case_title: Ace Contractors & Staff Pty Ltd v Westgarth Development Pty Ltd [1999] FCA 728


case_outcome: cited

case_title: Skyring v Commissioner of Taxation , G72/1983 (unreported), 18 April 1984


case_text: On 6 July 1999 Sackville J in Ramsey v Skyring [1999] FCA 907 ; (1999) 164 ALR 378 made the following orders pursuant to Order 21, r 1 of the Federal Court Rules : 1. The respondent's motion to strike out the proceedings (that is, the application for an order contemplated by O 21 r 1) be dismissed; 2. The respondent shall not institute any proceedings in this court without the leave of the court; 3. Any proceedings currently instituted in this court by the respondent shall not be continued by the respondent without the leave of the court; 4. The respondent pay the applicant's costs of and incidental to the proceedings.' 14 His Honour at p 380 [2] made these observations: The applicant claims that the respondent is a "vexatious litigant", within the meaning of FCR O 21, r 1. The applicant relies on the fact that the respondent has instituted a large number of proceedings in this Court, each of which (according to the applicant) was commenced without reasonable grounds. The applicant says that in each proceeding the respondent, in one form or another, has sought, unsuccessfully, to challenge the legality of paper currency or coinage in use in Australia. Specifically, it is said that the respondent has "habitually and persistently" (to use the language of O 21, r 1) asserted that s 115 and other provisions of the Constitution prohibit the creation of legal tender in forms other than coins containing gold or silver, and that the provisions of the Reserve Bank Act 1959 (Cth) (Reserve Bank Act) and the Currency Act 1965 (Cth) (Currency Act) establishing or recognising paper money or coinage as legal tender are invalid. According to the applicant, these contentions have been conclusively and repeatedly rejected by the High Court, the Supreme Court of Queensland and this Court. In these circumstances, the applicant contends that the terms of O 21, r 1 have been satisfied and that the orders sought in the application should be made.' 15 At pp 382 389 [13] [50] Sackville J sets out the history of the various attempts made by Mr Skyring to ventilate his contention of a constitutional barrier against the issue by the Commonwealth of paper money as legal tender. See also a discussion of the steps taken by Mr Skyring recorded in the judgment of Toohey J in the High Court in Jones v Skyring [1992] HCA 39 ; (1992) 109 ALR 303. An appeal from the orders of Sackville J was dismissed by the Full Court ( Skyring v Ramsey [2000] FCA 774 per Ryan, O'Connor and Weinberg JJ) on 9 June 2000.


case_text: At pp 382 389 [13] [50] Sackville J sets out the history of the various attempts made by Mr Skyring to ventilate his contention of a constitutional barrier against the issue by the Commonwealth of paper money as legal tender. See also a discussion of the steps taken by Mr Skyring recorded in the judgment of Toohey J in the High Court in Jones v Skyring [1992] HCA 39 ; (1992) 109 ALR 303. An appeal from the orders of Sackville J was dismissed by the Full Court ( Skyring v Ramsey [2000] FCA 774 per Ryan, O'Connor and Weinberg JJ) on 9 June 2000.


