case_text: The private interests of the opposite parties are not affected if the documents are handed over. This is because the implied undertaking will bind any person to whom the documents are given ( Distillers Co (Bio-Chemicals) Ltd v Times Newspapers Ltd [1975] 1 QB 613; Sofilas v Cable Sands (WA) Pty Ltd (1993) 9 WAR 196, Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316) at least once he is aware that the documents have been obtained by way of discovery (P Matthews & H Malek, Disclosure (2 nd ed, 2000) at [13.09]).


case_outcome: cited

case_title: Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316


case_text: Early cases, such as Richardson v Hastings (1884) 7 Beav 354 and Reynolds v Godlee (1858) 4 K & J 88, state that discovery may be refused unless the party gives an undertaking that the documents would not be used for any purpose other than the action then proceeding. The principle was stated in Bray on Discovery (1 st ed, 1885) at 238: "A party who has obtained access to his adversary's documents under an order for production has no right to make their contents public or communicate them to any stranger to the suit ... nor to use them or copies of them for any collateral object ... If necessary an undertaking to that effect will be made a condition of granting an order ...". An express undertaking is not now required. It is to be implied in every case: Alterskye v Scott [1948] 1 All ER 469. The modern statement of the rule is to be found in Harman v Secretary of State, Home Department [1983] 1 AC 280.


case_title: Reynolds v Godlee (1858) 4 K & J 88


case_title: Richardson v Hastings (1884) 7 Beav 354


case_title: Sofilas v Cable Sands (WA) Pty Ltd (1993) 9 WAR 196


case_outcome: referred to

case_text: The Corporation invoked the powers conferred in the Court by s 44(1) of the Administrative Appeals Tribunal Act and s 5 of the Administrative Decisions (Judicial Review) Act . As Ms Barry advanced no submissions to the Court, and it is not clear beyond argument that the Court's jurisdiction under s 44(1) of the Administrative Appeals Tribunal Act was properly invoked (see Comcare v Etheridge [2006] FCAFC 27 ; (2006) 227 ALR 75), I prefer to make orders under the Administrative Decisions (Judicial Review) Act . 30 The orders of the Court will therefore be: 1. The decision, including the order as to costs, of the Administrative Appeals Tribunal given on 2 June 2006 in Sydney concerning matter N2005/1246 be set aside with effect from 2 June 2006. 2. The matter be remitted to the Administrative Appeals Tribunal to be heard and decided again. 3. The first respondent pay the applicant's reasonable costs of its application to the Court. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate: Dated: 15 December 2006 Counsel for the Applicant: Mr A Robertson SC and Mr G Elliott Solicitor for the Applicant: Forners Solicitors Solicitor for the First Respondent: Slater & Gordon Counsel for the Second Respondent: The Second Respondent filed a submitting appearance Date of Hearing: 6 December 2006 Date of Judgment: 15 December 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1751.html


case_text: In Engler v Commissioner of Taxation [2002] FCA 226 , delivered on 8 March 2002, French J described the proceedings in the following way (at [3] [5]): 'On 18 June 2001, Claudia Charlotte Engler and Jeffrey Kenneth Gates commenced proceedings in this Court against the Commissioner of Taxation. On the basis of affidavits accompanying their application they seek declaratory relief that various notices and amended notices of assessment issued to them under the ITAA are void, these being: 1. Amended Notices of Assessment issued to Engler on 24 September 1998 relating to the financial years ended 30 June 1992, 1993, 1994, 1995 and 1996 and a Notice of Assessment issued on the same date for the year ended 30 June 1997. 2. A Notice of Amended Assessment issued to Gates on 15 September 1998 and relating to the financial year ended 30 June 1992. They also seek declaratory relief that "any Nil Tax Advices issued by the Commissioner to Gates on or about 15 September 1998 are void". Orders apparently by way of injunction are sought that the Commissioner "be permanently stopped from reviewing the Applicants on any issue that has been reviewed in the past again" and "from reviewing the Applicants' taxation affairs from the year ended 30 June 1997 and backwards". A declaration is sought that a Notice of Assessment issued by the Commissioner on or about 6 November 1996 was a proper assessment in accordance with the ITAA and is proof that reviews of the applicants' taxation affairs commenced by the Commissioner on or about 7 April 1995 were concluded prior to 6 November 1996 in accordance with the ITAA. Other orders are sought that the Commissioner, if reviewing the applicants in the future, must adhere to the principles outlined in the Taxpayers' Charter and in the law and that from the date of the filing of the application the applicants and any other business or entity in which they become involved should be classed as restricted access taxpayers. A claim is also made for unspecified "losses and damages and costs".' 19 In the course of deciding that the application should be struck out, French J made the following observations (at [54]): 'Contentions that certain of the assessments are void for having been issued for an improper purpose may enliven the jurisdiction of the Court under s 39B of the Judiciary Act 1903 (Cth). These contentions are to be found in pars 9, 11, 13 and 15 of the application. There is however, on my reading of the points of claim, little exposed in the way of facts which would support a case of improper purpose or want of bona fides. Paragraphs 18 and 19, as the Commissioner contends, do not specify the alleged breach of natural justice. As to pars 20 and 21, the broad brush assertions in the points of claim as to the various species of misconduct attributed to the Commissioner and his officers do not disclose facts sufficient to ground the tort of misfeasance in public office or negligence. That is not to say that on the facts apparent from the chronology and some of the matters raised in the points of claim the applicants may not have had cause to complain about the way in which and the efficiency with which their affairs have been handled in the ATO. But that of itself is not enough to establish a cause of action.' 20 French J gave the applicants leave to file an amended application.


case_text: On 6 May 2003, French J made an order that the statement of claim filed on 5 March 2003 be struck out: Engler v Federal Commissioner of Taxation (No 2) (2003) 52 ATR 642. He also gave liberty to amend the statement of claim if it be the applicants' contention that the notices of amended assessment were issued other than in good faith. In the course of his reasons, French J said (at 643 [1]): 'The application they originally filed was struck out on 8 March 2002. They have now filed an amended application and a statement of claim pursuant to the orders which I made then. The amended application and statement of claim have been prepared with the assistance of pro bono counsel who has since ceased to act for them. The respondent moves to strike out that statement of claim or for an order that the application be dismissed or permanently stayed.'


case_text: An application for leave to appeal from the order made by French J on 6 May 2003 was dismissed by Lee J on 21 October 2003: Engler v Federal Commissioner of Taxation (2003) 54 ATR 211.


case_text: The applicants filed a further statement of claim. The Commissioner moved the Court for an order that that statement of claim be struck out and that the proceedings be dismissed generally. That motion came on for hearing before French J and, on 23 December 2003, his Honour made an order that the application be struck out and that the applicants pay the respondent's costs of the proceedings: Engler v Federal Commissioner of Taxation (No 3) (2003) 54 ATR 617. French J noted that Ms Engler and Mr Gates had had great difficulty in formulating a viable statement of claim, despite the fact that they had had assistance from three different legal practitioners, two of whom acted on a pro bono basis. He made the following observations (at 626 [34] and 627 [36]): 'The outline of the statement of claim which I have just essayed indicates no basis beyond bold assertion for the contentions of bad faith action on the part of the respondent. The statement of claim is, like its predecessors, a welter of confused and irrelevant allegations which, as the respondent submits, not properly engaged the jurisdiction of the Court. The analysis of paragraph [59] exemplifies the ways in which the applicants will allege fraud on foundations which cannot logically support such an allegation. The statement of claim cannot stand and the point has now been reached where I am not prepared to allow this proceeding to continue any further. The applicants have demonstrated that they are unable to frame in a responsible and careful way a cause of action which is amenable to determination by the Court. They have had the assistance of two pro bono lawyers, one of whom is Queens Counsel. They have now had a number of opportunities to formulate a viable statement of claim.' 24 To return to the present proceedings, Mr Gates had the opportunity to make a submission about the proposed hearing dates, but he did not do so. As I have said, he did not respond to the letter from the officer of the Registry dated 5 May 2006. He was given adequate notice of the dates fixed for the hearing, but he did not appear at the hearing. 25 Mr Gates' amended statement of claim clearly does not comply with the rules as to pleadings and, in fact, it is not possible to say that it discloses a cause of action. All of this has occurred in the context of a long history involving previous proceedings in this Court in which Mr Gates was given every opportunity to formulate his claim, but failed to do so.


case_outcome: affirmed

case_text: is an appeal from an order made in the Federal Magistrates Court dismissing the appellants' application pursuant to s 39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (the Migration Act ) for judicial review of a decision of the Migration Review Tribunal (the Tribunal) dated 7 May 2009 and handed down on 8 May 2009: Li Tian & Ors v Minister for Immigration & Anor [2009] FMCA 930. The appellants are all citizens of the Peoples Republic of China. The first appellant is the wife of the fourth appellant and the mother of the second and third appellants. The second, third and fourth appellants' visa applications are dependent upon the success of the first appellant's visa application. I shall call the first appellant simply the appellant. The appellant has entered Australia on a number of occasions since 17 July 2000, sometimes entering Australia on a Business Long Stay visa and sometimes on a Business Short Stay visa which are two subclasses of a Class UC visa. Relevantly, the appellant entered Australia on 2 April 2003 on a Business Long Stay visa on the basis that she would be employed by a standard business sponsor employer, Adcom Strategies Pty Ltd as a sales and marketing manager.


