 Ms Williams said that a lack of the knowledge of the existence of the corporate party with whom Mr Spratt, in this circumstance, was connected, was irrelevant and that indeed, there can be situations where one is dealing, as commonly happens, with a business name that is quite dissimilar to the actual name of the corporate actor. A member of the public dealing with the business name would not have any idea whether or not it was an incorporated company, a partnership or an individual with whom he or she was trading yet it may well be that there is a responsibility able to be made out at the end of the day against the entity which ran whatever business it carried on under or through the business name. 10 Moreover, there is a further difficulty here that Ms Williams submitted and Mr Wood did not suggest to the contrary. At this stage there is no evidence that Mr Bayliss knew anything that he said was incorrect, whereas there is some evidence that representatives of the corporate entities with whom the fifth respondent was associated, namely, Furniture Australia and the fifth respondent itself through Mr Spratt, had knowledge of a different factual position of Furniture Australia from that the subject of the alleged representations.


case_outcome: cited

case_text: It is submitted that having disclosed particular legal advices, the inconsistency principle referred to in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 has the consequence that GSF must disclose all of its communications with its solicitors, Turks, relating to the same subject matter and the same issue, namely the recovery of a debt from Foodlife by giving a statutory demand. Further, the plaintiff submitted that having deployed some of the advice in support of its defence of good faith, it would be unfair for GSF to withhold the balance of the communications, dealing with the same subject matter, from scrutiny.


case_text: GSF submitted that the advices which have been disclosed ought to be regarded as separate and distinct from the instructions that were given, and the communications that took place, in connection with or leading up to the giving of that advice. It was submitted that these other associated documents need not be considered in order to understand of the advice that has been disclosed. Further, it was submitted that documents recording instructions and the like are not to be regarded as documents that were necessary inputs into the advice that has been disclosed. Reliance was placed by GSF on the decision of the Court of Appeal in Victoria in British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197 ; (2002) 7 VR 524. 15 These submissions do not take into account the parallel principle that a party in litigation may expose its legal advice to discovery and production by making it relevant to an issue in the proceeding. In this case, by raising the defence based on s 588FG , GSF has put in issue whether it acted in good faith and without suspecting insolvency when it pursued the recommended course of serving a statutory demand. Having pleaded that matter into relevance, it has effectively exposed its legal advice on that very matter to scrutiny. The position is compounded by the disclosure of some of the advice without disclosing all of the communications that took place between GSF and its solicitors.


case_text: The principle of issue waiver, which has application where a party pleads legal advice into issue and thereby imputedly waives privilege, is a long standing one: see Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347 per Jordan CJ. The principle of issue waiver was recently considered and applied by the Full Court of this Court in Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341 (' Rio Tinto' ). In that case, the Commissioner of Taxation was held to have imputedly waived privilege by filing particulars that referred to advice provided by the Australian Government Solicitor and Counsel: at 363 [74].


case_outcome: applied

case_text: The principle of issue waiver, which has application where a party pleads legal advice into issue and thereby imputedly waives privilege, is a long standing one: see Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347 per Jordan CJ. The principle of issue waiver was recently considered and applied by the Full Court of this Court in Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341 (' Rio Tinto' ). In that case, the Commissioner of Taxation was held to have imputedly waived privilege by filing particulars that referred to advice provided by the Australian Government Solicitor and Counsel: at 363 [74]. 17 In my opinion, whether one approaches the issues by applying the principles of associated material waiver as described in Attorney-General (NT) v Maurice [1986] HCA 80 ; (1986) 161 CLR 475 at 482, 484, 488 and 498-499, or by applying the principles of issue waiver as discussed by the Full Court in the Rio Tinto case, one arrives at the same result. GSF has imputedly waived any legal professional privilege attaching to documents numbered 1 to 44 inclusive in its particulars of documents produced by Turks over which legal professional privilege is claimed. Accordingly, those documents must be produced pursuant to the two subpoenas.


case_outcome: approved

case_text: In my opinion, whether one approaches the issues by applying the principles of associated material waiver as described in Attorney-General (NT) v Maurice [1986] HCA 80 ; (1986) 161 CLR 475 at 482, 484, 488 and 498-499, or by applying the principles of issue waiver as discussed by the Full Court in the Rio Tinto case, one arrives at the same result. GSF has imputedly waived any legal professional privilege attaching to documents numbered 1 to 44 inclusive in its particulars of documents produced by Turks over which legal professional privilege is claimed. Accordingly, those documents must be produced pursuant to the two subpoenas.


case_outcome: discussed

case_text: passage in ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No1) (1990) 27 FCR 460 (" Pont Data" ) at 488 referred to by Gummow J, Hayne J and Heydon J was as follows: [The persons or classes excluded] ... are identified ... by the characteristic that they may not be supplied with the information in question, unless they accept and become bound by the restraint imposed by the [relevant] agreement] ... What distinguishes the class and makes it particular is that its members are objects of an anti-competitive purpose, with which s 4D is concerned. This can be said to permit the identification of the particular persons or classes of person by reference to the operation of the provision. As Gummow J, Hayne J and Heydon J show in footnote 132 in Rural Press (HC), whilst Callinan J in Souths expressed opposition to such an operation of s 4D, Gummow J, with whom McHugh J agreed, did not, and, indeed cited this passage in Souths . Neither Gleeson CJ nor Kirby J in Souths referred to the passage in question from Pont Data . In Pont Data the Full Court said at 476 and 477 about s 4F: s 4F uses the words 'the provision was included in the contract ... for that purpose or for purposes that included or include that purpose'. This indicates that s 4F, in this operation, requires one to look to the purposes of the individuals by whom the provision was included ... ... ...it is therefore appropriate to look at the purposes of the party as a result of whose efforts they were included In Souths , Gleeson CJ said at [18] that it was the subjective purpose of "News and ARL in including the fourteen team ... that is to be determined." His Honour referred with approval to Pont Data at 474-77 as to this point. McHugh J at [41] concurred with the view that it was the subjective purpose of the makers of the provision. In so doing he gave weight to the body of Full Federal Court authority, including implicitly, Pont Data. Gummow J at [62] specifically cited Pont Data at 476 and said that s 4F required examination of the purposes of the individuals by whom the provision was included and noted that the "substantial purpose" test avoids difficulties in discerning the relevant purpose of multiple parties to a contract, arrangement or understanding. Callinan J at [212] referred to the parties' subjective reason for the inclusion of the provision in the contract, arrangement or understanding and in so stating referred specifically to, amongst other cases, Pont Data at 474-77. The Commission's case was that in each case Woolworths and Liquorland were parties to the contract, arrangement or understanding. Each was competitive with the other in relation to the supply of take-away packaged liquor. This satisfied s 4D(1)(a) of the Act. It was also said that each licence applicant was likely to be competitive with Woolworths and Liquorland in the supply of takeaway packaged liquor, but for the provisions in question, for the purposes of s 4D(2) and thereby s 4D(1)(a). The Commission also asserted that the purpose of the provisions in the deeds was to prevent, restrict or limit the supply of takeaway packaged liquor by the licence applicants to one or more of the following classes of persons: (a) customers and potential customers of the licence applicants and (b) customers and potential customers of each Woolworths and Liquorland bottle shop in the vicinity. It was unnecessary to be able to identify the individual members of the class. It was capable of being a "future" class, which was identifiable at the time of the making of the contract, arrangement or understanding. The legitimacy of this element of possible futurity was assisted, it was said, by the terms of s 4D(2) which identifies a future or contingent state of affairs. Section 4D(1) should, it was said, be given a construction conformable with the future, contingent aspects of the section's possible operation in relation to contracts, arrangements or understandings. Importantly, it was submitted that unless the Commission proved the purpose of each of the parties to the deeds it must lose this part of the case. That is so, it was said, because without it the second stage in (b) cannot be undertaken. Pont Data was said to be irrelevant to this case because no party entered the deed under protest or complaint. That being so, it was said, it was necessary to consider the purposes of all the parties to the deed. Turning to the purposes of the parties in including the provision, Woolworths submitted that the Commission confused the purpose of the provision with the purpose of lodging the objection and failed to understand the effect of the Liquor Act on unlicensed persons. At the time of the execution of the deed, the purpose of Woolworths was not to prevent the issue of an unconditional licence, because by that time, to Woolworths' knowledge, each applicant was not seeking an unconditional licence. Further, it was submitted that even if Woolworths' purpose in entering the contract was to prevent the issue of an unconditional licence that was not a purpose of limiting supply to particular persons or classes of persons. This was so because at the time of execution of the deeds the licence applicants had no lawful entitlement to supply the goods to which the provision related. Such an existing, lawful entitlement was, it was said, a necessary precondition for the engagement of s 4D. At the time of the entry into the deeds, the licence applicants were prohibited by the Liquor Act from selling takeaway packaged liquor. Also, as to Palms Village, the provision did not prevent, restrict or limit the supply of any takeaway liquor, because the restrictions were as to stocking, site and configuration of the shop. There was, it was said, no relevant prevention, limitation or restriction on sale to any particular person or class of person. One answer given by Ms Stapleton when being asked about the Dry Dock bottle shop revealed a mundane, but important, distinction that was related to the notion of competition and substitution. The following exchange took place: You don't list the Dry Dock Bottle Shop in paragraph 34 [of your statement] as a main competitor. No. Why is that? It's a very small store. Would you regard it as a competitor at all? Oh, everyone's a competitor, but not a main competitor. There are competitors and there are main competitors. There is competition and there is close competition. The analysis and the description depends on the context. Mr Gordon Mr Michael Gordon was called by the Commission. He was the Managing Director and Chief Executive Officer of "Liquor Marketing Group" ("LMG"). He had been involved for most of his working life since the 1970s in the liquor industry. He and a partner established the Liquorland chain of stores, and later the Mac's Liquor chain, before each was sold, respectively, to Coles and Woolworths. Mr Gordon was articulate, intelligent and helpful. LMG was a hotel liquor buying and marketing group with over one thousand members. I have also dealt with the purpose of each of the parties to the deeds. In each case, Woolworths, on the evidence, was one of the parties as a result of whose efforts the relevant provisions were included. I reject the submission of Woolworths that Pont Data is irrelevant because that case only has relevance where a provision or deed is entered into or undertaken under protest. In each case, the provisions were included as a result of the efforts of Woolworths and Liquorland. In any event, the purposes of the other parties can be inferred as I have. Section 4F does not require that there be one substantial purpose or the substantial purpose, the relevant purpose need only be a substantial purpose. Woolworths submitted that the particularity of the persons or class must arise entirely otherwise than by the characteristic of being excluded from supply. Reliance was placed on what Callinan J said in Souths at [189]. However, as I sought to show earlier, the passage from Pont Data (set out at [58] above) which was criticised by Woolworths has not been disapproved. In my view, the passage referred to at [58] above is an expression of view by a Full Court of this Court (Lockhart, Gummow and von Doussa JJ) in a joint judgment which I should follow. Thus, relevant to the particularity of the class, is the fact that its members are the objects of the purpose in question. It was submitted by Woolworths that the class cannot be "some unidentified potential group of customers". The relevant question is not an isolated proposition capable of independent analysis; rather, the relevant question is whether, on the facts as they present themselves here, a purpose of each relevant provision was to prevent, restrict or limit the supply of goods to particular persons or class of person. The degree of definition and the common characteristics that lead one to the conclusion that a class is "particular" is not capable of being expressed otherwise than by application of the language chosen by Parliament to the facts and purpose in question. To seek to do so is to embark on a process of deconstructing, or glossing, of Parliament's words with the almost inevitable (and certainly impermissible) substitution of a different word or phrase for that chosen by Parliament. That one person's view that the definition of a class to which the purpose in question was directed is sufficiently "particular" to fall within the section is open to debate is an inevitable consequence of the indeterminate frame of reference contained within the adjective "particular". It is necessary to turn to the episodes here and assess whether s 4D (and so, s 45(2)(a)(i) and (b)(i)) is satisfied. Ettamogah