case_title: Skyring v Ramsey [2000] FCA 774


case_text: In December 1984, Mr Skyring lodged with the Brisbane registry of the High Court six documents conveniently described as 'writs' five of which were directed to a different Commonwealth Government Minister and the sixth to a 'judge of the Federal Court' (Spender J) by which Mr Skyring sought to initiate proceedings to agitate 'a general attack upon the financial system' ( Re Skyring's Application (No. 2) (1985) 59 ALJR 561; Re Skyring (1985) 58 ALR 629 at p 631 per Deane J). In Mr Skyring's affidavit in support of an application for leave to issue those writs, Mr Skyring noted that the argument to be advanced in the proposed actions was in terms of 'the key items presented in my argument before McPherson J when my tax case was eventually heard on 19 August 1983 in the Queensland Supreme Court' and 'this present action is intended to initiate further corrective action to bring about appropriate amendments to legislation relating to the financial institutions themselves'. 19 His Honour, Justice Deane at p 633, made these observations: The overall attack remains one upon the Australian financial system and to some extent the Australian legal system. The objective of the attack is to obtain a general review and reform of the law of those areas. There are, however, two particular matters which emerge in the course of Mr Skyring's oral submissions to which I should make specific reference. These are: (1) A submission that the combined effect of a number of sections of the Constitution is to erect a barrier against the issue by the Commonwealth of paper money as legal tender. The sections of the Constitution upon which particular reliance is placed are ss 51 (xii),(xiii) and (xvi) and 115 . Mr Skyring also referred to ss 105 and 105A . Additionally, reference was made to the provisions of the Currency Act 1965 (Cth) dealing with coins. The argument, if accepted, would result in the invalidity of s 36(1) of the Reserve Bank Act 1959 (Cth) which provides that 'Australian notes are a legal tender throughout Australia'. (2) The basis upon which Mr Skyring seeks relief against 'the judge of the Federal Court' is alleged error by Spender J of the Federal Court of Australia in proceedings in the Federal Court by Mr Skyring against the Commissioner of Patents and Telecom Australia. As I followed Mr Skyring's oral submissions, the error into which Spender J is to have fallen is a failure to accept the argument referred to in (1) above. It is to be noted that the time for appealing from the judgment has expired. Mr Skyring frankly stated that one of the reasons for seeking to proceed by certiorari was that the time for appeal had expired. He was, however, at pains to stress that the matters which he wished to litigate went beyond the matters could be properly raised on such an appeal. I have come to a clear conclusion that there is no substance in the argument that there is a constitutional bar against the issue by the Commonwealth of paper money as legal tender. Nor, in my view, would there by any substance in an argument that the provisions of s 36(1) of the Reserve Bank Act 1959 are invalidated or overruled by the provisions of the Currency Act 1965 . That being so, I am unpersuaded that there is any substance in the proposed proceedings against Mr Justice Spender, nor am I persuaded that the proceedings by certiorari against Mr Justice Spender would in any event be appropriate. Leave to issue the writs must be refused. 20 On 9 July 1985, their Honours Mason, Wilson, Brennan and Dawson JJ dismissed an appeal from the orders of Deane J noting that 'in this appeal from Mr Justice Deane's decision the appellant claims that the writs were designed to establish a decision by the Court that the provisions of the Commonwealth Constitution do not authorise the issue of paper money as legal tender, that s 36(1) of the Reserve Bank Act 1959 (Cth) which so provides is invalid and that taxation is an infringement of property rights deriving from Magna Carta and therefore the Income Tax Assessment Act , in making provision for taxation, is invalid and unconstitutional'. The judgment is unreported although, of course, published by the Court. 21 In dismissing the appeal, their Honours said 'we are not persuaded that the judgment of Mr Justice Deane contains any error. We should say in addition that s 51(ii) confers power upon the Commonwealth Parliament to legislate with respect to taxation, that the exercise of that power extends to the imposition of taxation and its collection, even though it has the effect of requiring the person on whom taxation is levied to pay the tax out of property which he owns'. 23 In Re Skyring (1994) 68 ALJR 618, Dawson J considered an application by Mr Skyring for an order that leave be granted pursuant to Order 63, r 6 of the High Court Rules to commence proceedings for prerogative relief in relation to a number of matters and in all those proposed matters the argument Mr Skyring sought to agitate: '... relied upon the proposition that it is beyond the power of the Commonwealth parliament to legislate to make paper money legal tender. This in essence is the same argument as that put by the applicant in Re Skyring's Application [No. 2] (1985) 59 ALJR 561, which was rejected by Deane J. His judgment was confirmed on appeal by the Full Court. ... The matter was concluded, in the view of the Court, by s 51(xii) and (xiii) of the Constitution and s 36(1) of the Reserve Bank Act 1959 (Cth). It would, in my view, be an abuse of process to allow the applicant to re-litigate a matter which has already been decided adversely to him'. (Mason J at pp 618 and 619). 26 Assuming for the moment that a power to re-open an entered and therefore perfected order of the Court in the exercise of its appellate jurisdiction is conferred upon the Court by the provisions of the Federal Court of Australia Act 1976 (Cth), leave to file a motion (referable to the Full Court) to re-open the judgment must be refused for the following reasons. The issues relevant to the questions properly raised on appeal by Mr Skyring have been determined according to law. The order was made on 18 April 1984 and entered on 11 May 1984, over 23 years ago. The application made before the High Court by motion was not progressed. In my view, the arguments Mr Skyring makes and seeks to further agitate on the various grounds which I have described as his 'underlying contentions' including his proposition that s 36(2) of the Reserve Bank Act 1959 (Cth) is also invalid, are unarguable. Justices of the High Court have considered the essential integers of these contentions in various contexts with the result that the arguments have been found, to the extent of that examination, to be of no substance. Although a question of the fate of the monies paid by Mr Skyring by way of security in this appeal remains outstanding (as does the question of the reserved costs of that application) that question is not a vehicle for agitating the merits of the underlying contentions. Although Mr Skyring quite properly has a clear interest in the resolution of the two outstanding matters, the appeal proceeding (and matters relevant or irrelevant to the grounds of appeal argued by Mr Skyring before Smithers, Northrop and Beaumont JJ) is otherwise dispositively concluded in a way not shown to attract 'exceptional circumstances' supporting an exercise of a power to disturb a perfected order of the Full Court and re-open such an order and allow argument on the merits of any particular proposition including the underlying contentions. Most recently, Mr Skyring sought leave before the Federal Court to apply for annulment of his bankruptcy and removal of his trustee. Mr Skyring contended that the bankruptcy is unlawful and the argument as to unlawfulness rested upon a challenge to the constitutional validity of the provisions of the Reserve Bank Act 1959 (Cth) authorising the issue of bank notes as legal tender. In dismissing both motions on 16 June 2004, Dowsett J said this: He [Mr Skyring] argues that that placitum 51(xiii) of the Constitution which authorises the Commonwealth Parliament to make laws concerning banking and the issue of paper money, does not authorise the issue of bank notes as lawful tender. It is difficult to see how such an argument can be maintained. It implies that the words 'paper money' means something quite different from their natural meaning. In any event, the issue was considered by Deane J in Re Skyring's Application (No. 2) (1985) 59 ALJR 561. His Honour concluded that there was no substance in the point although it is true, as Mr Skyring has pointed out that his Honour did not give reasons. In my view, the matter is beyond argument. (In the Matter of Skyring [2004] FCA 827 [2]).