case_text: is considerable authority which deals with the issue of the appropriate order to make as to the costs of proceedings where the proceedings are either sought to be discontinued or do not proceed to a final hearing. I have been referred to a number of those authorities, in particular J T Stratford & Son Ltd v Lindley (No 2) [1969] 3 All ER 1122; Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194; O'Keeffe Nominees Pty Limited v BP Australia Limited (No 2) (1995) 55 FCR 591; Re Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622; and One.Tel Limited v Commissioner of Taxation [2000] FCA 270 ; (2000) 101 FCR 548. It is a trite proposition that the power to order costs by the Court is in the Court's discretion: see s 43 of the Federal Court of Australia Act 1976 (Cth). In Australian Securities Commission v Aust-Home Investments Limited (supra) at 201, Hill J, having referred to a number of cases including Stratford v Lindley (No 2) (supra), set out a number of propositions which he considered were supported by the authorities. In particular, as to the fifth proposition to which he referred, Hill J said: "Where the proceedings terminate after interlocutory relief has been granted, the Court may take into account the fact that interlocutory relief has been granted: cf Re Asiatic Electric Co Pty Ltd [1973] 1 NSWLR 603 at 606, a case which, however depended upon the specific wording of the statute under consideration." His Honour then went on to say: "Where interlocutory relief has been granted, that fact carries no implication as to the ultimate merits of the case but does ordinarily suggest that the Court granting interlocutory relief has accepted or found that there is an arguable issue to be tried between the parties and that the balance of convenience favours the grant of that relief." In Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (supra), McHugh J held that there should be no order for the costs of the proceeding. His Honour said at 624-625: "In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order. In an appropriate case, a Court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The Court cannot try a hypothetical action between the parties. ... Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. ... If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases." (footnotes omitted)


case_outcome: applied

case_title: Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194


case_outcome: discussed

case_text: is considerable authority which deals with the issue of the appropriate order to make as to the costs of proceedings where the proceedings are either sought to be discontinued or do not proceed to a final hearing. I have been referred to a number of those authorities, in particular J T Stratford & Son Ltd v Lindley (No 2) [1969] 3 All ER 1122; Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194; O'Keeffe Nominees Pty Limited v BP Australia Limited (No 2) (1995) 55 FCR 591; Re Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622; and One.Tel Limited v Commissioner of Taxation [2000] FCA 270 ; (2000) 101 FCR 548.


case_title: Re Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622


case_title: One.Tel Limited v Commissioner of Taxation [2000] FCA 270 ; (2000) 101 FCR 548


case_title: Briffa v Hay (1997) 75 FCR 428

case_text: The Tribunal is required by s 37(6) of the Act to affirm a relevant decision of a Trustee if it is satisfied that the decision was fair and reasonable in the circumstances. Relevant principles as to fairness and reasonableness in this context include the following: • the words "unfair" and "unreasonable" as used in the Act are of broad content and purpose, and not to be read restrictively: National Mutual Life v Campbell 99 FCR at 571 • whether a decision, or its operation in relation to a person, is fair and reasonable in the circumstances involves a value judgment, the making of which is committed to the Tribunal: National Mutual Life v Campbell 99 FCR at 570-571 • where the Tribunal forms the view that the decision was fair and reasonable it must affirm the decision even though the Tribunal might not itself have made the same decision ( National Mutual Life Association of Australia v Scollary [2002] FCA 695 at [37] , Colonial Mutual Life Assurance Society Ltd v Brayley [2002] FCA 1333 at [31] ) • a decision under review pursuant to s 37 may be one which so involves elements of fact, degree, opinion or value judgement that different minds can legitimately differ in reaching a decision. That is why the Tribunal's task is not to ask itself whether such a decision was the correct or preferable decision, nor to engage in ascertaining generally the rights of the parties, nor to engage in some form of judicial review of the decision of the trustee or insurer. Rather it is to form a view, from the perspective of the trustee, as to whether the decision was - recognising the overriding framework given by the rules of the fund - unfair or unreasonable (Allsop J in Crocker at ATR 366, 367, the Full Court in Cameron 130 FCR at 133) • as explained by Branson J in Brayley [2002] FCA 1333 at [32] , if the Tribunal is not satisfied that the decision was fair and reasonable in the circumstances, ss 37(1) and (2) require the Tribunal put itself in the position of the trustee and, in an appropriate case, the insurer and other relevant decision-maker ( National Mutual Life v Campbell 99 FCR at 570; Briffa v Hay (1997) 75 FCR 428 at 443-445). From that position or positions the Tribunal must determine whether, consistently with: (a) the general law; (b) the governing rules of the fund concerned; and (c) if a contract of insurance between the insurer and a trustee is involved, the terms of the contract, the unfairness or unreasonableness that the Tribunal has identified in respect of the trustee's decision can be addressed in whole or in part • a decision of a trustee or insurer as varied by the Tribunal, or a decision of the Tribunal in substitution for a decision of the trustee or insurer, is for all purposes (other than the making of a complaint about the decision) taken to be a decision of the trustee or insurer and, on the coming into operation of the determination by the Tribunal, unless the Tribunal otherwise orders, has effect on and from the day on which the original decision had effect: s 41(3) • the Tribunal is obliged to consider the evidence before it by way of hearing de novo : Seafarers' Retirement Fund Pty Ltd v Oppenhuis [1999] FCA 1683 ; (1999) 94 FCR 594 at 598-599. Indeed in reviewing a decision of a Trustee of a fund, the Tribunal has all the powers, obligations and discretions that are conferred on the trustee: s 37(1)(a). In exercising its powers of review, the Tribunal is not restricted to the documents which were before the Trustee, nor is it confined to the manner in which the applicant addressed the subject matter: Commonwealth Superannuation Scheme Board v Dexte r [2004] FCA 1434 ; (2004) 142 FCR 151 at 166-167, Crocker 48 ATR 387-388, Oppenhuis 94 FCR at 599, HEST Australia Ltd v Sykley [2005] FCA 1381 ; (2005) 147 FCR 248 at 259.


case_text: In summary, the second respondent submitted: • in exercising its powers under s 37(1) of the Act , the Tribunal stands in the shoes of the decision-maker: National Mutual Life Association of Australia Ltd v Campbell [2000] FCA 852 ; (2000) 99 FCR 562 • the task of the Tribunal is that it must first consider whether the decision complained of was fair and reasonable in the circumstances. The words "fair" and "reasonable" are of broad content and purpose: Flexiplan Australia Ltd v Pankhurst [2001] FCA 1535 • the Tribunal noted that the issue to be determined was whether the decision of the Trustee to refuse payment of the TPD benefit, on the grounds that the applicant's total and permanent disability was caused by a condition related to his pre-existing schizophrenia, was fair and reasonable in its operation to the applicant in the circumstances • in relation to the medical evidence before it, the Tribunal noted the considerable variation in the clinical history provided by the applicant to the various medical experts, and the competing medical opinions relevant to the applicant's case • the Tribunal ultimately concluded that it was satisfied that the Trustee's decision to decline payment of the TPD benefit to the applicant on the grounds that, on the balance of probabilities his medical condition, be it PTSD or an anxiety disorder, was related to the pre-existing, long-standing paranoid schizophrenia, was fair and reasonable given the conflicting psychiatric opinions. After reviewing all the available medical evidence, the Tribunal also expressed the opinion that the applicant's PTSD or anxiety disorder was sufficiently related to his schizophrenia such as to render the decision of the Trustee fair and reasonable in its operation in relation to the applicant in the circumstances • contrary to the submission of the applicant, the Tribunal did not misdirect itself as to the fundamental issue it was obliged to consider, namely whether the decision of the second respondent was fair and reasonable in the circumstances • the reasons of the Tribunal must be read as a whole and fairly • it was not necessary for the Tribunal to decide afresh all findings of fact made by the second respondent • it was open for the Tribunal to conclude that favourable opinions expressed in the expert medical reports were outweighed by countervailing considerations including the opinions of Dr Butler and Dr Reddan • the Tribunal has examined the medical evidence, was fully aware of the task it had to embark on, and had regard to all the evidence in reaching its decision • the onus is on the applicant to demonstrate that there has been an error of law. The Tribunal does not commit an error of law because it finds facts wrongly or upon a doubtful basis or because it adopts some unsound or questionable reasoning at the end of the day • the second respondent in effect relied upon the findings of Dr Reddan and Dr Butler that the conditions complained of were not related to work • the second respondent relied on the following comments of Allsop J in Retail Employees Superannuation Pty Ltd v Crocker (2001) 48 ATR 359 at 367, which were endorsed by the Full Court in Cameron v Board Trustees of the State Public Sector Superannuation Scheme [2003] FCAFC 214 ; (2003) 130 FCR 122: "The Tribunal's task is not to engage in ascertaining generally the rights of the parties, nor is it to engage in some form of judicial review of the decision of the trustee or insurer. Rather it is to form a view, from the perspective of the trustee or insurer, as to whether the decision of either was (recognising the overriding framework given by the governing rules and policy terms, respectively) unfair or unreasonable." 15 The Tribunal is required by s 37(6) of the Act to affirm a relevant decision of a Trustee if it is satisfied that the decision was fair and reasonable in the circumstances. Relevant principles as to fairness and reasonableness in this context include the following: • the words "unfair" and "unreasonable" as used in the Act are of broad content and purpose, and not to be read restrictively: National Mutual Life v Campbell 99 FCR at 571 • whether a decision, or its operation in relation to a person, is fair and reasonable in the circumstances involves a value judgment, the making of which is committed to the Tribunal: National Mutual Life v Campbell 99 FCR at 570-571 • where the Tribunal forms the view that the decision was fair and reasonable it must affirm the decision even though the Tribunal might not itself have made the same decision ( National Mutual Life Association of Australia v Scollary [2002] FCA 695 at [37] , Colonial Mutual Life Assurance Society Ltd v Brayley [2002] FCA 1333 at [31] ) • a decision under review pursuant to s 37 may be one which so involves elements of fact, degree, opinion or value judgement that different minds can legitimately differ in reaching a decision. That is why the Tribunal's task is not to ask itself whether such a decision was the correct or preferable decision, nor to engage in ascertaining generally the rights of the parties, nor to engage in some form of judicial review of the decision of the trustee or insurer. Rather it is to form a view, from the perspective of the trustee, as to whether the decision was - recognising the overriding framework given by the rules of the fund - unfair or unreasonable (Allsop J in Crocker at ATR 366, 367, the Full Court in Cameron 130 FCR at 133) • as explained by Branson J in Brayley [2002] FCA 1333 at [32] , if the Tribunal is not satisfied that the decision was fair and reasonable in the circumstances, ss 37(1) and (2) require the Tribunal put itself in the position of the trustee and, in an appropriate case, the insurer and other relevant decision-maker ( National Mutual Life v Campbell 99 FCR at 570; Briffa v Hay (1997) 75 FCR 428 at 443-445). From that position or positions the Tribunal must determine whether, consistently with: (a) the general law; (b) the governing rules of the fund concerned; and (c) if a contract of insurance between the insurer and a trustee is involved, the terms of the contract, the unfairness or unreasonableness that the Tribunal has identified in respect of the trustee's decision can be addressed in whole or in part • a decision of a trustee or insurer as varied by the Tribunal, or a decision of the Tribunal in substitution for a decision of the trustee or insurer, is for all purposes (other than the making of a complaint about the decision) taken to be a decision of the trustee or insurer and, on the coming into operation of the determination by the Tribunal, unless the Tribunal otherwise orders, has effect on and from the day on which the original decision had effect: s 41(3) • the Tribunal is obliged to consider the evidence before it by way of hearing de novo : Seafarers' Retirement Fund Pty Ltd v Oppenhuis [1999] FCA 1683 ; (1999) 94 FCR 594 at 598-599. Indeed in reviewing a decision of a Trustee of a fund, the Tribunal has all the powers, obligations and discretions that are conferred on the trustee: s 37(1)(a). In exercising its powers of review, the Tribunal is not restricted to the documents which were before the Trustee, nor is it confined to the manner in which the applicant addressed the subject matter: Commonwealth Superannuation Scheme Board v Dexte r [2004] FCA 1434 ; (2004) 142 FCR 151 at 166-167, Crocker 48 ATR 387-388, Oppenhuis 94 FCR at 599, HEST Australia Ltd v Sykley [2005] FCA 1381 ; (2005) 147 FCR 248 at 259.