case_text: definition is not an exact physical exercise to identify a physical feature of the world; nor is it the enquiry after the nature of some form of essential existence. Rather, it is the recognition and use of an economic tool or instrumental concept related to market power, constraints on power and the competitive process which is best adapted to analyse the asserted anti-competitive conduct. See generally, Breyer S, "Five Questions about Australian Anti-Trust Law" (1977) 51 ALJ 28 at 33-4; Singapore Airlines Ltd v Taprobane Tours WA Pty Ltd (1991) 33 FCR 158 per French J at 175 (with whom Spender and O'Loughlin JJ agreed see 159 and 185 respectively); Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1987) 17 FCR 211 at 218-9 (" Queensland Wire (FC)"); Brunt M, Economic Essays on Australian and New Zealand Competition Law, Ch 5 "Market Definition Issues in Australian and New Zealand Trade Practices Litigation (1991)" especially at 203-214, 218-219 and 230-37; Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 328-29; Dowling v Dalgety Australia Ltd (1992) 34 FCR 109 at 132 ; Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040 ; (2001) 110 FCR 157 at [57] and [58]; Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236 at [114] (" Rural Press (FC)"); and Australian Competition and Consumer Commission v Australian Safeway Stores Ltd [2003] FCAFC 149 ; (2003) 129 FCR 339 at [193] and [194].


case_text: referred to a strategic plan for Woolworths for liquor for the years 2003 to 2007. (See Exhibit WW, tab 157.) This document looked at the Australian retail packaged liquor market and set out national sales broken down by state. No doubt for some purposes of strategy and overall assessment, Woolworths looked at the liquor industry from a national perspective. It was a national organisation. Nevertheless, within that national and state analysis the document incorporated, for the purposes of discussion, important considerations about customer profile that conformed with the material referred to by the Commission: 2.3.1 Customer Profile General Convenience (strongest attribute by far!) Price Knowledgeable and Friendly Staff Large Product Range Easy Parking Opening Hours High Value Customers High value customers represent 40% of liquor purchases but over 90% of liquor revenue and profit Convenience is the most important factor in format choice They plan what they will buy in advance & stick to familiar products They purchase over 70% of their liquor in one store One methodological aspect of the Leading Edge survey was said to detract from the utility of the results. In the analysis of the research which led to the conclusion that "convenience is about twice as important as any other customer need", there were differential weightings given for the reasons, depending on the importance of the reason and whether it was the main or other store used. It was said to be important for the SSNIP test that customers shop at a number of liquor outlets even without a price increase. I do not see why this should be so. I do not see how this submission substantially eliminates the weight to be given to this material. Woolworths made a legitimate point about Exhibit VV tab 99 at p 47-00492. This was used as the basis for the representation at [459(d)] above. Woolworths pointed out a fact relevant to the consideration of these representations and how they are to be assessed with the expert evidence . This was that the top 10% most sensitive customers were excluded. These are people most likely to travel in the face of a SSNIP. Debate took place on the meaning of the word "substantially". Great care needs to be taken in debate about the content of such words. In s 46 "substantial" means "a considerable or large degree of such power", when qualifying market power: Eastern Express Ltd v General Newspapers (1992) 35 FCR 43 at 63; and Universal Music at [131]-[132]. In relation to the word "substantial" in s 4F(a)(ii) and (b)(ii) Heerey J said the following in Monroe Topple at [97]: Did the proscribed purpose, if it existed, loom large among the objects the corporation sought to achieve?"


case_text: do not see how the evidence is sufficient for me to conclude that it was likely (in the sense of there being a real chance or possibility: Tillmans Butcheries Pty Ltd v Australian Meat Industry Employees Union (1979) 42 FLR 331 at 346-48; News Ltd v Australian Rugby Football league Ltd (1996) 64 FCR 410 at 564-65; Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia [2002] FCAFC 197 ; (2002) 122 FCR 110 at [111] ; and Universal Music at [247]) that Ettamogah would be successful in the licence application to sell takeaway liquor other than themed liquor. Debate took place on the meaning of the word "substantially". Great care needs to be taken in debate about the content of such words. In s 46 "substantial" means "a considerable or large degree of such power", when qualifying market power: Eastern Express Ltd v General Newspapers (1992) 35 FCR 43 at 63; and Universal Music at [131]-[132]. In relation to the word "substantial" in s 4F(a)(ii) and (b)(ii) Heerey J said the following in Monroe Topple at [97]: Did the proscribed purpose, if it existed, loom large among the objects the corporation sought to achieve?"


case_text: do not see how the evidence is sufficient for me to conclude that it was likely (in the sense of there being a real chance or possibility: Tillmans Butcheries Pty Ltd v Australian Meat Industry Employees Union (1979) 42 FLR 331 at 346-48; News Ltd v Australian Rugby Football league Ltd (1996) 64 FCR 410 at 564-65; Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia [2002] FCAFC 197 ; (2002) 122 FCR 110 at [111] ; and Universal Music at [247]) that Ettamogah would be successful in the licence application to sell takeaway liquor other than themed liquor.