case_title: In the Matter of an Application by Skyring (High Court, B11 of 1985), 9 July 1985


case_text: In Skyring v Federal Commissioner of Taxation (1992) ATR 84, the Full Court of the Federal Court (Gummow, Einfeld and Heerey JJ) heard an appeal by Mr Skyring from a decision of Pincus J dismissing Mr Skyring's application in October 1990 for annulment of his bankruptcy. In that application and on appeal, Mr Skyring again agitated his contention that by s 36 of the Reserve Bank Act 1959 (Cth), the Commonwealth has made notes rather than gold and silver coin legal tender in payment of debts throughout Australia in contravention of s 115 of the Constitution . Mr Skyring also contended that the power of the Commonwealth Parliament to make laws for the peace, order and good government of the Commonwealth with respect to currency, coinage and legal tender contain words of limitation which render it not possible for the Commonwealth Parliament to enact a valid law for the issue and circulation of paper money and the rendering of paper money legal tender in the payment of debts, as legal tender must consist of coins of gold and silver value not simply paper of face value. Their Honours at p 87 said this: ... However, the expression does not contain any such words of limitation: R v Foster; Ex parte Eastern and Australian Steamship Co. Ltd [1959] HCA 10 ; (1959) 103 CLR 256 at 307; Union Steamship Co. of Australia Pty Ltd v King [1988] HCA 55 ; (1988) 166 CLR 1 at 10; 82 ALR 43. The parliament has legislated for the issue of paper money as legal tender and there is no constitutional bar against it having done so. 24 Section 51(xii) confers power upon the Commonwealth Parliament to make laws with respect to 'currency, coinage and legal tender' and by s 51(xiii), laws with respect to '... the issue of paper money'. The Australian Notes Act 1910 (Cth), Part VII of the Commonwealth Bank Act 1911 (Cth), Part VI of the Commonwealth Bank Act 1945 (Cth) and Part V of the Reserve Bank Act 1959 (Cth) provide for the issue, re-issue and cancellation of 'Australian notes'. Section 34 of the Reserve Bank Act provides for the printing by or under the authority of the Reserve Bank of such notes. Section 35 provides for denominations of notes and s 36(1) provides that 'Australian notes are a legal tender throughout Australia'. Section 36(2) provides for a conversion of a note in a denomination of shillings or pounds to a denomination in decimal currency (for example, 10 shillings is a denomination of one dollar; one pound is a denomination of two dollars). Section 16 of the Currency Act 1965 (Cth) provides that tender of payment of money is a legal tender if made in coins made and issued under the Currency Act and the coins are of 'current weight' as defined. A tender of payment by coins is however legal tender subject to particular limitations (for example, if the tender is made up of coins that have a denomination of five cents, 10 cents, 20 cents or 50 cents or coins of two or more of those denominations, the tender will be a 'legal tender' for payment of an amount not exceeding five dollars. In the case of coins of a denomination greater than fifty cents but less than ten dollars, the limit is 10 times the face value of a coin of the denomination concerned). 'Currency' means the acceptance, reception, passing or circulation from hand to hand, from person to person, of metallic money or of government or bank notes as substitute for metallic money. 'Coinage' is the act or process of converting metal into money for circulation. The 'coining and legitimation of money' was one of the exclusive prerogatives of the Crown yet regulated by Act of Parliament from the 'earliest times'. 'Legal tender' is the act of tendering, in the performance of a contract, or in the satisfaction of a claim, that which the law prescribes or permits and at such time and place as the law prescribes or permits. As to these terms, see Quick and Garran , The Annotated Constitution of the Australian Commonwealth , (1901) pp 572-6. The provisions of the Reserve Bank Act and the Currency Act are both properly characterised as a law with respect to an enumerated head of power within s 51 of the Constitution . The power to make laws with respect to those heads of power is to be given full expression and is not subject to the limitation Mr Skyring contends for ( Skyring v Federal Commissioner of Taxation (supra)). The contention that the provisions of the particular statutes are constitutionally invalid is, in my view, unarguable. 25 Mr Skyring says that he seeks to re-open the final order of the Full Court as there are the two outstanding matters to be addressed and accordingly the appeal proceeding remains on foot and is not 'finalised'; Mr Skyring was not able to progress an appeal before the High Court to test the merits in the appeal of his constitutional contentions; his underlying arguments as to constitutionality have therefore never been addressed; the outstanding costs order, its enforcement and the final resolution of the disposition of the monies paid by way of security entitles him to expose further his principal contentions; he has suffered and continues to suffer prejudice; and, 'exceptional circumstances' subsist which warrant re-opening the Full Court's order to enable the constitutional points to be argued. Those circumstances are said to be the prejudice suffered by Mr Skyring, the injustice thus arising and the broader public interest in determining the validity of his contentions.