case_title: Colonial Mutual Life Assurance Society Ltd v Brayley [2002] FCA 1333


case_title: Commonwealth Superannuation Scheme Board v Dexte r [2004] FCA 1434 ; (2004) 142 FCR 151


case_text: A party may appeal to the Federal Court, on a question of law, from a determination of the Tribunal: s 46 Superannuation (Resolution of Complaints) Act 1993 (Cth) ("the Act "). Such proceedings come before the Court for hearing and determination in the exercise of its original, rather than appellate, jurisdiction: Cullinane v Mercer Benefit Nominees Ltd [2006] FCAFC 82 ; (2006) 152 FCR 1. 4 The background facts to this matter can be found in the Tribunal's Record of Decision, and the Statements of Facts, Issues and Contentions of the parties. They may be summarised as follows: • in 1994 the applicant was diagnosed with schizophrenia and commenced ongoing treatment • in September 2001, the applicant commenced employment with the Department of Primary Industries in Queensland as a field assistant in the Department's Fire Ant Eradication Program • on 10 September 2001 the applicant joined the QSuper Accumulation Account (the Fund). The Fund automatically provided him with 4 units of death and Total and Permanent Disablement ("TPD") insurance cover • in December 2001 the applicant applied to the Fund to increase his insurance cover to 17 units of death and TPD cover. This was approved effective 10 December 2001 • so far as relevant, cl 6.2 of the QSuper Trust Deed's Insurance Terms provides as follows: "No insurance benefit will be paid for a claim unless: ... (b) (i) the member has been an insured member for fewer than 10 continuous years; and (ii) the member lodged a personal medical statement at or about the date on which the member became an insured member; and (iii) the board is of the opinion that the total and permanent disablement ... was not related to a condition that was disclosed on the personal medical statement or which in the opinion of the board should reasonably have been disclosed on the personal medical statement; or (c) (i) the member has been an insured member for fewer than 10 continuous years; and (ii) the member did not lodge a personal medical statement at or about the date on which the member became an insured member, and (iii) it is established to the satisfaction of the board that the total and permanent disablement ... was not related to a condition that ought reasonably to have been disclosed had a personal medical statement been submitted at or about the date on which the member became an insured member." • there is some lack of clarity as to whether the applicant had disclosed his schizophrenia to the Fund prior to joining. The applicant claims he did so orally over the telephone and in a personal medical statement which was posted to QSuper, however it appears that this medical statement was not received. In any event this is not a relevant issue in this case as no insurance benefit is payable for TPD relating to a pre-existing medical condition irrespective whether it was disclosed • on 2 January 2002, while inspecting a property for fire ants, the applicant injured his right foot after running away from two dogs he thought were chasing him • the applicant ceased work on 8 July 2002 after anticipation of a repeat experience left him anxious and stressed to such a degree that he was unable to cope with his work • the applicant applied for a TPD benefit on 12 February 2003 • a delegate of the Trustee of the Fund determined that the TPD was because of his pre-existing schizophrenia and declined to pay the benefit in accordance with its rules relating to pre-existing illnesses • by letter dated 26 May 2003 the applicant was informed of the Trustee's decision • the applicant sought to appeal this decision on 17 June 2003 and then subsequently withdrew his appeal on 17 July 2003. However, by letter dated 19 May 2004 he renewed his appeal and provided various reports in support of the appeal • on 23 June 2003 the applicant was retired on ill health grounds • on 31 August 2004 the Trustee reviewed its decision at the applicant's request, and advised the applicant that the previous decision of the delegate of the Trustee was affirmed • the applicant appealed the Trustee's decision to the Tribunal on 5 November 2004 pursuant to s 14 of the Act , on the basis that the decision of the Trustee was unfair or unreasonable • the Tribunal affirmed the Trustee's decision in its decision of 2 October 2006 • the amount in dispute is the insured TPD benefit of $991,200. 5 The Tribunal identified its role as to determine whether the decision of the Trustee was fair and reasonable in its operation in relation to the applicant in the circumstances. The Tribunal noted that the issue was not whether the Tribunal would have made the same decision. The Tribunal considered that the issue before it was whether the decision of the Trustee that the condition rendering the applicant totally and permanently disabled was related to a pre-existing condition (as that term appeared in subcll 6.2 and 6.5 in the Fund's insurance terms) operated fairly and reasonably in relation to the applicant in these circumstances. 6 In its review determination and reasons the Tribunal considered in summary: • the Trust Deed and Insurance Terms • the medical reports of one psychologist, three psychiatrists, two general practitioners, two orthopaedic surgeons, one occupational health physician and a podiatrist and • the submissions of the parties. I note that the applicant was given leave to be legally represented at the hearing before the Tribunal. 7 The Tribunal found: "Based on the Tribunal's analysis of the medical reports, the Tribunal is satisfied that the Trustee's decision to decline payment of the TPD benefit to the Complainant on the grounds that, on the balance of probabilities, his medical condition, be it PTSD or an anxiety disorder, was related to the pre-existing, long-standing paranoid schizophrenia was fair and reasonable, given the conflicting psychiatric opinions. In the opinion of the Tribunal after reviewing all of the available medical evidence, the Complainant's PTSD or anxiety disorder is sufficiently related to his schizophrenia such as to render the decision of the Trustee fair and reasonable in relation to the Complainant in the circumstances."


case_text: In summary, the second respondent submitted: • in exercising its powers under s 37(1) of the Act , the Tribunal stands in the shoes of the decision-maker: National Mutual Life Association of Australia Ltd v Campbell [2000] FCA 852 ; (2000) 99 FCR 562 • the task of the Tribunal is that it must first consider whether the decision complained of was fair and reasonable in the circumstances. The words "fair" and "reasonable" are of broad content and purpose: Flexiplan Australia Ltd v Pankhurst [2001] FCA 1535 • the Tribunal noted that the issue to be determined was whether the decision of the Trustee to refuse payment of the TPD benefit, on the grounds that the applicant's total and permanent disability was caused by a condition related to his pre-existing schizophrenia, was fair and reasonable in its operation to the applicant in the circumstances • in relation to the medical evidence before it, the Tribunal noted the considerable variation in the clinical history provided by the applicant to the various medical experts, and the competing medical opinions relevant to the applicant's case • the Tribunal ultimately concluded that it was satisfied that the Trustee's decision to decline payment of the TPD benefit to the applicant on the grounds that, on the balance of probabilities his medical condition, be it PTSD or an anxiety disorder, was related to the pre-existing, long-standing paranoid schizophrenia, was fair and reasonable given the conflicting psychiatric opinions. After reviewing all the available medical evidence, the Tribunal also expressed the opinion that the applicant's PTSD or anxiety disorder was sufficiently related to his schizophrenia such as to render the decision of the Trustee fair and reasonable in its operation in relation to the applicant in the circumstances • contrary to the submission of the applicant, the Tribunal did not misdirect itself as to the fundamental issue it was obliged to consider, namely whether the decision of the second respondent was fair and reasonable in the circumstances • the reasons of the Tribunal must be read as a whole and fairly • it was not necessary for the Tribunal to decide afresh all findings of fact made by the second respondent • it was open for the Tribunal to conclude that favourable opinions expressed in the expert medical reports were outweighed by countervailing considerations including the opinions of Dr Butler and Dr Reddan • the Tribunal has examined the medical evidence, was fully aware of the task it had to embark on, and had regard to all the evidence in reaching its decision • the onus is on the applicant to demonstrate that there has been an error of law. The Tribunal does not commit an error of law because it finds facts wrongly or upon a doubtful basis or because it adopts some unsound or questionable reasoning at the end of the day • the second respondent in effect relied upon the findings of Dr Reddan and Dr Butler that the conditions complained of were not related to work • the second respondent relied on the following comments of Allsop J in Retail Employees Superannuation Pty Ltd v Crocker (2001) 48 ATR 359 at 367, which were endorsed by the Full Court in Cameron v Board Trustees of the State Public Sector Superannuation Scheme [2003] FCAFC 214 ; (2003) 130 FCR 122: "The Tribunal's task is not to engage in ascertaining generally the rights of the parties, nor is it to engage in some form of judicial review of the decision of the trustee or insurer. Rather it is to form a view, from the perspective of the trustee or insurer, as to whether the decision of either was (recognising the overriding framework given by the governing rules and policy terms, respectively) unfair or unreasonable."