case_text: J, Hayne J and Heydon J also emphasised that there is no requirement of "aiming at" or "targeting" anyone, to the extent that it might be seen as carrying notions of animus or intended harm: Rural Press (HC) at [70] citing Gummow J in News Ltd v South Sydney District Rugby League Football Club Ltd [2003] HCA 45 ; (2003) 215 CLR 563 ( "Souths" ) at [76]-[79]. Dealing with the facts before them, Gummow J, Hayne J and Heydon J said the following at [71]: The purpose of the provision in this case was "directed towards" the readers and advertisers in the Mannum area because it was a purpose of maintaining the market power of the Rural Press parties in that area by limiting the supply of services to the readers and advertisers through causing the circulation of the River News to their advantage to cease. The readers and advertisers were objects, "on, or about whom" that purpose operated. The particularity of purpose in Rural Press as found by the trial judge was as follows (set out at 216 CLR at [57]): preventing or restricting or limiting the supply of services to the particular class or classes of persons, being those in the Mannum area (or in that area and extending to a [line] about 40 km north of Mannum) who could otherwise receive the information and news in the River News or who could otherwise advertise in the River News or take advantage of advertising in the River News . Gummow J, Hayne J and Heydon J said the following at [87] and [88] as to the adequacy of this particularity: The purpose found by the trial judge is entirely consistent with the evidence, particularly the internal records of and the conduct of the Rural Press parties. In the circumstances it is sufficient to say that the trial judge adequately defined a class: even though the identity of all of its members at any one time might not be readily ascertainable, s 4D does not require that. Even if s 4D does require that, it would be possible to draw up a list of advertisers who had used the River News , and that would be a sufficient class to render the provision an exclusionary provision. It would also be possible to draw up a list, though perhaps an incomplete list, of readers of the River News . The Commission's contentions cannot be dismissed by reason of issues on which such limited argument was offered. The same is true of the question, which had a faint presence in argument, of whether it is erroneous to define a particular class by the fact of its exclusion from supply or acquisition. In ASX Operations Pty Ltd v Pont Data Australia Pty Ltd [No 1] there is a passage which some have alleged to rest on an error of this kind. In this case no argument was directed in this Court to the question; the Full Federal Court came to no view about it; and News Ltd v South Sydney District Rugby League Football Club Ltd did not overrule the case in that respect and only one member of this Court criticised it. In any event, to define a particular class by reference to its geographical location is not to define it by the fact of its exclusion from supply or acquisition, because it is identified at the time of the arrangement and indeed identifiable before that time. [footnotes omitted]


case_title: Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1987) 17 FCR 211


case_text: were sought and provided in relation to the suburban areas pleaded. In the provision of those particulars a measure of flexibility was sought to be retained by the Commission. The relevant areas were particularised as follows: The Arncliffe area Paragraph B1.16 defines "the Arncliffe area" as Arncliffe or the close vicinity of Arncliffe. The Arncliffe area is depicted on maps 315 and 316 in the seventh edition of the Sydway Greater Sydney and Blue Mountains Street Directory published by Sydway Publishing Pty Ltd, July 2001. The geographic bounds of the Arncliffe area cannot be stated exactly, nor is it necessary to be stated exactly (see Queensland Wire Industries Pty Ltd v BHP Co Ltd [1989] HCA 6 ; (1989) 167 CLR 177 at 195-196, Australian Meat Holdings Pty Ltd v TPC (1989) ATPR 40-932 at 50,011 & 50,097 , Davids Holdings Pty Ltd v Attorney General (1994) ATPR 41-304 at 42,091, ACCC v Rural Press (2001) ATPR 41-804 at 42,736, para [103], ACCC v Australian Safeway Stores Pty Ltd [2003] FCAFC 149 at [293] - [297] ). The City of Rockdale area The City of Rockdale area is depicted on maps 315, 316, 335 and 336 in the seventh edition of the Sydways Greater Sydney and Blue Mountains Street Directory published by Sydway Publishing Pty Ltd, July 2001. Otherwise, the Applicant repeats the third paragraph of its response to 24(a), (b). (The third paragraph of the response to 24(a) and (b) was the third paragraph above under the heading "the Arncliffe area".) The Campbelltown area Paragraph B2.9 defines "the Campbelltown area" as Campbelltown or the close vicinity of Campbelltown. The Campbelltown area is depicted on maps 368 and 369 in the seventh edition of the Sydway Greater Sydney and Blue Mountains Street Directory published by Sydway Publishing Pty Ltd, July 2001. Otherwise, the Applicant repeats the third paragraph of its response to 24(a), (b). The Tweed Heads area Paragraph B4.9 defines "the Tweed Heads area" as Tweed Heads or the close vicinity of Tweed Heads. The Tweed Heads area is depicted on page 447 in the fourteenth edition of the UBD New South Wales CountryLink Street & Travel Directory published by Universal Press Pty Ltd, 2002. Otherwise, the Applicant repeats the third paragraph of its response to 24(a), (b). The references in the third paragraph of the response to 24(a) and (b) made clear the Commission's intention to maintain flexibility at the boundary of the market. Deane J in Queensland Wire Industry Proprietary Limited v The Broken Hill Proprietary Company Limited [1989] HCA 6 ; (1988) 167 CLR 177 at 195-96 spoke of the outer limits of markets, including their geographical confines, to be "blurred". Sheppard J in Australian Meat Holdings Pty Ltd v Trade Practices Commission [1989]) ATPR 40-932 at 50,097, referred to what Deane J had said in Queensland Wire and also spoke of the arbitrary exercise of the drawing of any line to define the geographic market and there always being a "fuzziness" about geographic definition of the market. See also Davids Holdings Pty Ltd v Attorney-General of the Commonwealth (1994) 49 FCR 211. I have sought at [429] above to encapsulate something which has been said by scholars and courts about the nature of the process of market definition. Market definition is to be approached by beginning with the problem at hand and asking what market identification best assists the assessment of the conduct and its asserted anti-competitive attributes. See generally, Norman N and Williams P "The Analysis of Market and Competition and the Trade Practices Act : Towards the Resolution of Some Hitherto Unresolved Issues" (1983) 11 Australian Business Law Review 399 at 400-401; Queensland Wire (FC) at 218-219; Queensland Wire Industries Pty Ltd v The Broken Hill Proprietary Company Ltd [1989] HCA 6 ; (1988) 167 CLR 177 at 195 (" Queensland Wire (HC)"); Brunt op cit p 236. This approach has been followed in many cases: for some, see Corones SG, Competition Law in Australia (3 rd Ed) p 42 ftnt 15. As the Trade Practices Tribunal (of which Professor Brunt was a member) said in Re Media Council of Australia [1996] ATPR 41-497 at 42,262: [t]he choice of market definition, ie the specification of relevant markets in the particular case, must depend upon the issues for determination. For the Tribunal's purposes it is the identification of a market or markets that best enables it to evaluate the likely effects of authorized conduct, whether the subject of past authorisation or possible future authorisation. This is not the abrogation of principled analysis in favour of the impugned conduct determining the market. Rather, it is to recognise the consequence of market definition being a tool for analysis and not a physical thing, or essence, which can be identified in a manner divorced from the relevant context. An analysis of market power in Australia in relation to the liquor industry for the purposes of merger evaluation under s 50 of the Act may not turn upon individual analyses of the degree of competition in suburban or regional areas as small as Arncliffe, Campbelltown or Tweed Heads. However, the assessment of the purposes of Woolworths (through Messrs Smith and Meagher) in the placement of the relevant clauses into deeds with prospective local shopkeepers in order to prevent competitive sales from new licences detracting from the sales and hence profitability of their own local suburban liquor shops provides another framework of analysis entirely. The facts and perspectives of analysis in the two circumstances are different. It is the market that best enables evaluation of Woolworths' conduct that is relevant. Thus, the identification of the market as the correct analytical tool or instrumental concept to assess the conduct in question will be assisted by the recognition of the close competition and factors dealing with constraints that may be seen to be affected or advanced by the conduct in question. This relationship between the conduct the subject of analysis, and the correct market for its analysis takes place in the context where value judgments must be made in an economy where markets overlap and where the geographical boundaries (for the reasons given earlier) are likely to be blurred: cf Queensland Wire (HC) at 195-96 per Deane J.


case_text: this process of identifying the correct analytical tool or instrumental concept of market definition by which to assess Woolworths' conduct and purposes in this case, there is significant assistance in recalling the seminal expression of view of the Tribunal (of which Professor Brunt was a member) in Re Queensland Co-operative Milling Association Ltd; Re Defiance Holdings Ltd (1976) 25 FLR 169 ("QCMA") at 190 (a passage approved by the High Court in Boral at [133] per Gleeson CJ and Callinan J, in this respect agreed with by Gaudron J, Gummow J and Hayne J) : We take the concept of a market to be basically a very simple idea. A market is the area of close competition between firms or, putting it a little differently, the field of rivalry between them. (If there is no close competition there is of course a monopolistic market.) Within the bounds of a market there is substitution--substitution between one product and another, and between one source of supply and another, in response to changing prices. So a market is the field of actual and potential transactions between buyers and sellers amongst whom there can be strong substitution, at least in the long run, if given a sufficient price incentive. Let us suppose that the price of one supplier goes up. Then on the demand side buyers may switch their patronage from this firm's product to another, or from this geographic source of supply to another. As well, on the supply side, sellers can adjust their production plans, substituting one product for another in their output mix, or substituting one geographic source of supply for another. Whether such substitution is feasible or likely depends ultimately on customer attitudes, technology, distance, and cost and price incentives. It is the possibilities of such substitution which set the limits upon a firm's ability to "give less and charge more". Accordingly, in determining the outer boundaries of the market we ask a quite simple but fundamental question: 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 could we expect a relatively high demand or supply response to price change, i.e. a relatively high cross-elasticity of demand or cross-elasticity of supply? At least two elements of this passage are to be steadily borne in mind in identifying the markets here. First, it is the area of close competition. The relative and evaluative judgment as to the degree of closeness of competition relevant to the assessment of the conduct is important. Here, the question is the assessment of the purpose of Woolworths and Liquorland in undertaking conduct directed at local competitors. The degree of closeness of competition in the local area may be seen to be different from, or more important than, the degree of closeness of competition from a broader geographic perspective. In other words, merely because there is what can be said to be close competition on price across the Sydney conurbation for retail liquor, does not gainsay a local market, being a field or area of even closer competition between sellers in suburban areas. Secondly, the notion of giving less and charging more and thus constraint on activity is central to the analysis. This, as with the notion of close competition, can occur at different levels of commercial behaviour and organisation.