case_title: Re Skyring (1994) 68 ALJR 618

case_text: In Re Skyring (1994) 68 ALJR 618, Dawson J considered an application by Mr Skyring for an order that leave be granted pursuant to Order 63, r 6 of the High Court Rules to commence proceedings for prerogative relief in relation to a number of matters and in all those proposed matters the argument Mr Skyring sought to agitate: '... relied upon the proposition that it is beyond the power of the Commonwealth parliament to legislate to make paper money legal tender. This in essence is the same argument as that put by the applicant in Re Skyring's Application [No. 2] (1985) 59 ALJR 561, which was rejected by Deane J. His judgment was confirmed on appeal by the Full Court. ... The matter was concluded, in the view of the Court, by s 51(xii) and (xiii) of the Constitution and s 36(1) of the Reserve Bank Act 1959 (Cth). It would, in my view, be an abuse of process to allow the applicant to re-litigate a matter which has already been decided adversely to him'. (Mason J at pp 618 and 619).


case_title: In the Matter of Skyring [2004] FCA 827

case_text: Assuming for the moment that a power to re-open an entered and therefore perfected order of the Court in the exercise of its appellate jurisdiction is conferred upon the Court by the provisions of the Federal Court of Australia Act 1976 (Cth), leave to file a motion (referable to the Full Court) to re-open the judgment must be refused for the following reasons. The issues relevant to the questions properly raised on appeal by Mr Skyring have been determined according to law. The order was made on 18 April 1984 and entered on 11 May 1984, over 23 years ago. The application made before the High Court by motion was not progressed. In my view, the arguments Mr Skyring makes and seeks to further agitate on the various grounds which I have described as his 'underlying contentions' including his proposition that s 36(2) of the Reserve Bank Act 1959 (Cth) is also invalid, are unarguable. Justices of the High Court have considered the essential integers of these contentions in various contexts with the result that the arguments have been found, to the extent of that examination, to be of no substance. Although a question of the fate of the monies paid by Mr Skyring by way of security in this appeal remains outstanding (as does the question of the reserved costs of that application) that question is not a vehicle for agitating the merits of the underlying contentions. Although Mr Skyring quite properly has a clear interest in the resolution of the two outstanding matters, the appeal proceeding (and matters relevant or irrelevant to the grounds of appeal argued by Mr Skyring before Smithers, Northrop and Beaumont JJ) is otherwise dispositively concluded in a way not shown to attract 'exceptional circumstances' supporting an exercise of a power to disturb a perfected order of the Full Court and re-open such an order and allow argument on the merits of any particular proposition including the underlying contentions. Most recently, Mr Skyring sought leave before the Federal Court to apply for annulment of his bankruptcy and removal of his trustee. Mr Skyring contended that the bankruptcy is unlawful and the argument as to unlawfulness rested upon a challenge to the constitutional validity of the provisions of the Reserve Bank Act 1959 (Cth) authorising the issue of bank notes as legal tender. In dismissing both motions on 16 June 2004, Dowsett J said this: He [Mr Skyring] argues that that placitum 51(xiii) of the Constitution which authorises the Commonwealth Parliament to make laws concerning banking and the issue of paper money, does not authorise the issue of bank notes as lawful tender. It is difficult to see how such an argument can be maintained. It implies that the words 'paper money' means something quite different from their natural meaning. In any event, the issue was considered by Deane J in Re Skyring's Application (No. 2) (1985) 59 ALJR 561. His Honour concluded that there was no substance in the point although it is true, as Mr Skyring has pointed out that his Honour did not give reasons. In my view, the matter is beyond argument. (In the Matter of Skyring [2004] FCA 827 [2]).