case_text: The Tribunal is required by s 37(6) of the Act to affirm a relevant decision of a Trustee if it is satisfied that the decision was fair and reasonable in the circumstances. Relevant principles as to fairness and reasonableness in this context include the following: • the words "unfair" and "unreasonable" as used in the Act are of broad content and purpose, and not to be read restrictively: National Mutual Life v Campbell 99 FCR at 571 • whether a decision, or its operation in relation to a person, is fair and reasonable in the circumstances involves a value judgment, the making of which is committed to the Tribunal: National Mutual Life v Campbell 99 FCR at 570-571 • where the Tribunal forms the view that the decision was fair and reasonable it must affirm the decision even though the Tribunal might not itself have made the same decision ( National Mutual Life Association of Australia v Scollary [2002] FCA 695 at [37] , Colonial Mutual Life Assurance Society Ltd v Brayley [2002] FCA 1333 at [31] ) • a decision under review pursuant to s 37 may be one which so involves elements of fact, degree, opinion or value judgement that different minds can legitimately differ in reaching a decision. That is why the Tribunal's task is not to ask itself whether such a decision was the correct or preferable decision, nor to engage in ascertaining generally the rights of the parties, nor to engage in some form of judicial review of the decision of the trustee or insurer. Rather it is to form a view, from the perspective of the trustee, as to whether the decision was - recognising the overriding framework given by the rules of the fund - unfair or unreasonable (Allsop J in Crocker at ATR 366, 367, the Full Court in Cameron 130 FCR at 133) • as explained by Branson J in Brayley [2002] FCA 1333 at [32] , if the Tribunal is not satisfied that the decision was fair and reasonable in the circumstances, ss 37(1) and (2) require the Tribunal put itself in the position of the trustee and, in an appropriate case, the insurer and other relevant decision-maker ( National Mutual Life v Campbell 99 FCR at 570; Briffa v Hay (1997) 75 FCR 428 at 443-445). From that position or positions the Tribunal must determine whether, consistently with: (a) the general law; (b) the governing rules of the fund concerned; and (c) if a contract of insurance between the insurer and a trustee is involved, the terms of the contract, the unfairness or unreasonableness that the Tribunal has identified in respect of the trustee's decision can be addressed in whole or in part • a decision of a trustee or insurer as varied by the Tribunal, or a decision of the Tribunal in substitution for a decision of the trustee or insurer, is for all purposes (other than the making of a complaint about the decision) taken to be a decision of the trustee or insurer and, on the coming into operation of the determination by the Tribunal, unless the Tribunal otherwise orders, has effect on and from the day on which the original decision had effect: s 41(3) • the Tribunal is obliged to consider the evidence before it by way of hearing de novo : Seafarers' Retirement Fund Pty Ltd v Oppenhuis [1999] FCA 1683 ; (1999) 94 FCR 594 at 598-599. Indeed in reviewing a decision of a Trustee of a fund, the Tribunal has all the powers, obligations and discretions that are conferred on the trustee: s 37(1)(a). In exercising its powers of review, the Tribunal is not restricted to the documents which were before the Trustee, nor is it confined to the manner in which the applicant addressed the subject matter: Commonwealth Superannuation Scheme Board v Dexte r [2004] FCA 1434 ; (2004) 142 FCR 151 at 166-167, Crocker 48 ATR 387-388, Oppenhuis 94 FCR at 599, HEST Australia Ltd v Sykley [2005] FCA 1381 ; (2005) 147 FCR 248 at 259. 18 Following from this point, there was evidence before both the Trustee and the Tribunal, in particular the opinions of Dr Reddan and Dr Olsen, that the cause of the applicant's total and permanent disability was his schizophrenia, and that the applicant did not suffer from PTSD (reports of Dr Reddan and first report of Dr Butler). It appears that the Tribunal, unlike the Trustee, accepted that the applicant suffered a medical condition in the nature of either PTSD or anxiety disorder. Nonetheless there was clear evidence in the report of Dr de Leacy - which was not before the Trustee, but to which the Tribunal could have regard in light of principles emerging from cases including Sykley - that the applicant's pre-existing schizophrenia may have made him more susceptible to experiencing PTSD or an anxiety disorder. It is clearly in respect of the view the Tribunal took of the susceptibility of the applicant to either PTSD or anxiety disorder resulting from his schizophrenia that the Tribunal was referring to the "sufficient relationship" between those disorders and the applicant's schizophrenia, which latter condition was the basis of the Tribunal's finding. It was open to the Tribunal on the evidence to make that finding of fact. Interestingly, while the applicant claims as a ground of appeal that the Tribunal failed to give any or adequate weight to the views of Dr de Leacy - which weight was an issue of fact for the Tribunal in any event - on the contrary, it appears that the Tribunal gave considerable weight to the views of Dr de Leacy regarding the susceptibility of persons (including the applicant) suffering schizophrenia to PTSD or anxiety disorders. 19 Second, in relation to the question of law concerning the improper exercise by the Tribunal of its powers under s 37(1)(a) of the Act , it is clear that the role the Tribunal assumed for itself, and the question it posed for itself, were correct. The Tribunal recognised that, irrespective whether the Tribunal would have made the decision the Trustee made, its role was to consider whether the decision of the Trustee to refuse payment of the TPD benefit because of the applicant's pre-existing illness was fair and reasonable in its operation in relation to the applicant in the circumstances (s 37). 20 Further, and contrary to the submissions raised in the applicant's first ground of appeal , in my view the Tribunal did not err in finding that the Trustee's decision was fair and reasonable, notwithstanding that the Trustee did not have the opportunity to have regard to the opinion of Dr Eric De Leacy in his report dated 22 October 2005. In relation to this point, I note in passing that clearly there was no dearth of psychological or psychiatric material before the Trustee, including several reports favourable to the applicant. However the key issue here is that the Trustee did not have the opportunity to have regard to the opinion of Dr de Leacy. The obvious answer to this point is that the reason for this is because Dr de Leacy's report had been neither sought nor prepared at the time the Trustee made its decision. In my review this issue has no merit.


case_text: First, in relation to the question of law concerning the lack of evidence supporting the findings of the Tribunal, it is clear that, as observed by the Tribunal itself, and as demonstrated by my summary of the evidence before the Tribunal, there was a dissent of opinion amongst the reporting psychologist and psychiatrists. In such a case, the weighting of the evidence by the Tribunal, including the preference given to the views of the relevant medical practitioners, is an issue of fact, and any errors in so weighting the evidence do not give rise to errors of law appellable to this Court: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259.


case_title: National Mutual Life Association of Australia Ltd v Campbell [2000] FCA 852 ; (2000) 99 FCR 562


case_title: National Mutual Life Association of Australia v Scollary [2002] FCA 695


case_title: Retail Employees Superannuation Pty Ltd v Crocker (2001) 48 ATR 359


case_title: Seafarers' Retirement Fund Pty Ltd v Oppenhuis [1999] FCA 1683 ; (1999) 94 FCR 594


case_text: The Court's power to award costs is discretionary and is unfettered, except that it must be exercised judicially: s 43 of the Federal Court of Australia Act 1976 (Cth); s 1335(2) of the Corporations Act 2001 (Cth). The Court's discretion to order costs pursuant to the power in s 43 is at large, and that section provides a broad and ample power which ought not be read down otherwise than in accordance with accepted principle: Cirillo v Consolidated Press Property Ltd (No 2) [2007] FCA 179 at [3] per Finn J. The purpose of an order for costs is to compensate the successful party, not to punish the unsuccessful one: Latoudis v Casey (1990) 170 CLR 534 at 543 per Mason CJ.


case_text: These reasons concern the issue of costs following my judgment on the merits in this matter: In the matter of Arc Energy Limited [2008] FCA 1396 ("Arc Energy"). The reasons in that judgment give relevant context and background to these reasons. I heard oral submissions as to costs after judgment was delivered but gave Arc Energy Ltd ("Arc") and Buru Energy Ltd leave to put in further written submissions directed to the case of Re Crusader Limited (1996) 1 Qd R 117 cited by Oil Basins. Arc submits that Oil Basins Limited ("Oil Basins") ought pay the Plaintiff's costs of responding to the application filed by Oil Basins during the afternoon of Thursday, 7 August 2008, which occupied much of the hearing on the afternoon of Friday, 8 August 2008. It also opposes Oil Basins' application for a costs order in its favour. 13 Furthermore, the litigation was instituted so close to the members meeting as to ensure, objectively speaking, that Arc would not be able to advise the proxy voters of it or of the companies response to it prior to the meeting. The long delay in commencing the litigation was unexplained. The claims made in the litigation are deficient of supporting material and obvious legal merit: Arc Energy at [9]. As I said in Arc Energy at [10]: I invited counsel for Oil Basins to explain why the adjournment was being pressed, when obviously Oil Basins has no personal standing to protect the interests of Arc shareholders. Its interests would have been served by the making of the orders sought under s 413(1)(c) of the Act. I was not given any answer which I found to be satisfactory. Oil Basins' conduct in bringing such a belated application upon a paucity of fact and without a satisfactory explanation leads me to conclude that its real reasons are for some commercial gain or advantage, by putting a roadblock in front of the progress of the scheme. It should not be allowed to succeed in that course unless of course there is, objectively viewed, a proper basis for granting the orders sought. 14 It was appropriate for Oil Basins to bring the matter of the litigation and the situation of the proxy voters to the attention of the Court. I am satisfied however that the application for an adjournment with associated orders was made for an ulterior purpose: Arc Energy at [10]. It unnecessarily added to the costs of the hearing. Even if Oil Basins may be considered to be an objector this finding is an exceptional circumstance warranting a costs order against it: Re Crusader at 231-232; Re Matine Ltd at 494.