case_text: applicants for the licences, as new entrants into the market, were denied the freedom to expand or reconfigure their businesses better to meet market requirements and competitive offerings or to sell the unrestricted licence to someone better placed to exploit it. Either would have seen the process of competition work rather than be stifled. Thus, it was said that competition was "nipped in the bud": Trade Practices Commission v CSR Ltd (1991) 13 ATPR 41-076 at p 52, 155; and Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236 at [129] . The case of Woolworths directed attention to the precise terms of the case pleaded against it and the precise effect of the construction it placed on s 4D of the Act. A full discussion of those issues is better left to a point at which the facts of each episode are fully explored. Briefly, however, it was contended that the case of the Commission rested on a number of flaws. First, it gave inadequate weight to the context of the practical operation, and day-to-day practice under the regime of the Liquor Act . The particular aspect of this inadequacy was said to be the failure to appreciate that objection on the needs ground was commonly taken by licence holders of all descriptions against all new applications. It was said to be a commonplace event that applicants would seek the grant of an off-licence retail, subject to conditions which reflected the business sought to be carried on, and no wider. Secondly, the Commission's case confused or conflated the purposes of Woolworths in making the objection and in entering the deeds. The two, it was said, were distinct only the latter being the pleaded purpose. This distinction was said to be important and one based on the evidence of Messrs Meagher and Smith, the two relevant officers of Woolworths. They gave evidence that had there been no deeds agreed, the applications would have been fought, and, they believed, won. Thus, it was submitted that whilst the purpose of making the objection might be said to be "anti-competitive" (being directed to preventing a new, competitive, or potentially competitive, licence), the purpose of the impugned deed was to record the terms of the settlement of litigation which they believed would be won, if fought. Their purposes should be seen in that light; and if that is done, their purposes must be seen as other than found in ss 45(2) and 4D. Market definition is not an exact physical exercise to identify a physical feature of the world; nor is it the enquiry after the nature of some form of essential existence. Rather, it is the recognition and use of an economic tool or instrumental concept related to market power, constraints on power and the competitive process which is best adapted to analyse the asserted anti-competitive conduct. See generally, Breyer S, "Five Questions about Australian Anti-Trust Law" (1977) 51 ALJ 28 at 33-4; Singapore Airlines Ltd v Taprobane Tours WA Pty Ltd (1991) 33 FCR 158 per French J at 175 (with whom Spender and O'Loughlin JJ agreed see 159 and 185 respectively); Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1987) 17 FCR 211 at 218-9 (" Queensland Wire (FC)"); Brunt M, Economic Essays on Australian and New Zealand Competition Law, Ch 5 "Market Definition Issues in Australian and New Zealand Trade Practices Litigation (1991)" especially at 203-214, 218-219 and 230-37; Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 328-29; Dowling v Dalgety Australia Ltd (1992) 34 FCR 109 at 132 ; Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040 ; (2001) 110 FCR 157 at [57] and [58]; Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236 at [114] (" Rural Press (FC)"); and Australian Competition and Consumer Commission v Australian Safeway Stores Ltd [2003] FCAFC 149 ; (2003) 129 FCR 339 at [193] and [194].


case_text: turning to the contentions of the parties as to the construction of s 4D a number of considerations concerning s 4D expressed by the High Court and the Full Court of this Court should be noted. In Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53 (" Rural Press (HC)") Gleeson CJ and Callinan J emphasised the need for the requisite degree of particularity of the object or objects of the provision, saying at [6]: If attention were not paid to the compound nature of an exclusionary provision, and the requirement of particularity of its object or objects, there is a danger that s 4D would be given an operation that would greatly reduce the statutory significance of lessening competition, in relation to agreements between competitors generally. Contracts, arrangements or understandings between competitors commonly involve some form of prevention, restriction or limitation of supply or acquisition of goods or services. If two hairdressers in a suburban main street were to have an understanding that one would provide services to men, and one would provide services to women, it may be unlikely that their understanding would involve a substantial lessening of competition in a market. It would be surprising if it were held, nevertheless, to contravene the Act. To the extent to which it had an anti-competitive purpose, that purpose would not be "directed toward" particular persons or classes of persons. [Footnotes omitted] Whilst Gleeson CJ and Callinan J agreed with Gummow, Hayne and Heydon JJ that there was sufficient particularity in that case, their Honours said the following at [7] and [8] about the purpose of preventing , restricting or limiting supply or acquisition: We agree with Gummow, Hayne and Heydon JJ that there was sufficient particularity in the present case, but we can think of other cases in which it would be absent, notwithstanding the existence of a purpose of preventing, restricting, or limiting supply or acquisition. If it were not so, the references to particular persons or classes of persons would be redundant. ... In its original form, the proscribed purpose was of preventing, restricting or limiting supply to or acquisition from particular persons. The words "or classes of persons" were added in 1986, following some decisions that were thought to reveal an undue narrowness in the legislation in its original form. Those words were clearly intended to widen the provision, but not to change its entire character. The proscribed purpose must still be one that is directed toward particular persons or classes of persons. Parliament did not delete the word "particular" and substitute the word "any". Nor did it remove all reference to persons as objects of the proscribed purpose. The legislative history, as well as the text, tends strongly against a reading of the section which requires only that a provision of a contract, arrangement or understanding has the purpose of preventing, restricting or limiting, in any way, supply or acquisition. Supply or acquisition will always be to or from persons. Ordinary principles of construction require that the references to particular persons or classes of persons be given work to do; they are not mere drafting verbosity. A court construing a provision in an Act "must strive to give meaning to every word of the provision". A court will seek to avoid a construction of a statute that renders some of its language otiose. Here, that consideration is powerfully reinforced by the legislative history, which shows that the reference to particular persons was originally an essential feature of s 4D, and that the addition of the reference to classes was intended to expand it, not to make it superfluous. [footnotes omitted] The relevant facts of Rural Press were that senior officers of two companies publishing country newspapers agreed that one company, which had extended its circulation and advertising into the other's traditional catchment area, would withdraw from that area in exchange for the second company not, itself, extending its coverage into the first company's traditional area. There was found to be sufficient particularity of purpose for the engagement of s 4D. The persons who were deprived of the opportunity of acquisition of services from the first company were readers and advertisers in the Mannum area of South Australia. What follows should be read with the recognition that there was a tolerably clear geographical boundary within which one found the readers and advertisers in question. Gummow J, Hayne J and Heydon J said at [67]: The Full Federal Court's reasoning concentrates too narrowly on the purpose of preventing Waikerie Printing selling papers to readers and space to advertisers, and not enough on the correlative -- the purpose of preventing readers buying papers and advertisers buying space from Waikerie Printing. The relationship between a buyer and a seller is not merely symbiotic. The link is inextricable. A supply by sale is an acquisition by purchase. There cannot be a seller without a buyer. There cannot be a supplier without an acquirer. There cannot be supply without acquisition. If one's purpose is to prevent the supply of services, an inevitable part of that purpose is to prevent the acquisition of those services by the person or persons to be supplied. Thus when the Full Federal Court accepted the trial judge's finding that the purpose of Rural Press and Bridge was to maintain their market power in Murray Bridge by preserving absence of competition in that market, it was accepting that their purpose was to maintain their market power in Murray Bridge by ensuring that the Standard would be the only paper and that readers and advertisers would not enjoy the services of the River News . The purpose of maintaining market power was indistinguishable from the purpose of preventing supply of certain services to, and acquisition of those services by, readers and advertisers. Acquisition of those services by readers and advertisers from the River News was inconsistent with the prevention of supply by the River News . It was not possible for the Rural Press parties consistently to say both that they had a purpose of preventing the River News from supplying services to readers and advertisers and also that they did not have a purpose of preventing readers and advertisers from acquiring services from the River News . "You could not have one without the other, however much you protested that you did not really want the other." This can be said to permit the identification of the particular persons or classes of person by reference to the operation of the provision. As Gummow J, Hayne J and Heydon J show in footnote 132 in Rural Press (HC), whilst Callinan J in Souths expressed opposition to such an operation of s 4D, Gummow J, with whom McHugh J agreed, did not, and, indeed cited this passage in Souths . Neither Gleeson CJ nor Kirby J in Souths referred to the passage in question from Pont Data . It can be seen from the judgment of Gummow J, Hayne J and Heydon J as well as that of Gleeson CJ and Callinan J that there was a sufficient degree of particularity in Rural Press (HC) for the operation of s 4D. It was not a particularity derived from an a priori process of reasoning or definition. It was founded on a distinct geographical area and, to some degree, the ability to identify people within that locality who fitted the description of readers of, or advertisers in, a newspaper that had been, and was otherwise intended to be, sold in that locality. It is now clear from the High Court's decision in Souths that the purpose referred to in s 4D (notwithstanding that it is the purpose of the provision ) is a subjective purpose requiring an examination of the subjective purposes of the parties to the relevant contract, arrangement or understanding.