case_text: The Federal Court of Australia is created by s 5 of the Federal Court of Australia Act 1976 (Cth) ('the Act') and the Court is 'a superior court of record and is a court of law and equity'. Those words of extension 'and a court of law and equity' are not part of the formulation seen in s 21(2) of the Family Law Act 1975 (Cth) in respect of the Family Court or in s 98 of the Conciliation and Arbitration Act 1904 (Cth) concerning the Commonwealth Industrial Court, considered in R v Forbes ; Ex parte Bevan [1972] HCA 34 ; (1972) 127 CLR 1. The Court is not a court of what might be described as essentially a court of single subject matter or a court of specialist subject matter such as the Family Court or an Industrial Court. The Court has such original jurisdiction as is vested in it by laws made by the Parliament (s 19(1) of the Act; s 77(i) of the Constitution (having regard to ss 75 and 76 of the Constitution )). The Court is invested with jurisdiction by hundreds of Acts of the Commonwealth Parliament (171 of the 'principal Acts' are set out in Appendix 4 to the Annual Report of the Federal Court of Australia 2005-2006; the 'Notice to Practitioners Conduct of Admiralty & Maritime Work December 2005' identifies 24 Acts conferring jurisdiction in matters relating to admiralty and maritime work of the Court) in a broad range of subject matter attracting almost every facet of the exercise of Commonwealth legislative power which in turn, touches the rights, entitlements and obligations of citizens in matters within the field of that broad subject matter. In that sense, the Court's jurisdiction is broad and in that sense only, general. The Court is not, however, a Court of unlimited jurisdiction. It is entirely statutory. It is invested with jurisdiction in 'matters' whose content derives from the statute conferring jurisdiction (see generally, Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510; Re McBain; Ex parte Aust. Bishops [2002] HCA 16 ; (2002) 188 ALR 1). Importantly, the Court exercises the judicial power of the Commonwealth (s 71 of the Constitution ) as a Chapter III federal court. The Court thus exercises the judicial power of our national polity. When the Court exercises judicial power, it does so to quell controversies arising within the limits of the Court's jurisdiction although it exercises an accrued jurisdiction to determine all matters in controversy of which a federal claim forms part including those parts of a controversy arising under claims recognised by the common law or derived from legislation of a State provided there is a demonstrated unifying or 'common substratum of fact'. The exercise of the accrued jurisdiction means that litigants, particularly citizens (either corporate or individual), might resolve all matters in controversy in one forum as part of a single 'justicable controversy' and so avoid a citizen wasting time and financial resources in framing another controversy in another forum concerning the same subject matter. Of course, questions will sometimes necessarily arise as to whether there is a single 'justicable controversy'; whether a particular claim is separate, distinct and severable and whether a particular claim attracts an element of Federal jurisdiction. A non-Federal claim or matter, however, does not cease to be within the jurisdiction of the Court should the Federal question be decided adversely to the applicant, be struck out or found unnecessary to determine. At the threshold, the Court although deciding in a particular case that its jurisdiction is not enlivened, nevertheless has jurisdiction to decide it has no jurisdiction. 33 Although references occur in the Authorities to the 'inherent jurisdiction' of the Court ( McDermott v Richmond Sales (in liq) [2006] FCA 248 , per Kenny J; Plantagenet Wines v Lyon Nathan Wine Group Australia Ltd [2006] FCA 247 , per Sciopis J) the term is an inaccurate description of the 'incidental and necessary power' exercised by a statutory court ( DJL v Central Authority [2000] HCA 17 ; (2000) 201 CLR 226 at 241[25], per Gleeson CJ, Gaudron J, McHugh, Gummow and Hayne JJ) as the term 'inherent jurisdiction' is a reference to a jurisdiction subsisting 'without the aid of any authorising provisions' ( R v Forbes ; ex parte Bevan per Menzies J, at p 7). The distinction between a jurisdiction or power derived by implication from statutory provisions and a jurisdiction drawn from the 'well of undefined powers available to the common law courts at Westminster'( Grassby v The Queen [1989] HCA 45 ; (1989) 168 CLR 1 at 16) is 'fundamental' ( DJL v Central Authority [26]).


case_text: The Federal Court of Australia is created by s 5 of the Federal Court of Australia Act 1976 (Cth) ('the Act') and the Court is 'a superior court of record and is a court of law and equity'. Those words of extension 'and a court of law and equity' are not part of the formulation seen in s 21(2) of the Family Law Act 1975 (Cth) in respect of the Family Court or in s 98 of the Conciliation and Arbitration Act 1904 (Cth) concerning the Commonwealth Industrial Court, considered in R v Forbes ; Ex parte Bevan [1972] HCA 34 ; (1972) 127 CLR 1. The Court is not a court of what might be described as essentially a court of single subject matter or a court of specialist subject matter such as the Family Court or an Industrial Court. The Court has such original jurisdiction as is vested in it by laws made by the Parliament (s 19(1) of the Act; s 77(i) of the Constitution (having regard to ss 75 and 76 of the Constitution )). The Court is invested with jurisdiction by hundreds of Acts of the Commonwealth Parliament (171 of the 'principal Acts' are set out in Appendix 4 to the Annual Report of the Federal Court of Australia 2005-2006; the 'Notice to Practitioners Conduct of Admiralty & Maritime Work December 2005' identifies 24 Acts conferring jurisdiction in matters relating to admiralty and maritime work of the Court) in a broad range of subject matter attracting almost every facet of the exercise of Commonwealth legislative power which in turn, touches the rights, entitlements and obligations of citizens in matters within the field of that broad subject matter. In that sense, the Court's jurisdiction is broad and in that sense only, general. The Court is not, however, a Court of unlimited jurisdiction. It is entirely statutory. It is invested with jurisdiction in 'matters' whose content derives from the statute conferring jurisdiction (see generally, Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510; Re McBain; Ex parte Aust. Bishops [2002] HCA 16 ; (2002) 188 ALR 1). Importantly, the Court exercises the judicial power of the Commonwealth (s 71 of the Constitution ) as a Chapter III federal court. The Court thus exercises the judicial power of our national polity. When the Court exercises judicial power, it does so to quell controversies arising within the limits of the Court's jurisdiction although it exercises an accrued jurisdiction to determine all matters in controversy of which a federal claim forms part including those parts of a controversy arising under claims recognised by the common law or derived from legislation of a State provided there is a demonstrated unifying or 'common substratum of fact'. The exercise of the accrued jurisdiction means that litigants, particularly citizens (either corporate or individual), might resolve all matters in controversy in one forum as part of a single 'justicable controversy' and so avoid a citizen wasting time and financial resources in framing another controversy in another forum concerning the same subject matter. Of course, questions will sometimes necessarily arise as to whether there is a single 'justicable controversy'; whether a particular claim is separate, distinct and severable and whether a particular claim attracts an element of Federal jurisdiction. A non-Federal claim or matter, however, does not cease to be within the jurisdiction of the Court should the Federal question be decided adversely to the applicant, be struck out or found unnecessary to determine. At the threshold, the Court although deciding in a particular case that its jurisdiction is not enlivened, nevertheless has jurisdiction to decide it has no jurisdiction.