case_title: Latoudis v Casey (1990) 170 CLR 534


case_text: Oil Basins submits, correctly, that generally the costs of objectors should be paid by the Company (Plaintiff): Re Crusader (1995) 120 FLR 219; and Re Matine Ltd (1998) 28 ACSR 492 ; Re Arrowfield Group Ltd (1995) 17 ACSR 649 ; Re Castlereagh Securities Ltd [1973] 1 NSWLR 624 ; Re Ampol Ltd (1989) 14 ACLR 772 , which were cited with approval by Hansen J in his decision to award the objectors their costs in Quatro Ltd v Argo Investments Ltd and Others (1999) 32 ACSR 480. 10 Arc submits that in the present case, the following factors support the exercise of the Court's discretion to award costs against the Intervener: (a) Prior to filing the interlocutory application, neither Oil Basins nor its solicitors raised with Arc, or its solicitors, the issues which were the subject of the application. The issues concerning s 413 of the Corporations Act 2001 (Cth) did not need to be the subject of an application - Arc accepted that orders pursuant to s 413 should be made and would have proposed those orders had Oil Basins sought them in correspondence. It did not. Indeed, Arc's solicitors corrected the errors in the formulation of the s 413 orders as expressed in Oil Basins' interlocutory application. (b) The interlocutory process filed on behalf of Oil Basins indicates that the adjournment application, which proposed a supplementary statement be issued and a fresh scheme meeting be held, was an "alternative". Oil Basins changed its position in this regard on Friday, 8 August, by seeking orders 3, 4 and 5 at the hearing. (c) The affidavit filed in support of the interlocutory application was deficient and unhelpful. It was sworn by Kim Warren McGrath, who is the chairman of Oil Basins, and a director of that company. Mr McGrath had access to legal advice before swearing the affidavit. Mr McGrath's affidavit contained obviously objectionable material (paragraphs 8 and 9), and included a misleading heading (above paragraph 11). It offered no real assistance to the Court, and failed to annex the 6 December 2006 ASX announcement, which was highly relevant (and which Arc produced - see annexure "DDK13" to the Fifth Kirk Affidavit). (d) Counsel for Oil Basins, during the hearing on 8 August 2008, was unable to explain the reason for Oil Basins' delay in commencing proceedings in the Supreme Court of Western Australia against Arc. The delay is in excess of 18 months (taken from the date of the ASX announcement on 6 December 2006). The litigation was filed, without warning, on 1 August 2008, only 4 days before the scheme meeting and 7 days before the Court hearing. The apparent explanation offered by Mr McGrath in his affidavit (see paragraphs 11 and following), under the misleading heading "Discovery of plaintiff's breach of confidentiality agreement", lacks credibility in the circumstances. (e) Counsel for Oil Basins, during the hearing on 8 August 2008, was unable to explain to the Court the "interest" which Oil Basins had in raising issues concerning the disclosure to members, and in seeking an adjournment of the scheme. The Court has inferred that Oil Basins' was acting to obtain some commercial advantage. (f) In addition, it is relevant to consider the seriousness of the order which was sought by Oil Basins (order 5). That order was pressed by Counsel for Oil Basins at the hearing on 8 August. Order 5 proposed an adjournment of the hearing, the preparation and distribution to shareholders of a supplementary statement, and the convening of a further scheme meeting of members, which would then have resulted in a further Court hearing before this Court. All of this would have involved considerable time and expense, and a delay to the scheme process. This must be seen in the context of a scheme which: (i) was intended to establish an Australian mid-tier oil and gas company with an expected market capitalisation of greater than $2 billion; (ii) would establish a newly listed company (Buru Energy Limited); (iii) an independent expert had determined was in the best interests of, and fair and reasonable to, ARC shareholders; and (iv) the ARC shareholders had overwhelmingly voted in favour of. In this context, it is of considerable concern, and relevant to the exercise of the Court's discretion on the question of costs, that Oil Basins would be prepared to apply to this Court for such a serious order based on only the flimsiest of affidavit material. 11 I accept the submissions made by Arc. The question of what was the real purpose of Oil Basins in pressing for an adjournment is a primary consideration. During the substantive hearing I asked counsel for Oil Basins what interest it had in seeking an adjournment on behalf of proxy voters in Arc, none of whom he represented. The following exchange took place: HIS HONOUR: As a matter of interest, what is the interest of the shareholders of Arc got to do with your client? MR BRUCE: Well, yes, that is I was wondering when your Honour might ask me that. HIS HONOUR: Well, I've asked it, I've asked the question. MR BRUCE: It is, your Honour, that we simply say that it is a matter for the court. We are here principally to seek the relief that we've sought, and that has been agreed to, but we say that that has a material impact which is disputed. HIS HONOUR: Well, it has absolutely no impact at all upon the first set of orders that were sought. MR BRUCE: No, no. HIS HONOUR: It only has impact on the alternative relief you seek. MR BRUCE: That is correct. HIS HONOUR: It wasn't a flippant question. I would like to know what interest it is of your client as to the concern of the proxies filed by shareholders of Arc? MR BRUCE: It is simply, your Honour, that it is the duty of the court to be satisfied in all the circumstances. HIS HONOUR: But why are you telling me what the duty of the court is? Why are you telling me that there should - - - MR BRUCE: Sorry, your Honour. HIS HONOUR: Why are you telling the court that there should be an adjournment? Why do you want an adjournment? MR BRUCE: Because we consider, your Honour, that that well, I should perhaps just sit down, appoint and say, your Honour, that we have it's a matter for the court and we thought that it was our duty to bring those matters to the court's attention. HIS HONOUR: You've brought it to the attention of the court but you're pressing for the adjournment. I'm asking you why you want the adjournment. That goes beyond informing the court as to its duty. MR BRUCE: Yes, I accept that. HIS HONOUR: Why do you want the adjournment? MR BRUCE: To ensure that the Buru shareholders know what they're getting themselves in for, is one answer, sir. 12 If the purpose of Oil Basins had been merely to inform the Court as to the position of the proxy voters in light of the litigation launched by Oil Basins then that was achieved by reading the affidavit of Mr David Charles Griffiths sworn 7 August 2008. The purpose behind the application for the adjournment however was not explained. It was the hearing of that application which consumed much of the Court time on Friday 8 August 2008.


case_title: Re Ampol Ltd (1989) 14 ACLR 772

case_text: Oil Basins submits, correctly, that generally the costs of objectors should be paid by the Company (Plaintiff): Re Crusader (1995) 120 FLR 219; and Re Matine Ltd (1998) 28 ACSR 492 ; Re Arrowfield Group Ltd (1995) 17 ACSR 649 ; Re Castlereagh Securities Ltd [1973] 1 NSWLR 624 ; Re Ampol Ltd (1989) 14 ACLR 772 , which were cited with approval by Hansen J in his decision to award the objectors their costs in Quatro Ltd v Argo Investments Ltd and Others (1999) 32 ACSR 480.


case_title: Re Arrowfield Group Ltd (1995) 17 ACSR 649


case_title: Re Castlereagh Securities Ltd [1973] 1 NSWLR 624


case_title: Re Crusader (1995) 120 FLR 219

case_text: These reasons concern the issue of costs following my judgment on the merits in this matter: In the matter of Arc Energy Limited [2008] FCA 1396 ("Arc Energy"). The reasons in that judgment give relevant context and background to these reasons. I heard oral submissions as to costs after judgment was delivered but gave Arc Energy Ltd ("Arc") and Buru Energy Ltd leave to put in further written submissions directed to the case of Re Crusader Limited (1996) 1 Qd R 117 cited by Oil Basins. Arc submits that Oil Basins Limited ("Oil Basins") ought pay the Plaintiff's costs of responding to the application filed by Oil Basins during the afternoon of Thursday, 7 August 2008, which occupied much of the hearing on the afternoon of Friday, 8 August 2008. It also opposes Oil Basins' application for a costs order in its favour. 7 Oil Basins submits, correctly, that generally the costs of objectors should be paid by the Company (Plaintiff): Re Crusader (1995) 120 FLR 219; and Re Matine Ltd (1998) 28 ACSR 492 ; Re Arrowfield Group Ltd (1995) 17 ACSR 649 ; Re Castlereagh Securities Ltd [1973] 1 NSWLR 624 ; Re Ampol Ltd (1989) 14 ACLR 772 , which were cited with approval by Hansen J in his decision to award the objectors their costs in Quatro Ltd v Argo Investments Ltd and Others (1999) 32 ACSR 480. 14 It was appropriate for Oil Basins to bring the matter of the litigation and the situation of the proxy voters to the attention of the Court. I am satisfied however that the application for an adjournment with associated orders was made for an ulterior purpose: Arc Energy at [10]. It unnecessarily added to the costs of the hearing. Even if Oil Basins may be considered to be an objector this finding is an exceptional circumstance warranting a costs order against it: Re Crusader at 231-232; Re Matine Ltd at 494.


case_title: Re Matine Ltd (1998) 28 ACSR 492

case_text: Oil Basins submits, correctly, that generally the costs of objectors should be paid by the Company (Plaintiff): Re Crusader (1995) 120 FLR 219; and Re Matine Ltd (1998) 28 ACSR 492 ; Re Arrowfield Group Ltd (1995) 17 ACSR 649 ; Re Castlereagh Securities Ltd [1973] 1 NSWLR 624 ; Re Ampol Ltd (1989) 14 ACLR 772 , which were cited with approval by Hansen J in his decision to award the objectors their costs in Quatro Ltd v Argo Investments Ltd and Others (1999) 32 ACSR 480. 14 It was appropriate for Oil Basins to bring the matter of the litigation and the situation of the proxy voters to the attention of the Court. I am satisfied however that the application for an adjournment with associated orders was made for an ulterior purpose: Arc Energy at [10]. It unnecessarily added to the costs of the hearing. Even if Oil Basins may be considered to be an objector this finding is an exceptional circumstance warranting a costs order against it: Re Crusader at 231-232; Re Matine Ltd at 494.


case_text: No submissions have been made this morning as to whether my judgment or order of 13 June 2007 have been entered. Considering the situation on the best case of the appellant, however, comments of Toohey, Gaudron, McHugh, Gummow and Kirby JJ in De L v Director-General, NSW Department of Community Services [1997] HCA 14 ; (1997) 190 CLR 207 are relevant. 8 In that case, their Honours said at 215 as follows (omitting citations): The power of this court to reopen its judgments or orders is not in doubt. The court may do so if it is convinced that, in its earlier consideration of the point, it has proceeded "on a misapprehension as to the facts or law", where "there is some matter calling for review" or where "the interests of justice so require". It has been said repeatedly that a heavy burden is cast upon the applicant for reopening to show that such an exceptional course is required "without fault on his part", ie without the attribution of neglect or default to the party seeking reopening. By such expressions of the power to reopen final orders, courts seek to recognise competing objectives of the law. On the one hand, there is the principle of finality of litigation which reinforces the respect that should be shown to orders, final on their face, addressed to the world at large and upon which conduct may be ordered reliant upon their binding authority. On the other hand, courts recognise that accidents and oversights can sometimes occur which, unrepaired, will occasion an injustice. In the case of a final court of appeal, such as this court, that injustice may be irremediable, unless the court itself, acting promptly, is persuaded to reopen its orders so as to afford relief in the exceptional circumstances of the case.