case_text: recognition of the place of expert economic assistance in the manner described by Professor Brunt means that often the point of the expert opinion is to give a form or construct to the facts. It may appear to be an argument put by the witness. So it is. The discourse is not connected with the ascertainment of an identifiable truth in which task the Court is to be helped by the views of the expert in a specialised field. It is not, for example, the process of ascertaining the nature of a chemical reaction or the existence of conditions suitable for combustion. The view or argument as to the proper way to analyse facts in the world from the perspective of a social science is essentially argumentative. That does not mean intellectual rigour, honesty and a willingness to engage in discourse are not required. But it does mean that it may be an empty or meaningless statement to say that an expert should be criticised in this field for "putting an argument" as opposed to "giving an opinion". In this respect, regard should be had to the comments of French J in Sampi v State of Western Australia [2005] FCA 777 at [792] - [793] where his Honour said in dealing with the anthropological evidence in native title cases: Aspects of the reports offered what might properly be called argumentative or taxonomical conclusions or inferences relevant to the claimed determination of native title. To call them such is not necessarily to denigrate them. The judgment of the Court in determining the application is in part evaluative. The Federal Court Rules recognise that there are aspects of so called expert testimony which are argumentative and can be treated as submission. Order 10 r 1(2)(j) provides: 'Without prejudice to the generality of sub-rule (1) or (1A) the Court may ... (j) in proceedings in which a party seeks to rely on the opinion of a person involving a subject in which the person has specialist qualifications, direct that all or part of such opinion be received by way of submission in such manner and form as the Court may think fit, whether or not the opinion would be admissible as evidence.' The rule of court was developed in part to respond to concerns about the way in which rules of evidence might lead to the exclusion of helpful economic testimony in competition law cases. Economic experts typically offer opinions about questions such as market definition relevant to the application of particular provisions of the Trade Practices Act 1974 (Cth). Such opinion is by way of characterisation of primary evidence and is essentially argumentative in character albeit the characterisation is informed by relevant expertise. An anthropologist, as in the present case, may offer an opinion on whether a particular group of people constitute a distinct or discrete society of persons. The nature of the taxonomical exercise is conceptually similar to that undertaken by the economist. There is potentially some tension between the recognition that expert testimony may have the character of submission and the Practice Direction relating to expert witnesses which contemplates acceptance by the expert of a duty to the court in providing opinion evidence and which rejects the proposition that the expert is simply a 'hired gun' for the party who calls him or her. That tension and associated difficulty in the way of accepting expert testimony as evidence can arise where the opinion offered becomes advocacy for a particular outcome. For the above reasons, I conclude that the Commission is entitled to relief arising from contraventions of the Act by Woolworths of s 45(2)(a)(i) and (b)(i) in respect of the Ettamogah and Global Beer episodes and of s 45(2)(a)(ii) and (b)(ii) in respect of all four episodes. It is appropriate to require the Commission to formulate the orders it seeks to reflect my reasons. Prima facie , it would appear to me that the Commission is entitled to declarations of contravention. Whether injunctive relief is appropriate, in the light of the changes to the Liquor Act , may be debatable. The question of penalty also arises. The parties will need to give some attention to a regime for any further evidence (and whether that is appropriate) and a hearing on that issue. An appropriately framed order under Order 29 of the Federal Court Rules should be considered. The question of the timing of the penalty hearing should be addressed by the parties. Subject to argument, I would not be in favour of delaying that until the outcome of any appeal. I will leave these orders to be addressed by the parties and the matter can be discussed on a later occasion. Some orders, do however, need to be made now. I will mark Exhibit AA4 and Administrative Exhibit A14 and make the rulings in relation to Administrative Exhibits A13 and A14 that I have indicated. Also, a significant body of evidence, mainly documentary evidence, was admitted subject to an order under s 50 of the Federal Court of Australia Act 1976 based on commercial confidentiality. I do not propose to vary those orders unless requested to do so. However, if any person, whether Woolworths or Liquorland, or anyone else, seeks to have any part of my reasons not made available to the public, that person will have to persuade me, with evidence, that the administration of justice requires that course, in circumstances where the relevant evidence remains the subject of a s 50 order. To preserve the positions, I will limit, until further order, the publication of some of my reasons on market definition. One paragraph [728] will be distilled from Woolworths and Liquorland material. I will make it confidential to both parties. It appears to be benign, but if I should further disaggregate it, I should be told by Woolworths and Liquorland.


case_text: definition is not an exact physical exercise to identify a physical feature of the world; nor is it the enquiry after the nature of some form of essential existence. Rather, it is the recognition and use of an economic tool or instrumental concept related to market power, constraints on power and the competitive process which is best adapted to analyse the asserted anti-competitive conduct. See generally, Breyer S, "Five Questions about Australian Anti-Trust Law" (1977) 51 ALJ 28 at 33-4; Singapore Airlines Ltd v Taprobane Tours WA Pty Ltd (1991) 33 FCR 158 per French J at 175 (with whom Spender and O'Loughlin JJ agreed see 159 and 185 respectively); Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1987) 17 FCR 211 at 218-9 (" Queensland Wire (FC)"); Brunt M, Economic Essays on Australian and New Zealand Competition Law, Ch 5 "Market Definition Issues in Australian and New Zealand Trade Practices Litigation (1991)" especially at 203-214, 218-219 and 230-37; Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 328-29; Dowling v Dalgety Australia Ltd (1992) 34 FCR 109 at 132 ; Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040 ; (2001) 110 FCR 157 at [57] and [58]; Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236 at [114] (" Rural Press (FC)"); and Australian Competition and Consumer Commission v Australian Safeway Stores Ltd [2003] FCAFC 149 ; (2003) 129 FCR 339 at [193] and [194]. Put another way, the purpose of Woolworths in behaving in a particular manner may be relevant in the conclusion about the market. Though the field of activity here was common ground (the sale of packaged takeaway liquor for off-premises consumption) the following passage from Neale The Antitrust Laws of the United States of America (2 nd Ed, 1970) at 21, quoted in Heydon JD, Trade Practices Law (Law Book Co Subscription Service) at [3.245] and cited in Singapore Airlines at 178, is relevant (though by no means determinative): The court will take as the market, for the purposes of deciding cases, just that market which the firm itself takes for its field of activity: if a firm shows an intent to exclude competition from that field it will be assumed that the field sufficiently describes a market for otherwise what would be the point of the effort to exclude? If, in the real commercial world, the firm in question takes the trouble to be concerned about restricting a new entrant's capacity, because of the potential effect on the sales and profits of its nearby local outlets (and not because of any concern about the potential effect on sales and profits of other, more widely situated, outlets), that may assist in a conclusion as to the importance of the closeness of competition and the concern as to additional constraints in that local area. The reality of the concern of the firm in question may assist in the illumination of the correct framework to analyse that conduct: cf Rural Press (HC) at 45. Woolworths submitted that whilst the purposive approach requires the relevant market to be defined by reference to the conduct sought to be impugned, the alleged purpose is not a relevant consideration in determining the market in which that purpose is to be assessed. I do not accept that submission. The impugned purpose in connection with the provisions of the relevant deed is the conduct to be assessed. The very fact that the firm behaved with that purpose may tell one something of the market. Further, it is the market analysis or tool best adapted to consider that conduct which is to be chosen. It is appropriate at this point to set out the principles of market definition that appear to be agreed between the experts. Whilst, of course, the views of Dr Walker and Dr Smith in this regard are not determinative or binding on me, the agreement of two such experienced and learned economists is highly persuasive. the common ground between Dr Walker and Dr Smith