case_title: Re McBain; Ex parte Aust. Bishops [2002] HCA 16 ; (2002) 188 ALR 1


case_text: Although references occur in the Authorities to the 'inherent jurisdiction' of the Court ( McDermott v Richmond Sales (in liq) [2006] FCA 248 , per Kenny J; Plantagenet Wines v Lyon Nathan Wine Group Australia Ltd [2006] FCA 247 , per Sciopis J) the term is an inaccurate description of the 'incidental and necessary power' exercised by a statutory court ( DJL v Central Authority [2000] HCA 17 ; (2000) 201 CLR 226 at 241[25], per Gleeson CJ, Gaudron J, McHugh, Gummow and Hayne JJ) as the term 'inherent jurisdiction' is a reference to a jurisdiction subsisting 'without the aid of any authorising provisions' ( R v Forbes ; ex parte Bevan per Menzies J, at p 7). The distinction between a jurisdiction or power derived by implication from statutory provisions and a jurisdiction drawn from the 'well of undefined powers available to the common law courts at Westminster'( Grassby v The Queen [1989] HCA 45 ; (1989) 168 CLR 1 at 16) is 'fundamental' ( DJL v Central Authority [26]).


case_title: Plantagenet Wines v Lyon Nathan Wine Group Australia Ltd [2006] FCA 247


case_text: Although references occur in the Authorities to the 'inherent jurisdiction' of the Court ( McDermott v Richmond Sales (in liq) [2006] FCA 248 , per Kenny J; Plantagenet Wines v Lyon Nathan Wine Group Australia Ltd [2006] FCA 247 , per Sciopis J) the term is an inaccurate description of the 'incidental and necessary power' exercised by a statutory court ( DJL v Central Authority [2000] HCA 17 ; (2000) 201 CLR 226 at 241[25], per Gleeson CJ, Gaudron J, McHugh, Gummow and Hayne JJ) as the term 'inherent jurisdiction' is a reference to a jurisdiction subsisting 'without the aid of any authorising provisions' ( R v Forbes ; ex parte Bevan per Menzies J, at p 7). The distinction between a jurisdiction or power derived by implication from statutory provisions and a jurisdiction drawn from the 'well of undefined powers available to the common law courts at Westminster'( Grassby v The Queen [1989] HCA 45 ; (1989) 168 CLR 1 at 16) is 'fundamental' ( DJL v Central Authority [26]). 38 The right of appeal to the Full Court of the Court is conferred by the Act and the terms of the statutory grant determine the nature of the appeal 'and consequential matters' ( DJL v The Central Authority [40]) and those matters include 'the susceptibility of orders made by the Court in its appellate jurisdiction to re-opening after they have been entered ( DJL [40]). Although the Federal Court, as a court of broadly invested jurisdiction across the subject matter of the Commonwealth's legislative power, might find within its jurisdiction powers necessarily implied by reason of the conjunction of the statutory structure creating the Court, its role and sources of jurisdiction and the description of the Court as a superior Court of record and a court of law and equity, as compared with a Court of single or specific subject matter, the considerations at [45], [46] and [47] of DJL are, in my view, decisive of the power of the Court to re-open a judgment and orders of the Full Court especially having regard to s 73 of the Constitution and provisions in the Act conferring on the High Court a jurisdiction to hear and determine (s 33(1)) appeals from judgments of the Full Court with special leave of the High Court (s 33(3)). 39 The observations are these: 45 The Family Law Act in its text and structure provides no express conferral of the power sought to be exercised in the present case. Nor is there an inherent power by reason of the description in the statute creating the court of it as 'a superior court of record'. Further, no such power is derived by necessary implication from the statutory structure, in particular from the exercise of the appellate jurisdiction conferred by Pt X of the Family Law Act . 46 A power in the Full Court of the nature for which the appellant contends is not to be found by necessary implication from Ch III of the Constitution . Rather, the Constitution itself deals with the perceived injustice of which the appellant complains in the federal court system. Complaints that orders made by the Full Court should be set aside for error of law, apparent in the reasons for judgment, are to be vindicated through the exercise by this Court of its power conferred by s 73 of the Constitution . 47 The Family Court is a federal court within the meaning of s 73(ii) of the Constitution . Thus, this Court has jurisdiction to hear and determine appeals from all judgments, decrees, orders and sentences of the Family Court with such exceptions and subject to such regulations as the Parliament prescribes. An appeal lies from a decree of the Family Court exercising appellate jurisdiction by special leave of this Court (s 95(a)). ...


case_title: Grassby v The Queen [1989] HCA 45 ; (1989) 168 CLR 1


case_text: There is no provision of the Act or rules made under the Act which expressly confer a power in the Court to set aside an order of the Court in the exercise of its appellate jurisdiction once entered. Order 35, r 7(2) is consistent with no empowering provision of the Act conferring an express power to set aside and re-open a perfected order of the Full Court of this Court. Once perfected, the order is beyond recall ( Bailey v Marinoff [1971] HCA 49 ; (1971) 125 CLR 529 at 530).