case_outcome: related

case_text: I have before me an application filed 19 June 2007 seeking an order that the orders made by the Court in this matter on 13 June 2007 be set aside. Those orders are the orders made in the substantive judgment in this matter SZHJE v Minister for Immigration and Citizenship [2007] FCA 904. In that case, I dismissed an appeal by the appellant against the decision of Emmett FM of 14 March 2007 which had, in turn, dismissed an application for judicial review of a decision of the Refugee Review Tribunal of 29 August 2005 and handed down on 20 September 2005. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant. 2 Although I am considering an application filed by the appellant in the substantive matter, for convenience I shall continue to refer to SZHJE as "the appellant". The appellant did not attend the hearing before me on 13 June 2007 and seeks to have the orders made that day set aside. The appellant's submission is that he did not receive the letter notifying him of the hearing before me on 13 June 2007 and, therefore, did not attend the hearing. The appellant further submits that he had filed information in preparation for the hearing and it was evident from this action that he wanted to attend. However, he could not do so because he was not aware of the hearing date. 3 I note by way of background that this matter first came before me on 22 May 2007. Both parties were present. At that hearing, it became apparent that an adjournment would be necessary as the appellant may not have received a copy of the reasons for decision of the learned Federal Magistrate and that in the interests of justice he should have an opportunity to consider her Honour's reasons. (I noted at that hearing that the decision of the Federal Magistrate was delivered on 14 March 2007 at which time her Honour indicated that the reasons for her decision would be given at a later date and that I understood that reasons for her Honour's decision were given on 7 May 2007.) 4 The hearing was subsequently relisted for 13 June 2007 and the appellant filed written submissions on 4 June 2007. In my judgment in SZHJE [2007] FCA 904 at [16] - [18] I outlined the measures taken by the Court and the respondent to notify the appellant of the hearing date and indicated that I was satisfied that all reasonable attempts had been made to notify the appellant of the hearing. 5 The appellant has said in Court this morning that his appeal was dismissed on 13 June 2007 because he did not appear. This is not the case. As I made clear during the 13 June 2007 hearing, and as I specifically indicated in my judgment, I was not prepared to adjourn the hearing for want of appearance. In view of the material before the Court, I was prepared to decide this matter on the merits of the material before me. My reasons for decision in respect of each of the appellant's grounds of appeal are set out in SZHJE [2007] FCA 904 at [23] . 6 Accordingly, I note that this is not a case where the appellant's appeal was dismissed pursuant to s 25(2B)(bb)(ii) Federal Court of Australia Act 1976 (Cth) because the appellant failed to attend the hearing. In light of this, the question is upon what basis the appellant could seek to have my orders in SZHJE [2007] FCA 904 set aside. One clear avenue is by way of appeal from that decision, which is not a matter for this Court. Another possible ground is in terms of O 35 r 7 Federal Court Rules which provides in O 37 r 7(1): "The court may vary or set aside a judgment or order before it has been entered". Order 35 r 7(2) is not applicable in these circumstances because the Court is exercising its appellate jurisdiction. 9 To the extent that such comments are applicable in the case before me, I note that this matter was heard by me on 13 June 2007 and decided on the appellant's grounds of appeal and submissions of both the appellant and the first respondent. It is unfortunate that the appellant did not appear at that hearing and that additional time and expense have been incurred on account of this application. However, I am not persuaded that there is any reason to depart from my decision in SZHJE [2007] FCA 904. I have considered all the appellant's claims in full in that judgment and am not satisfied that this is a case where there has been some misapprehension as to facts or law or some accident or oversight has occurred which occasions an injustice such that the decision should be set aside. No further submissions have been made by the appellant today which persuade me that there is an appellable error in the decision of the Court below, which could justify a review of my decision and orders of 13 June 2007. THE COURT ORDERS THAT: 1. The application filed 19 June 2007 be dismissed. 2. The appellant pay the costs of the first respondent to be fixed in the sum of $500. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 11 July 2007 Counsel for the Appellant: The appellant appeared in person Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 9 July 2007 Date of Judgment: 9 July 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1037.html


case_text: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 , the Court indicated that there were five indicia which ought to be addressed in determining whether relief ought to be given: (a) Applications for an extension of time are not to be granted unless it is proper to do so; the legislative time limits are not to be ignored. (b) There must be some acceptable explanation for the delay. (c) Any prejudice to the respondent in defending the proceedings, caused by the delay, is a material factor militating against the grant of an extension. (d) The mere absence of prejudice to the respondent is not enough to justify the grant of an extension. (e) The merits of the substantial application are to be taken into account in considering whether an extension is to be granted. The explanation for the delay is somewhat perfunctory and incomplete. As I have already noticed, it remains unclear whether the applicant was put on notice that the notice of appeal needed to be filed by 28 November. Counsel's letter to the applicant's solicitor put the solicitor on notice that there was a degree of urgency about the matter but that seems not to have been appreciated by the solicitor who swore his affidavit on 9 December 2008 but did not lodge the application for this extension until 17 December 2008. There is no prejudice to the respondent but as the Court said in Hunter Valley Developments Pty Ltd v Cohen 3 FCR 344 the mere absence of prejudice is not enough to justify the grant of an extension. It seems to me that whether or not an extension of time should be granted in this application will be determined by reference to the merits of the appeal to which I will now turn. The applicant was born on 7 April 1974 in the Archeng District, Harbin City, Heilongjiang Province in China. He was educated between 1981 and 1993, having studied at a technical school in the last three years of his schooling. In March 1994 he was employed by Archeng Water Company and worked for that company for more than 13 years. During this period of employment he studied for Business Management at Harbin Economic Cadre Management College.


case_title: Jess v Scott (1986) 12 FCR 187

case_text: Jess v Scott (1986) 12 FCR 187 , the Full Court said that special reasons need to be shown why the appeal should be permitted to proceed. The Court explained that special reasons in that context was meant to distinguish the case under consideration from the usual course according to which the time is 21 days.


case_text: applicant's contention as to the construction in s 424AA has been considered and rejected by other members of the Court in SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 (Cowdroy J), SZMAE v Minister for Immigration and Citizenship [2008] FCA 1701 (Edmonds J), SZITH v Minister for Immigration and Citizenship (2008) 105 ALD 541 (Middleton J), SZLWI v Minister for Immigration and Citizenship [2008] FCA 1330 (Gilmour J) and SZLML v Minister for Immigration and Citizenship [2009] FCA 83 (Jagot J). Although the reasons in those cases may not be as these reasons, I agree in the results.


case_title: SZLML v Minister for Immigration and Citizenship [2009] FCA 83


case_text: Federal Magistrate concluded that the applicant's submission was to particularise and expand on information which the Tribunal had paraphrased or summarised in what it put to the applicant. He concluded that whilst the Tribunal could have put what was said to be what should have been put, the Tribunal could not be criticised for summarising the information in the way that it did. For those reasons, the Federal Magistrate concluded that even if the Tribunal had an obligation to give information pursuant to s 424AA(b)(i) that it did not breach that obligation. However, the Federal Magistrate also concluded that the information in question was independent country information which the Tribunal had no obligation to notify to the applicant. He followed a decision of Cowdroy J in SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 in which his Honour concluded that the exclusions contained in s 424A(3) applied with equal force to s 424AA. The Federal Magistrate concluded that that decision stood for the proposition that independent country information did not have to be provided to an applicant under s 424A(1) and s 424AA. The Federal Magistrate analysed for himself the two sections and came to the same conclusion as Cowdroy J and, in doing so, disagreed with a decision of Driver FM in SZLTC v Minister for Immigration and Citizenship [2007] FMCA 384 to the contrary.


case_title: SZLWI v Minister for Immigration and Citizenship [2008] FCA 1330


case_text: Federal Magistrate concluded that the applicant's submission was to particularise and expand on information which the Tribunal had paraphrased or summarised in what it put to the applicant. He concluded that whilst the Tribunal could have put what was said to be what should have been put, the Tribunal could not be criticised for summarising the information in the way that it did. For those reasons, the Federal Magistrate concluded that even if the Tribunal had an obligation to give information pursuant to s 424AA(b)(i) that it did not breach that obligation. However, the Federal Magistrate also concluded that the information in question was independent country information which the Tribunal had no obligation to notify to the applicant. He followed a decision of Cowdroy J in SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 in which his Honour concluded that the exclusions contained in s 424A(3) applied with equal force to s 424AA. The Federal Magistrate concluded that that decision stood for the proposition that independent country information did not have to be provided to an applicant under s 424A(1) and s 424AA. The Federal Magistrate analysed for himself the two sections and came to the same conclusion as Cowdroy J and, in doing so, disagreed with a decision of Driver FM in SZLTC v Minister for Immigration and Citizenship [2007] FMCA 384 to the contrary. The applicant's contention as to the construction in s 424AA has been considered and rejected by other members of the Court in SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 (Cowdroy J), SZMAE v Minister for Immigration and Citizenship [2008] FCA 1701 (Edmonds J), SZITH v Minister for Immigration and Citizenship (2008) 105 ALD 541 (Middleton J), SZLWI v Minister for Immigration and Citizenship [2008] FCA 1330 (Gilmour J) and SZLML v Minister for Immigration and Citizenship [2009] FCA 83 (Jagot J). Although the reasons in those cases may not be as these reasons, I agree in the results.


case_title: SZMAE v Minister for Immigration and Citizenship [2008] FCA 1701


case_outcome: followed

case_text: It was contended by the appellant that the Federal Magistrate's conclusion was inconsistent with Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 ; (2001) 194 ALR 244 and SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 80 ; (2003) 76 ALD 625. 38 If there is material before the Tribunal which, if accepted by the Tribunal, would raise a case different from that which was articulated by the applicant, the Tribunal is under an obligation to inquire into that other case: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 ; (2001) 194 ALR 244 at [13] . That is consistent with the inquisitorial procedure under which the Tribunal operates. Like any other administrative decision maker, its responsibility is to make the appropriate and proper decision on the facts as found. It cannot, like a Court in an adversarial proceeding, limit its consideration to the case as articulated by the parties.