case_text: content of the word "substantially" in s 45(2)(a)(ii) and (b)(ii) has been discussed in a number of cases, to some of which I referred at [86]-[89] above. It is clear that "substantially" is used in the sense of meaningful or relevant to the competitive process, and that it is necessary that the purpose be to achieve an effect of that kind. The discussion in Rural Press (HC) at [41] footnote 67 may indicate that there is a layer of meaning of "considerable" to be added to the notion of being meaningful or relevant to the competitive process. However, it is difficult to understand what purpose of the Act would be advanced by a conclusion that the purpose or effect of a provision was to lessen, prevent or hinder the competitive process, in a way which was meaningful and relevant to the competitive process, but was not sufficiently "considerable" to warrant relief. Once one recognises that the purpose must be to do something meaningful or relevant to the competitive process, adjectives, adverbs or like phrases connoting quantity, such as "considerable", "more than nominal", "more than insignificant", can be seen to be subsumed in the evaluative and functional analysis in deciding whether a purpose or conduct was of a character deserving of the intervention of the Court, in the light of the purposes of the Act, as being meaningful or relevant to the competitive process. I am not able, with respect, to express the matter more clearly than French J did in Stirling Harbour Services Pty Ltd v Bunbury Port Authority (2000) ATPR 41-752 at [114]: The concept of "substantially lessening" competition is evaluative. There is only limited assistance to be derived from replacing the words with other phrases. The term is not defined in the Act and has not received extensive judicial exposition Eastern Express Pty Ltd v General Newspapers Pty Ltd (1991) ATPR 41-128 at 52,905 (Wilcox J); Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 44 ALR 557 at 564 (Lockhart J); Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331 at 348, the latter on the meaning of "substantial" in the collocation "substantial loss or damage" under the old s 45D. In my opinion the phrase sets a standard for judicial intervention in respect of the classes of anti competitive conduct to which it applies. It requires, before that intervention can be invoked, that there be a purpose, effect or likely effect of the impugned conduct on competition which is substantial in the sense of meaningful or relevant to the competitive process. There is, of course, a certain circularity in these attempts at exposition. It could be said that a substantial lessening of competition describes a purpose or outcome of conduct which is deserving of the intervention of the Court in the protection of the competitive process according to law. So to say, is to identify the functional character of the statutory standard.


case_text: do not see how the evidence is sufficient for me to conclude that it was likely (in the sense of there being a real chance or possibility: Tillmans Butcheries Pty Ltd v Australian Meat Industry Employees Union (1979) 42 FLR 331 at 346-48; News Ltd v Australian Rugby Football league Ltd (1996) 64 FCR 410 at 564-65; Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia [2002] FCAFC 197 ; (2002) 122 FCR 110 at [111] ; and Universal Music at [247]) that Ettamogah would be successful in the licence application to sell takeaway liquor other than themed liquor. The content of the word "substantially" in s 45(2)(a)(ii) and (b)(ii) has been discussed in a number of cases, to some of which I referred at [86]-[89] above. It is clear that "substantially" is used in the sense of meaningful or relevant to the competitive process, and that it is necessary that the purpose be to achieve an effect of that kind. The discussion in Rural Press (HC) at [41] footnote 67 may indicate that there is a layer of meaning of "considerable" to be added to the notion of being meaningful or relevant to the competitive process. However, it is difficult to understand what purpose of the Act would be advanced by a conclusion that the purpose or effect of a provision was to lessen, prevent or hinder the competitive process, in a way which was meaningful and relevant to the competitive process, but was not sufficiently "considerable" to warrant relief. Once one recognises that the purpose must be to do something meaningful or relevant to the competitive process, adjectives, adverbs or like phrases connoting quantity, such as "considerable", "more than nominal", "more than insignificant", can be seen to be subsumed in the evaluative and functional analysis in deciding whether a purpose or conduct was of a character deserving of the intervention of the Court, in the light of the purposes of the Act, as being meaningful or relevant to the competitive process. I am not able, with respect, to express the matter more clearly than French J did in Stirling Harbour Services Pty Ltd v Bunbury Port Authority (2000) ATPR 41-752 at [114]: The concept of "substantially lessening" competition is evaluative. There is only limited assistance to be derived from replacing the words with other phrases. The term is not defined in the Act and has not received extensive judicial exposition Eastern Express Pty Ltd v General Newspapers Pty Ltd (1991) ATPR 41-128 at 52,905 (Wilcox J); Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 44 ALR 557 at 564 (Lockhart J); Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331 at 348, the latter on the meaning of "substantial" in the collocation "substantial loss or damage" under the old s 45D. In my opinion the phrase sets a standard for judicial intervention in respect of the classes of anti competitive conduct to which it applies. It requires, before that intervention can be invoked, that there be a purpose, effect or likely effect of the impugned conduct on competition which is substantial in the sense of meaningful or relevant to the competitive process. There is, of course, a certain circularity in these attempts at exposition. It could be said that a substantial lessening of competition describes a purpose or outcome of conduct which is deserving of the intervention of the Court in the protection of the competitive process according to law. So to say, is to identify the functional character of the statutory standard.


case_text: Commission stressed the difference between purpose and effect and submitted that a person may have the relevant purpose even if the effect cannot be achieved: Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193 ; (2003) 131 FCR 529 at [249] . Here, it was said that the direct evidence of the Woolworths witnesses, Mr Meagher and Mr Smith, make out this part of the case (together with the relevant market analysis). Part of that submission, as will be clear when I deal with the evidence, was the submission that the purpose of filing the objection cannot be divorced from the purpose of the relevant provisions in the contracts. Woolworths emphasised the substantive nature of the required purpose substantially to lessen competition, and distinguished this from intentional harm to competitors or protection of its own business: cf Boral Besser Masonry Ltd v Australian Competition and Consumer Commission [2003] HCA 5 ; (2003) 215 CLR 374 and Universal Music at 591. Leaving aside the submissions on the market, to which I will come, Woolworths submitted that there had been an inadequate foundation in cross-examination of Messrs Meagher and Smith and that it was not open to conclude on the evidence that either had the relevant purpose in respect of the relevant provisions or in respect of the giving effect to the relevant provisions. It was submitted that the cross-examiner did not squarely put relevant issues to Mr Smith and Mr Meagher, in particular the purposes of any provision in the deeds to prevent, limit or restrict supply of the sale of liquor to any persons, whether they be actual or potential customers of Woolworths or of any other liquor seller and to substantially lessen competition in the relevant market. I disagree. Mr Yates cross-examined Mr Smith and Mr Meagher fairly about what their intentions and purposes were in the transactions. Cross-examination took place in the language of human discourse. It was not necessary, although it could have been done, to put the exact words of the Act. It is for the Court to characterise the purpose from the evidence given. See generally Rural Press (HC) at [48] and Rural Press (FC) at [163]. The Ettamogah group of companies operated what were referred to as "themed" hotels and restaurants using the work of a cartoonist and artist, Mr Ken Maynard. The group had a number of licensed premises in Western Australia, New South Wales and Queensland. Mr Leigh O'Brien was the controller of the group and of the relevant company concerned with the relevant events (Ettamogah Pub (Campbelltown) Pty Ltd). He was an experienced and competent businessman, who had undertaken objections under the Liquor Act to the licence applications of others in connection with one or more of the group's licensed establishments. I do not see how the evidence is sufficient for me to conclude that it was likely (in the sense of there being a real chance or possibility: Tillmans Butcheries Pty Ltd v Australian Meat Industry Employees Union (1979) 42 FLR 331 at 346-48; News Ltd v Australian Rugby Football league Ltd (1996) 64 FCR 410 at 564-65; Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia [2002] FCAFC 197 ; (2002) 122 FCR 110 at [111] ; and Universal Music at [247]) that Ettamogah would be successful in the licence application to sell takeaway liquor other than themed liquor. Debate took place on the meaning of the word "substantially". Great care needs to be taken in debate about the content of such words. In s 46 "substantial" means "a considerable or large degree of such power", when qualifying market power: Eastern Express Ltd v General Newspapers (1992) 35 FCR 43 at 63; and Universal Music at [131]-[132]. In relation to the word "substantial" in s 4F(a)(ii) and (b)(ii) Heerey J said the following in Monroe Topple at [97]: Did the proscribed purpose, if it existed, loom large among the objects the corporation sought to achieve?"


case_text: notion of not warranting further investigation has assumed importance in a particular class of case. Where the dispute relates to a simple question of construction that can be decided following a short hearing and there is no factual issue to be resolved, the Court will decide the question and, if the construction is against the company, the dispute will not be classified as "genuine": see Delnorth Pty Ltd v State Bank of New South Wales (1995) 17 ACSR 379 at 384-5 ( Delnorth ); Lifestyle Retirement Projects No 2 Pty Ltd v Parisi Homes Pty Ltd [2005] NSWSC 705 at [16] - [17] ; BBX Holdings Ltd v American Home Assurance Co [2007] NSWSC 549 at [15] - [17] . In the same vein, in the earlier case of Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 , McLelland CJ in Eq said that the expression "genuine dispute" connotes "a plausible contention requiring investigation " (at 787 my emphasis).