case_title: Pantzer v Wenkart BC [2007] 01482, (unreported), 13 March 2007

case_text: See also Pantzer v Wenkart BC [2007] 01482 per Black CJ, Ryan and Moore JJ and particularly Black CJ at [4] [7].


case_text: Accordingly, there is no power in the Federal Court to re-open orders of the Court in the exercise of its appellate jurisdiction once perfected by entry. Since there is no power , no question of exceptional circumstances or extraordinary circumstances or any other circumstance irrespective of the language of emphasis that might be adopted, arises. In this case, none are demonstrated in any event ( Autodesk Inc. and Another v Dyason and Others [No. 2] [1993] HCA 6 ; (1993) 176 CLR 300 at 303 per Mason CJ 'What must emerge, in order to enliven the exercise of the jurisdiction [by the High Court in respect of an earlier decision of that Court], is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the parties seeking the re-hearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases'; '... it is a jurisdiction to be exercised cautiously, bearing in mind the public interest in the finality of litigation', per Dawson J at p 317). 42 Accordingly, the source of the power to achieve the objective of the attainment of justice between parties to a particular controversy, in a meritorious case, is through the exercise by the High Court of the appellate power conferred upon that Court exercised with the special leave of that Court. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate: Dated: 2 October 2007 Solicitor for the appellant in the proceeding: Self represented Counsel for the Respondents in the proceeding: Mr Martin Hanson Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 27 September 2007 Date of Judgment: 2 October 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1526.html


case_outcome: considered

case_text: The case for the Commission was, and remains, that the mischief involved is similar to that which was disclosed in Trade Practices Commission v Cue Design Pty Ltd & Anor (1996) 85 A Crim R 500. So it is that the submission of the Commission is that the following passage from the reasons for judgment in that case, at page 505, is apposite: What I need to determine, for the purpose of assessing penalty, is Cue's motive in involving itself in the dual-priced swing tags in the manner in which it did. If [the product manager] truthfully stated that it did not occur to her that members of the buying public would infer from the two prices that the garments had been on sale at the higher prices for any substantial period of time then she is either very naive or recklessly indifferent to the perceptions of the buying public. 16 Then a little later : In my opinion, the natural and probable consequence of a dual-priced swing tag is that members of the buying public would assume that the garment had previously been offered for sale at the higher of the two prices and was now available at the lower price. 17 Then a little later still, at page 508: I regard the conduct of the defendants as serious breaches of the TPA. It was conduct that preyed on the gullibility of the public. 19 The submission has been made on behalf of the Corporate Defendant that this particular feature of the case, which is not challenged by the Commission in terms of the factual accuracy of the response, is a matter going to mitigation in the sense that this is not a case where a diamond of at least a particular comparability in terms of type had never been offered for sale. I agree, and I do take that into account in mitigation of penalty. That is not to say, however, that there is not a discrete vice revealed by the conduct of the same ilk as that revealed in the Cue case. 20 So far as penalty is concerned, one is constrained to have regard to particular factors by the terms of s 16A of the Crimes Act 1914 (Cth) ("Crimes Act") . Other judges of this Court have taken the view that the factors listed in s 16A(2) of the Crimes Act are not exhaustive of considerations that are relevant in the imposition of penalty in respect of a Federal offence. I respectfully agree. In particular, one does not see, in s 16A , a reference to general deterrence as a sentencing consideration, nor does one see reference to having regard to the objects of the statute which makes provision for the particular Federal offence. 21 In this instance, it is relevant to recall that a particular purpose of the Trade Practices Act is consumer protection. Further, offences against the Trade Practices Act are not always easy to detect or, at least, insofar as they are detected, involve a considerable investment in public funds in their investigation and prosecution. The Trade Practices Act also represents a value judgement by the Australian Parliament as to particular standards of commercial morality that should obtain in our country. I bear all of these factors in mind in relation to sentencing, apart from having regard to s 16A(2), list of factors.


case_text: I note that in Australian Competition and Consumer Commission v Chubb Security Australia Proprietary Limited [2004] FCA 1750 , 30 December 2004, under the heading "Parity", Bennett J, with respect, helpfully, surveyed a number of authorities which dealt with the question of penalty in the context of that case. There was some submission made to me that a like exercise might be undertaken in this case by reference to the circumstances of and the sentences imposed in Australian Competition and Consumer Commission v Skippy Australia Proprietary Limited [2006] FCA 1343 , and Australian Competition and Consumer Commission v Allans Music Group Proprietary Limited [2002] FCA 1552.