case_text: It was contended by the appellant that the Federal Magistrate's conclusion was inconsistent with Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 ; (2001) 194 ALR 244 and SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 80 ; (2003) 76 ALD 625. 39 In SCAT v Minister for Immigration and Multicultural Affairs [2003] FCA 80 ; (2003) 76 ALD 625 at 634-5, the Full Court said, when considering whether a claim of potential psychological harm had been put forward: We do not find it persuasive on the issue of whether there was a claim made to the [T]ribunal concerning psychological harm that there was not a complaint, in terms, directly made to the [T]ribunal by either the appellant or his wife that either of them or any of their children was sustaining any psychological harm. 40 The question, however, must be whether there was sufficient evidence put before the Tribunal to alert the Tribunal to the fact that the issue was raised. In my opinion, there was. The Tribunal was advised, and did accept, that the appellant had been detained and tortured for a period of 13 months. It also accepted that upon his release he was subject to threats from the police. 41 The Tribunal specifically acknowledged that those experiences might have given the appellant a subjective fear of persecution. It had evidence from Dr Lee in the form of his report of 26 March 2006 saying that the appellant was unfit to work or study on psychological and emotional grounds. It heard evidence from Dr Lee who described the appellant as a "completely broken man who was unable to communicate anything without shaking." It had Dr Lee's evidence that the appellant was on medications including anti-depressants and anti-psychotics. It received Dr Lee's further report in response to the s 424A letter in which Dr Lee said: [SBTF] is at serious risk, due to his more severe treatment by the police in Bahrain with significant psychological damage, and because of the effects his detention has had on an already more fragile and sensitive personality. 48 It is necessary, if the appellant is to avail himself of the obligation Australia owes under the Refugee Convention, to establish that the persecution which he suffers involves serious harm to him. Section 91R of the Act gives instances of what will amount to serious harm. Section 91R(2) , however, is not to be understood as meaning that other forms of serious harm not addressed in s 91R(2) would not satisfy s 91R(1). Section 91R(2) specifically states that the instances which are given in that subsection are not to limit what might amount to serious harm for the purpose of s 91(1)(b). SCAT v Minister for Immigration and Multicultural Affairs [2003] FCA 80 ; 76 ALD 625 supports the appellant's contention that psychological harm may be serious harm within the meaning of s 91R. 49 Whether, as contended, the appellant would be a real chance of suffering persecution if he were to return to Bahrain is a matter for the Tribunal. This Court cannot address that question. The fact is the Tribunal did not address this question because it did not consider the appellant's claim that he would suffer persecution by reason of suffering psychological harm. 50 In my opinion, the Tribunal failed its obligations in exercising its jurisdiction under the Act by failing to consider this aspect of the appellant's claim.


case_text: Various methods of measuring damages for an infringement of copyright have been described in the cases. In Sutherland Publishing Co Ltd v Caxton Publishing Co Ltd [1936] 1 Ch 323 at 336, Lord Wright MR said that the measure of damages in a copyright case "is the depreciation caused by the infringement to the value of the copyright as a chose in action". However, the authorities make it clear that is only one method of measuring damages: Autodesk Australia Pty Ltd v Cheung (1990) 17 IPR 69 ; Bailey 53 FCR at 111-112; Milpurrurru v Indofurn Pty Ltd (1994) 54 FCR 240. Another method is to determine the licence fee or royalty the infringing party would have to pay to use the work lawfully. There are difficulties in applying that approach in circumstances where it cannot be inferred that the infringing party would pay a licence fee rather than not use the work ( Autodesk 17 IPR at 75). The applicant did not contend that either of the aforesaid methods was appropriate in this case. It submitted that this was a case in which it was appropriate to treat the damages as being at large and to approach the assessment of damages as a jury would ( Fenning Film Service Ltd v Wolverhampton, Walsall and District Cinemas Ltd [1914] 3 KB 1171 at 1174 per Horridge J). I think that is the proper approach in the circumstances of this case.


case_text: In relation to the claim for damages under s 115(2) of the Act , the Court, in awarding damages for infringement of copyright, will have regard to similar considerations as attend the award of damages in tort: General Tire & Rubber Co v Firestone Tyre and Rubber Co Ltd [1976] RPC 197. The purpose of an award is to compensate the plaintiff for the loss suffered as a result of the defendant's infringement: Bailey v Namol Pty Ltd [1994] FCA 1401 ; (1994) 53 FCR 102 at 110-111. 11 Various methods of measuring damages for an infringement of copyright have been described in the cases. In Sutherland Publishing Co Ltd v Caxton Publishing Co Ltd [1936] 1 Ch 323 at 336, Lord Wright MR said that the measure of damages in a copyright case "is the depreciation caused by the infringement to the value of the copyright as a chose in action". However, the authorities make it clear that is only one method of measuring damages: Autodesk Australia Pty Ltd v Cheung (1990) 17 IPR 69 ; Bailey 53 FCR at 111-112; Milpurrurru v Indofurn Pty Ltd (1994) 54 FCR 240. Another method is to determine the licence fee or royalty the infringing party would have to pay to use the work lawfully. There are difficulties in applying that approach in circumstances where it cannot be inferred that the infringing party would pay a licence fee rather than not use the work ( Autodesk 17 IPR at 75). The applicant did not contend that either of the aforesaid methods was appropriate in this case. It submitted that this was a case in which it was appropriate to treat the damages as being at large and to approach the assessment of damages as a jury would ( Fenning Film Service Ltd v Wolverhampton, Walsall and District Cinemas Ltd [1914] 3 KB 1171 at 1174 per Horridge J). I think that is the proper approach in the circumstances of this case. 17 In relation to the claim for additional damages under s 115(4) of the Act , it is appropriate to begin by making the following general observations. First, there is no need for me to consider if an award of additional damages can be made under s 115(4) if no damages are awarded under s 115(2) because I have awarded nominal damages under s 115(2) ( Polygram Pty Ltd v Golden Editions Pty Ltd (No 2) 38 IPR 451 at 459-461 per Lockhart J; MJA Scientifics at 283-284 per Sundberg J). Secondly, it is not necessary that there be a proportionate relationship between the additional damages awarded under subs (4) and the damages awarded under subs (2): Flags 2000 Pty Ltd v Smith (2003) 59 IPR 191 at 198 per Goldberg J. An award of additional damages under subs (4) is not dependent upon the adequacy or inadequacy of an award of damages under subs (2). Thirdly, the matters in subs (4)(b)(i)-(iv) inclusive are not preconditions to an award of additional damages. In other words, and using the flagrancy of the infringement as an example, the Court must have regard to the flagrancy of the infringement in determining whether to award additional damages, but it is not the case that additional damages can be awarded only if the breach involves a particular degree of flagrancy. Fourthly, in the recent case of Flags 2000 Goldberg J suggested that there is a distinction between conduct of a defendant after an infringement (or after being informed that he has allegedly infringed the plaintiff's copyright) and relevant to the substantive allegations against him on the one hand, and the defendant's conduct of his defence to an action for an infringement of copyright in relation to procedural matters on the other. The former matter is within the terms of s 115(4)(b)(ib) of the Act , whereas it has been suggested that the latter matter is a matter to be taken into account in determining the appropriate order as to costs. In Flags 2000 59 IPR at 201, [45]-[46] Goldberg J said: "[45] The applicants submitted that the insertion of subparas (ia) and (ib) was declaratory of the position which had existed prior to the amendments. There is substance in that submission as can be seen from cases such as Carson v John Fairfax & Sons [1993] HCA 31 ; (1992) 178 CLR 44 at 71 ; [1993] HCA 31 ; 113 ALR 577 at 597 and Microsoft Corp v Goodview Electronics Pty Ltd (2000) 49 IPR 578. However, the conduct taken into account in those cases was conduct which was relevant to the substantive allegations made against the respondents. For example, in the Microsoft case the respondent filed a defence which proved to be false. Branson J took that fact into account in conjunction with other evidence which showed an intention on behalf of the respondent to conceal the identity of their suppliers to find 'a deliberate pattern of conduct by the respondents in which they recognised the illegality of the enterprise they are engaged in and actively sought to conceal it'. [46] I do not consider that the conduct of the respondent contemplated by subpara (ib) of s 115(4)(b) is referable to conduct of the defence in so far as it relates to procedural matters and matters whereby the applicants are put to the proof of their case, albeit unreasonably. I consider that these are matters more appropriately dealt with by an appropriate order for costs." In certain circumstances, the distinction may be a difficult one to apply and there is an obvious need to avoid double-counting. Nevertheless, I agree with the distinction identified by Goldberg J in Flags 2000 59 IPR 191. Fifthly, an award under s 115(4) of the Act can encompass damages which at common law would be aggravated damages and exemplary damages: Bailey 53 FCR at 113-114.


case_title: Fenning Film Service Ltd v Wolverhampton, Walsall and District Cinemas Ltd [1914] 3 KB 1171


case_text: In relation to the claim for additional damages under s 115(4) of the Act , it is appropriate to begin by making the following general observations. First, there is no need for me to consider if an award of additional damages can be made under s 115(4) if no damages are awarded under s 115(2) because I have awarded nominal damages under s 115(2) ( Polygram Pty Ltd v Golden Editions Pty Ltd (No 2) 38 IPR 451 at 459-461 per Lockhart J; MJA Scientifics at 283-284 per Sundberg J). Secondly, it is not necessary that there be a proportionate relationship between the additional damages awarded under subs (4) and the damages awarded under subs (2): Flags 2000 Pty Ltd v Smith (2003) 59 IPR 191 at 198 per Goldberg J. An award of additional damages under subs (4) is not dependent upon the adequacy or inadequacy of an award of damages under subs (2). Thirdly, the matters in subs (4)(b)(i)-(iv) inclusive are not preconditions to an award of additional damages. In other words, and using the flagrancy of the infringement as an example, the Court must have regard to the flagrancy of the infringement in determining whether to award additional damages, but it is not the case that additional damages can be awarded only if the breach involves a particular degree of flagrancy. Fourthly, in the recent case of Flags 2000 Goldberg J suggested that there is a distinction between conduct of a defendant after an infringement (or after being informed that he has allegedly infringed the plaintiff's copyright) and relevant to the substantive allegations against him on the one hand, and the defendant's conduct of his defence to an action for an infringement of copyright in relation to procedural matters on the other. The former matter is within the terms of s 115(4)(b)(ib) of the Act , whereas it has been suggested that the latter matter is a matter to be taken into account in determining the appropriate order as to costs. In Flags 2000 59 IPR at 201, [45]-[46] Goldberg J said: "[45] The applicants submitted that the insertion of subparas (ia) and (ib) was declaratory of the position which had existed prior to the amendments. There is substance in that submission as can be seen from cases such as Carson v John Fairfax & Sons [1993] HCA 31 ; (1992) 178 CLR 44 at 71 ; [1993] HCA 31 ; 113 ALR 577 at 597 and Microsoft Corp v Goodview Electronics Pty Ltd (2000) 49 IPR 578. However, the conduct taken into account in those cases was conduct which was relevant to the substantive allegations made against the respondents. For example, in the Microsoft case the respondent filed a defence which proved to be false. Branson J took that fact into account in conjunction with other evidence which showed an intention on behalf of the respondent to conceal the identity of their suppliers to find 'a deliberate pattern of conduct by the respondents in which they recognised the illegality of the enterprise they are engaged in and actively sought to conceal it'. [46] I do not consider that the conduct of the respondent contemplated by subpara (ib) of s 115(4)(b) is referable to conduct of the defence in so far as it relates to procedural matters and matters whereby the applicants are put to the proof of their case, albeit unreasonably. I consider that these are matters more appropriately dealt with by an appropriate order for costs." In certain circumstances, the distinction may be a difficult one to apply and there is an obvious need to avoid double-counting. Nevertheless, I agree with the distinction identified by Goldberg J in Flags 2000 59 IPR 191. Fifthly, an award under s 115(4) of the Act can encompass damages which at common law would be aggravated damages and exemplary damages: Bailey 53 FCR at 113-114.