case_text: notion of not warranting further investigation has assumed importance in a particular class of case. Where the dispute relates to a simple question of construction that can be decided following a short hearing and there is no factual issue to be resolved, the Court will decide the question and, if the construction is against the company, the dispute will not be classified as "genuine": see Delnorth Pty Ltd v State Bank of New South Wales (1995) 17 ACSR 379 at 384-5 ( Delnorth ); Lifestyle Retirement Projects No 2 Pty Ltd v Parisi Homes Pty Ltd [2005] NSWSC 705 at [16] - [17] ; BBX Holdings Ltd v American Home Assurance Co [2007] NSWSC 549 at [15] - [17] . In the same vein, in the earlier case of Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 , McLelland CJ in Eq said that the expression "genuine dispute" connotes "a plausible contention requiring investigation " (at 787 my emphasis). Counsel for Lodge submitted that it sufficed that Lodge raised an arguable construction. I accept that counsel for Lodge did raise a construction that was arguable, at least on the face of the provision, but the cases cited above show that this is not the end of the matter. The following oft cited passage from the judgment of Cohen J in Delnorth (at 384-385) is pertinent: Section 459H(1) refers to the court finding that there is a genuine dispute. The parties have argued this case on the issue of whether the proper construction of the agreement and the facts results in the plaintiff owing money to the defendant. The facts were not in dispute and there was thus no question of whose evidence would be accepted on a final hearing. Under the previous legislation, when there was a claim that there was a bona fide dispute on substantial grounds as to the debt claimed, the court could decide that dispute if it arose from a question of law or was of short compass. See, for example, Offshore Oil NL v Acron pacific Ltd (1984) 2 ACLC 8. I consider that under the provisions of the Corporations Law, the same approach can be taken. Although questions of disputed fact will not be decided on an application to set aside a statutory demand, the issue of whether there is a genuine dispute can be resolved on that application where the question arises on a short point of law or the construction of documents or agreed facts. In Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 ; 12 ACLC 669 , McLelland CJ in Eq said that the expression "genuine dispute" connotes a plausible contention requiring investigation. Where no further investigation is required, I consider that the court on an application under s 459G may decide as a matter of law if there is a genuine dispute. The occasions when this is possible may be few, but in my view this is one of them.


case_title: Lifestyle Retirement Projects No 2 Pty Ltd v Parisi Homes Pty Ltd [2005] NSWSC 705


case_text: concept of a "genuine dispute" has been discussed in the cases. The dispute must be bona fide and must truly exist in fact, and the grounds for alleging the existence of the dispute must be real and not spurious, hypothetical, illusory or misconceived: see, for example, Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd [1997] FCA 681 ; (1997) 76 FCR 452 at 464. In Solarite Air Conditioning Pty Ltd v York International Australia Pty Ltd [2002] NSWSC 411 , Barrett J said (at [23]), after reviewing the authorities, that the task faced by a company challenging a statutory demand on the "genuine dispute" ground is not a difficult or demanding one. His Honour added: The company will fail in that task only if it is found upon the hearing of its s 459G application that the contentions upon which it seeks to rely in mounting its challenge are so devoid of substance that no further investigation is warranted. Once the company shows that even one issue has a sufficient degree of cogency to be arguable, a finding of genuine dispute must follow. The court does not engage in any form of balancing exercise between the strengths of competing contentions. If it sees any factor that, on rational grounds, indicates an arguable case on the part of the company, it must find that a genuine dispute exists, even where any case apparently available to be advanced against the company seems stronger.


case_title: Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd [1997] FCA 681 ; (1997) 76 FCR 452


case_outcome: distinguished

case_text: for Lodge referred to Symbion Medical Centre Operations Pty Ltd v Thomco (No 2113) Pty Ltd [2009] SASC 65 ( Symbion ). In Symbion the Full Court of the Supreme Court of South Australia allowed an appeal from a Master's decision dismissing an application to set aside a statutory demand. The decision is distinguishable. Unlike the three New South Wales cases to which I have referred and the present case, Symbion involved far more than the construction of a simple provision. It involved heads of agreement which, at least according to one party's submission, were to be construed against the background of "the commercial context including the later conduct of the parties and their agents" (per Gray J at [10]). The Court referred to issues as to the admissibility of post-contract conduct of the parties and the question whether the heads of agreement represented a concluded contract at all. In the circumstances of the present case, I should decide the question of construction. Counsel for Lodge submits, first, that by the time of the November 2008 tranche, ETC was no longer "a new client introduced to [Lodge] by [Mr Pegum]" and that the defendants were entitled to the Introduction Fee only on the first tranche because it was only in respect of that transaction that ETC could be described as "a new client introduced to [Lodge] by [Mr Pegum]". Secondly, he submits that the third sentence of the provision makes the payment of any introduction fee at all dependent on the matters mentioned in that sentence. Thirdly, he submits that the percentage payable is to be determined at Lodge's discretion and that Lodge should be taken to have exercised its discretion against paying any percentage in respect of the second tranche. Counsel for the defendants submits that once ETC was properly described in May 2008 as "a new client introduced to [Lodge] by [Mr Pegum]" it continued to satisfy that description, with the consequence that the defendants were entitled to the Introduction Fee on each transaction entered into by Lodge and ETC not just the first such transaction. Secondly, he submits that the amount of the Introduction Fee was a minimum of 10% and that the third sentence relates only to anything over and above the 10%. Thirdly, he submits that the same argument applies to the determination of the percentage at Lodge's discretion, also referred to in the third sentence. On its face, the first sentence is ambiguous as the following considerations show.


case_title: Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785


case_title: Prenn v Simmonds [1971] 1 WLR 1381

case_text: speaking, it is not permissible to take pre-contract negotiations into account in the construction of contracts: see, for example, Prenn v Simmonds [1971] 1 WLR 1381. However, there are exceptions to the general rule, one of which is that evidence is admissible to show what both parties intended a particular ambiguous term used in the contract to mean: see, for example, Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 at 348-350, 352-353 per Mason J; ProForce Recruit Ltd v Rugby Group Ltd [2008] 1 All ER 569 (Comm) at [83], [86], [88]; Yoshimoto v Canterbury Golf International Ltd [2001] 1 NZLR 523 ; and see Corbin on Contracts (rev'd ed, 1998) vol 5 § 24.8. Sometimes cases of this kind are called "private dictionary" cases: the parties have agreed that a word or expression in the express terms of their contract is to have (or not to have) a certain meaning. The reasons that support the general rule excluding evidence of antecedent negotiations (see, for example, Prenn v Simmonds , above, at 1384-1385; and Carter, Peden and Tolhurst, Contract Law in Australia (5 th ed, 2007) at [12-11]) do not apply here. The evidence of the change made to the draft on 24 November 2006 at Mr Pegum's request and agreed to by Lodge was clear, undisputed, and admitted without objection. The word "each" as used in the contractual provision means "the first and each subsequent". I return to the word "new". In the light of the now revealed meaning of "each", the word "new" can be seen to add nothing to the word "introduced". It has been included, admittedly tautologously, to emphasise that the client must not have been a client of Lodge prior to the introduction, not that the client must not have been a client of Lodge prior to the transaction in question. It is common enough to speak of introducing a new client, customer, supplier, etc without embarrassment over the tautology involved.


case_text: speaking, it is not permissible to take pre-contract negotiations into account in the construction of contracts: see, for example, Prenn v Simmonds [1971] 1 WLR 1381. However, there are exceptions to the general rule, one of which is that evidence is admissible to show what both parties intended a particular ambiguous term used in the contract to mean: see, for example, Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 at 348-350, 352-353 per Mason J; ProForce Recruit Ltd v Rugby Group Ltd [2008] 1 All ER 569 (Comm) at [83], [86], [88]; Yoshimoto v Canterbury Golf International Ltd [2001] 1 NZLR 523 ; and see Corbin on Contracts (rev'd ed, 1998) vol 5 § 24.8. Sometimes cases of this kind are called "private dictionary" cases: the parties have agreed that a word or expression in the express terms of their contract is to have (or not to have) a certain meaning.


case_title: Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337


case_text: if the proposed Ground were to be pursued, there would be a need to resolve as a factual issue the question as to what was and what was not put to the now Appellant during the course of the Tribunal hearing. A submission advanced on behalf of the Respondent Minister by his Senior Counsel as to prejudice should the Ground be entertained is not to be dismissed lightly. Prejudice is claimed by reason of a lost " opportunity to call evidence to rebut the proposed allegations about what issues were raised and how they were raised at the Tribunal's three hearings ". It is appropriate to refuse leave to amend where " it may be unfair to the respondent, who may have been able to call evidence at first instance to rebut the proposed allegations, if they had been made at that stage ": Applicant A376 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 222 at [2] per Tamberlin, Madgwick and Hely JJ. Leave to amend should also be rejected on this further basis. Even if leave were granted, the proposed Ground would be rejected. The Appeal is to be dismissed. The written outline of submissions as filed on behalf of the Respondent Minister seeks costs. The Appellant accepted that if the appeal was to be dismissed, there was no reason why costs should not follow the event. Although the Minister may not have prevailed in respect to all of the contentions sought to be advanced in his Notice of Contention , he has substantially prevailed. The appeal is thus to be dismissed with costs.