case_text: The applicant made a number of claims against the respondents in a proceeding issued in this Court. A judge of the Court made an order that issues of liability be determined separately from and prior to issues of quantum. I heard and determined the issues of liability. My reasons, which I will refer to as my liability reasons, are published in Futuretronics.com.au Pty Limited v Graphix Labels Pty Ltd [2007] FCA 1621. 2 On 22 November 2007, I made the following declarations: "1. The applicant is the owner of copyright in the artworks. 2. By the production and distribution of the brochure to the parties listed below the first respondent has infringed the applicant's copyright in the artworks in breach of s 36 of the Copyright Act 1968 (Cth): (i) Mr David Bartlett and Mr Boyd Dainton of Audion Australia on or about 10 October 2006; (ii) Mr Peter Batt of Fosh Australia in October 2006; (iii) Mr Waldo Latowski of Griffin Technology on 12 October 2006 3. The second respondent authorised the first respondent's said infringement of the applicant's copyright in the artworks in breach of s 36 of the Copyright Act 1968 (Cth).


case_text: In relation to the claim for damages under s 115(2) of the Act , the Court, in awarding damages for infringement of copyright, will have regard to similar considerations as attend the award of damages in tort: General Tire & Rubber Co v Firestone Tyre and Rubber Co Ltd [1976] RPC 197. The purpose of an award is to compensate the plaintiff for the loss suffered as a result of the defendant's infringement: Bailey v Namol Pty Ltd [1994] FCA 1401 ; (1994) 53 FCR 102 at 110-111.


case_title: Milpurrurra v Indofurn Pty Ltd (1994) 54 FCR 240


case_text: I am not satisfied that the applicant has established any loss which should be reflected in an award of damages under s 115(2) of the Act . An award of nominal damages is appropriate to vindicate the invasion of the applicant's proprietary right ( MJA Scientifics International Pty Ltd v S C Johnson and Son Pty Ltd (1998) 43 IPR 275 at 281 per Sundberg J) and I award the sum of $10.00. 17 In relation to the claim for additional damages under s 115(4) of the Act , it is appropriate to begin by making the following general observations. First, there is no need for me to consider if an award of additional damages can be made under s 115(4) if no damages are awarded under s 115(2) because I have awarded nominal damages under s 115(2) ( Polygram Pty Ltd v Golden Editions Pty Ltd (No 2) 38 IPR 451 at 459-461 per Lockhart J; MJA Scientifics at 283-284 per Sundberg J). Secondly, it is not necessary that there be a proportionate relationship between the additional damages awarded under subs (4) and the damages awarded under subs (2): Flags 2000 Pty Ltd v Smith (2003) 59 IPR 191 at 198 per Goldberg J. An award of additional damages under subs (4) is not dependent upon the adequacy or inadequacy of an award of damages under subs (2). Thirdly, the matters in subs (4)(b)(i)-(iv) inclusive are not preconditions to an award of additional damages. In other words, and using the flagrancy of the infringement as an example, the Court must have regard to the flagrancy of the infringement in determining whether to award additional damages, but it is not the case that additional damages can be awarded only if the breach involves a particular degree of flagrancy. Fourthly, in the recent case of Flags 2000 Goldberg J suggested that there is a distinction between conduct of a defendant after an infringement (or after being informed that he has allegedly infringed the plaintiff's copyright) and relevant to the substantive allegations against him on the one hand, and the defendant's conduct of his defence to an action for an infringement of copyright in relation to procedural matters on the other. The former matter is within the terms of s 115(4)(b)(ib) of the Act , whereas it has been suggested that the latter matter is a matter to be taken into account in determining the appropriate order as to costs. In Flags 2000 59 IPR at 201, [45]-[46] Goldberg J said: "[45] The applicants submitted that the insertion of subparas (ia) and (ib) was declaratory of the position which had existed prior to the amendments. There is substance in that submission as can be seen from cases such as Carson v John Fairfax & Sons [1993] HCA 31 ; (1992) 178 CLR 44 at 71 ; [1993] HCA 31 ; 113 ALR 577 at 597 and Microsoft Corp v Goodview Electronics Pty Ltd (2000) 49 IPR 578. However, the conduct taken into account in those cases was conduct which was relevant to the substantive allegations made against the respondents. For example, in the Microsoft case the respondent filed a defence which proved to be false. Branson J took that fact into account in conjunction with other evidence which showed an intention on behalf of the respondent to conceal the identity of their suppliers to find 'a deliberate pattern of conduct by the respondents in which they recognised the illegality of the enterprise they are engaged in and actively sought to conceal it'. [46] I do not consider that the conduct of the respondent contemplated by subpara (ib) of s 115(4)(b) is referable to conduct of the defence in so far as it relates to procedural matters and matters whereby the applicants are put to the proof of their case, albeit unreasonably. I consider that these are matters more appropriately dealt with by an appropriate order for costs." In certain circumstances, the distinction may be a difficult one to apply and there is an obvious need to avoid double-counting. Nevertheless, I agree with the distinction identified by Goldberg J in Flags 2000 59 IPR 191. Fifthly, an award under s 115(4) of the Act can encompass damages which at common law would be aggravated damages and exemplary damages: Bailey 53 FCR at 113-114.


case_text: In view of the above conclusions, it is not necessary for me to consider a submission made by the respondents that if there was any damage in this case it was to the goodwill of the applicant's business and such damage is not recoverable under s 115(2) of the Act . The respondents referred to Paterson Zochonis Ltd v Merfarken Packaging Ltd [1983] FSR 273 at 281-282 per Oliver LJ; at 287 per Fox J; at 294-295 per Goff LJ although that was quite a different case on the facts.


case_text: In my opinion, the infringements of copyright in this case were flagrant. Before 29 September 2006 the second respondent was employed by the applicant and he knew Ms W Hung, who was also an employee of the applicant, and he knew that she had produced the artworks on behalf of the applicant. He left the employ of the applicant and on 4 October 2006 he became an employee of the first respondent. He was responsible for producing the brochure on behalf of the first respondent and he knew the artworks on the brochure belonged to the applicant. Despite this knowledge, he went ahead and used them in a brochure designed to promote the first respondent's products. Whether he actually knew that the use of the applicant's artworks was an infringement of copyright is immaterial ( Pollock v J C Williamson Ltd [1923] VLR 225) ; the important point is that he knew the artworks were the applicant's artworks or, put a different way, that they belonged to the applicant. Although he attempted to say that he did not know he could not use the applicant's artworks because he was a "bit vague as to how all this worked" and that he had used samples with the brands of third parties before, I think he knew that he should not be using the artworks or, at least, was wilfully blind to that fact. As I said in my liability reasons there were unsatisfactory features of the second respondent's evidence (at [51]). As to what was said to be a practice in the printing industry of using other people's brands as illustrative of the work which can be done, it seems to me that it is one thing to use a sample showing a brand which announces itself as a brand of a well-known business; it is quite another for a previous employee of the applicant so shortly after he left the applicant's employ to use the artworks, which in no way announce themselves as belonging to the applicant, to promote his new employer's business. 21 It appears that the principals of the first respondent were prepared to leave, or largely leave, the production of the brochure to the second respondent. Mr Tallent was not able to shed any light on the production of the brochure with the applicant's artworks on it and the change to the second brochure, which it seems had taken place by 16 October 2006. He said that the second respondent would have been engaged "in most of that work and driving that". Mr Taylor said that the brochure was changed to remove the applicant's artworks and replace them with other artworks after he had received a telephone call from Mr Chojna complaining about the use of the applicant's artworks without its permission. He said that the second respondent probably made the change. 22 The respondents submitted that the infringements were few in number and that the evidence was that the first respondent did not intend to produce skins with the artworks on them for sale to customers. I accept the evidence that the first respondent did not intend to use the artworks on skins to be sold to customers.


case_title: Polygram Pty Ltd v Golden Editions Pty Ltd (No 2) 38 IPR 451


case_text: The meaning of "the flagrancy of the infringement" has been described in various ways. In Ravenscroft v Herbert and New English Library Limited [1980] RPC 193 Brightman J referred to it as "scandalous conduct, deceit and such like; it includes deliberate and calculated copyright infringement"; in Prior v Lansdowne Press Pty Ltd [1977] VR 65 at 70, Gowans J (at 70) referred to it as a "calculated disregard of the plaintiff's rights, or cynical pursuit of benefit"; and in Raben Footwear Pty Ltd v Polygram Records Inc (1997) 75 FCR 88 at 103 flagrancy was said to connote conduct which could probably be described as "glaring, notorious, scandalous" or "blatant". In Polygram at 461-462 Lockhart J said that flagrancy did not include mere mistakes or carelessness and that if the infringer mistakenly believed that he or she owned the relevant copyright, or acted in the bona fide belief that no copyright subsisted in the plaintiff's work then the conduct was not flagrant.