case_title: Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 , 221 CLR 1

case_text: to a particular issue in the reasons for decision of a Tribunal may provide a basis upon which a conclusion may be reached that that issue was in fact addressed and considered during the course of a Tribunal hearing. But the difficulty in drawing an inference that an issue was not addressed because of the absence of any reference to that issue in the reasons for decision of a Tribunal is a difficulty that has been adverted to by the Full Court in NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241. When addressing a submission that an inference should be drawn that the Tribunal did not raise an issue with the appellant, Beaumont, Merkel and Hely JJ there observed: [21] We cannot accept this submission, for several reasons. For one thing, as the respondent submitted, the appellant's case is premised upon an assumption (that was also made by the learned Magistrate, albeit on a tentative basis), namely, that the Tribunal had not raised the issue of the authenticity of certain documents with the appellant at the hearing. However, his Honour did not make a finding in relation to this matter. Driver FM observed that this 'appeared' to be the case 'from the record of the [Tribunal] decision'. On the evidence before his Honour, it was not open to him to have made a finding that this issue had not been canvassed. His Honour had no transcript. (As mentioned, the tape is before us and we refer to it below.) The appellant had not given any evidence (in affidavit form or orally) to the effect that this issue had not been raised. There was simply no basis upon which his Honour could properly have made this finding. His reasons should not be read as if he did so. In the absence of evidence about what occurred at the hearing, the appelant [ sic ] has no sufficient evidential basis for the grounds he seeks to raise, thus he has not, in our opinion, established that the Tribunal did not comply with the rules of natural justice. Their Honours were obviously directing attention to the facts then before the Court. But the caution expressed as to the dangers in too readily drawing inferences from an incomplete factual foundation is to be heeded. The decision in NAOA has since been followed: NBBO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1132 at [31] per Conti J. The Full Court, it has also been said, " simply made its comments based on the particular facts of that case ": SZJYA v Minister for Immigration and Citizenship (No 2) [2008] FCA 911 at [32] , 102 ALD 598 at 606 per Rares J. In an appropriate case, inferences may be drawn from an account given by a Tribunal member: e.g. Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 at [28] to [30] [2004] HCA 62 ; , 221 CLR 1 at 10 to 11 per McHugh, Gummow, Callinan and Heydon JJ. Whether an inference is or is not available must obviously depend upon the facts and circumstances of each individual case.


case_title: Black v Minister for Immigration and Citizenship [2007] FCAFC 189 , 99 ALD 1

case_text: for the Appellant resisted such a conclusion and submitted that the Tribunal's reasons did not disclose any finding as to " purpose ". He accepted that the Tribunal's reasons were not to be scrutinised in an " over-zealous " manner and with an " eye keenly attuned to the perception of error ": Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at 271 to 272, see also Kirby J at 291; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [25] , [2007] HCA 26 ; 96 ALD 1 at 9 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; Black v Minister for Immigration and Citizenship [2007] FCAFC 189 at [36] , [2007] FCAFC 189 ; 99 ALD 1 at 9.


case_text: for the Appellant accepts what must inevitably be common ground as between the parties. It is thus accepted that a party is normally bound by the manner in which it has previously conducted its case: Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68. Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ there observed at 71: It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. Applied: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105 at [18], 190 ALR 543 at 548 to 549 per Hill, O'Loughlin and Tamberlin JJ; SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372 at [33] , 104 ALD 22 at 30. Similarly, in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 , Gibbs CJ, Wilson, Brennan and Dawson JJ observed at 7: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.


case_title: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105, 190 ALR 543


case_title: Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68


case_text: provision, it has repeatedly been acknowledged, " suffers from a lack of clarity ": SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 , 170 FCR 515. Spender, Edmonds and Tracey JJ there usefully summarised as follows some of the less contentious matters involved in the construction of that provision: [10] In a series of cases decided under s 91R(3) , it has been common ground that the subsection suffers from a lack of clarity. Before turning to the difficulties to which the drafting gives rise, it will be convenient to mention some uncontentious matters relating to the construction of the subsection. First, the subsection is cast in imperative terms: it obliges a decision maker to disregard conduct in Australia by an applicant for a protection visa subject to the proviso in paragraph (b). Secondly, the stipulation that a decision maker must "disregard" an applicant's conduct in Australia requires that such conduct not be brought into consideration when determining whether the applicant has a well-founded fear of being persecuted for a Convention reason. Thirdly, although the Explanatory Memorandum and the second reading speech both indicate that s 91R(3) of the Act was introduced to deal with sur place claims, it is not, in terms, so confined. Conduct in Australia which is undertaken in order to attract the adverse attention of the authorities in the applicant's country of origin, would support a sur place claim. Other types of conduct may not. Section 91R(3) obliges decision makers to disregard "any" conduct by the applicant in Australia. That requirement is qualified by paragraph (b) which provides scope for an applicant to satisfy the decision maker that he or she has engaged in the relevant conduct "otherwise than for the purpose of strengthening the person's claims to be a refugee ...". Conduct in Australia which attracts adverse attention from a foreign government for Convention related reasons would strengthen a person's claim to be a refugee. So too, however, would conduct in Australia which, in an evidentiary sense, rendered it more likely that an applicant had engaged in conduct in his or her home country which led to persecution in that country. Both types of conduct may be engaged in in Australia. ... Decisions of this Court were the catalyst for the introduction of s 91R(3). Those decisions held that a person could become a refugee as a result of conduct, deliberately pursued in Australia, to attract the adverse attention of the authorities in his or her country of origin: [2008] FCAFC 105 at [24] . Special leave to appeal, it should be noted, has been granted: Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO [2008] HCATrans 404.


case_text: for the Appellant resisted such a conclusion and submitted that the Tribunal's reasons did not disclose any finding as to " purpose ". He accepted that the Tribunal's reasons were not to be scrutinised in an " over-zealous " manner and with an " eye keenly attuned to the perception of error ": Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at 271 to 272, see also Kirby J at 291; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [25] , [2007] HCA 26 ; 96 ALD 1 at 9 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; Black v Minister for Immigration and Citizenship [2007] FCAFC 189 at [36] , [2007] FCAFC 189 ; 99 ALD 1 at 9. The present facts would also appear to stand in contrast to those in SZBEL where Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ observed: [3] ... At no stage did the Tribunal challenge what the appellant said, express any reaction to what he said, or invite him to amplify any of the three particular aspects of the account he had given in his statutory declaration, and repeated in his evidence, which the Tribunal later found to be 'implausible'... [2006] HCA 63 at [3] , [2006] HCA 63 ; 228 CLR 152 at 155. Contrary to the case sought to be advanced on behalf of the Appellant that he was denied the opportunity guaranteed by s 425 by not having the question as to the genuineness of his faith specifically put to him, upon a fair reading of the Tribunal's reasons (cf Liang, supra) it emerges that the Tribunal did " challenge " the Appellant's account. The reasons for decision of the Tribunal thus recount the following exchange: [96] ... I also mentioned to the applicant that it was of concern to the Tribunal that he did not tell his agent his real name or that he was in fear of religious persecution. It was also of concern to the Tribunal that he did not attend church until 15 November 2000, even though he arrived in Australia in June 1999. I mentioned to the applicant that a chronology of his applications indicated that he had exhausted all lines of application by August 2000. The applicant stated that he did not know his application had been rejected. I mentioned to the applicant that it was difficult for the Tribunal to understand why he did not attend the church before November 2000 given his claims of being a committed Christian. I mentioned to the applicant that he told the Tribunal that the reason he attended an underground church in China was because he valued the community spirit which was not available at the official church. I mentioned to the applicant that if that was the case it was difficult to see why he did not seek that out as soon as he arrived in Australia where he could do so freely. The applicant stated that he had no Christian friends so he worshiped [ sic ] on his own. [97] I discussed with the applicant section 91R(3) of the Act. The applicant stated that he did not go to church with the intention of enhancing his refugee claims.


case_text: " object of the section must be to provide procedural fairness to the applicant by alerting the applicant to material that the Tribunal considers to be adverse to the applicant's case and affording the applicant the opportunity to comment upon it ": SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 at [50] , [2005] HCA 24 ; 228 CLR 294 at 312 per McHugh J. Subject to the qualifications and exceptions set forth, " the evident object of s 424A is that ... fairness to the applicant is to be provided by alerting the applicant to adverse material and affording an opportunity to comment upon it ": [2005] HCA 24 at [118] , [2005] HCA 24 ; 228 CLR 294 at 331 per Gummow J. It was made clear in SAAP that the Tribunal commits jurisdictional error if it fails to comply with the requirements of s 424A. The purpose sought to be achieved by s 424A , it has also been recognised, is twofold: Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138. Branson, Finn and Bennett JJ there observed: [31] The obligation imposed on the Tribunal by s 424A relevantly had two aspects; first, to give the respondent particulars of any information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review (s 424A(1)(a)) and secondly, to ensure, as far as reasonably practicable, that the respondent understood why the information was relevant to the review (s 424A(1)(b)).