case_text: I note that in Australian Competition and Consumer Commission v Chubb Security Australia Proprietary Limited [2004] FCA 1750 , 30 December 2004, under the heading "Parity", Bennett J, with respect, helpfully, surveyed a number of authorities which dealt with the question of penalty in the context of that case. There was some submission made to me that a like exercise might be undertaken in this case by reference to the circumstances of and the sentences imposed in Australian Competition and Consumer Commission v Skippy Australia Proprietary Limited [2006] FCA 1343 , and Australian Competition and Consumer Commission v Allans Music Group Proprietary Limited [2002] FCA 1552. 30 It seems to me, though, that the circumstances of this case have a uniqueness which limits the utility of that exercise. I have noted, however, and see force in the submission made on behalf of the Corporate Defendant, that so far as the Allans Music case is concerned, this ought not be approached on the basis that one is sentencing a defendant who has demonstrated market power. Equally, I see force in the submission that there was an additional aggravating quality in the Skippy case, lent by the threat posed to the safety of children by the nature of the conduct in respect of the product in question. 36 It seems to me that were I to impose individual penalties in this case, of an order that would reflect a proportion of the maximum, the aggregate result would be out of all relationship with the gravity of the criminal conduct, having regard to the totality principle. That being so, I have, in reflecting upon the application of s 4K and that totality principle, come to a view that I ought to impose but one penalty and that that penalty should be $220,000. In coming to that view, I have considered those cases in respect of penalty to which I've referred already, namely, the Skippy case and the Allen's Music case although, as I have observed, it seems to me that there is a uniqueness about this case which does limit the utility, even in a proportionality exercise. 37 The submission that was made on behalf of the Commission is that a short time ought to be allowed in respect of the payment of the penalty by way of fine. One aspect of that short tine that was put forward was 14 days, although, I did not detect any particular rigidity in that reference, as opposed to the submission that it should not be so long as to allow the Defendant anything more than a reasonable opportunity to ascertain whether or not it was indeed in a position to meet the amount of the fine. The submission made on behalf of the Defendant was that one ought to allow one month. Given the amount of the fine that I have come to regard as appropriate and the facts - little though they may be - that are known to the Court in relation to the Corporate Defendant, it would be in the interests of justice to allow that slightly longer period of one month. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 28 July 2008 Counsel for the Applicant: Mr Boddice S.C. Counsel for the Applicant: Ms Mellifont Solicitor for the Applicant: Commonwealth Director of Public Prosecutions Counsel for the Respondents: Mr Walker S.C. Counsel for the Respondents: Mr McCafferty Solicitor for the Respondents: Nyst Lawyers Dates of Hearing: 7, 8 & 9 July 2008 Date of Judgment: 9 July 2008 Schedule "A" Count for First Defendant Date of Offence Newspaper Invoice date & number Stock 1 17 January 2003 Heard Sun, Melbourne. CB147 9/1/03 AHA001 3 " " CB152 15/1/03 DC245 5 " " CB369 30/12/02 CBD013 7 " " CB167 30/1/03 YH006 9 24 January 2003 Daily Telegraph, Sydney CB147 9/1/03 AHA008 11 " " CB152 15/1/03 DC245 13 " " CB369 30/12/02 CBD006 15 " " CB167 30/1/03 YH002 17 26 January 2003 Sunday Telegraph, Sydney CB147 9/1/03 AHA006 19 " " CB152 15/1/03 DC245 21 " " CB369 30/12/02 CBD005 23 " " CB167 30/1/03 YH004 25 21 February 2003 West Australian, Perth CB147 9/1/03 AHA014 27 " " CB168 8/1/03 YH010 29 " " CB166 23/1/03 RH008 31 " " CB165 22/1/03 ELE039 33 " " CB156 28/1/03 DC012959 35 1 March 2003 West Australian, Perth CB187 6/2/03 AHA029 37 " " CB168 8/1/03 YH011 39 " " CB166 23/1/03 RH003 41 " " CB165 22/1/03 ELE034 43 " " CB156 28/1/03 DC013118 45 8 March 2003 The Advertiser, Adelaide CB187 6/2/03 AHA027 47 " " CB156 22/1/03 DC012958 49 " " CB163 21/2/03 ELE056 * No need to elect. Charge as is. 51 " " CB166 23/1/03 RH019 53 " " CB167 30/1/03 YH007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1103.html


case_text: I note that in Australian Competition and Consumer Commission v Chubb Security Australia Proprietary Limited [2004] FCA 1750 , 30 December 2004, under the heading "Parity", Bennett J, with respect, helpfully, surveyed a number of authorities which dealt with the question of penalty in the context of that case. There was some submission made to me that a like exercise might be undertaken in this case by reference to the circumstances of and the sentences imposed in Australian Competition and Consumer Commission v Skippy Australia Proprietary Limited [2006] FCA 1343 , and Australian Competition and Consumer Commission v Allans Music Group Proprietary Limited [2002] FCA 1552. 30 It seems to me, though, that the circumstances of this case have a uniqueness which limits the utility of that exercise. I have noted, however, and see force in the submission made on behalf of the Corporate Defendant, that so far as the Allans Music case is concerned, this ought not be approached on the basis that one is sentencing a defendant who has demonstrated market power. Equally, I see force in the submission that there was an additional aggravating quality in the Skippy case, lent by the threat posed to the safety of children by the nature of the conduct in respect of the product in question.


case_title: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 70 IPR 146 (2006) 236 ALR 720

case_text: It is well established that a cause of action for the recovery of damages under either ss 82 or 87 of the Trade Practices Act is not one capable of assignment. The relevant authorities were summarised by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 at [50]-[52]. They are Park v Allied Mortgage Corporation Ltd (1993) ATPR (Digest) 46-105 at 53,467, Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd [1994] FCA 814 at [18] , Pritchard v Racecage Pty Ltd (1997) 72 FCR 203 at 218 and Chapman v Luminis (No 4) [2001] FCA 1106 ; (2001) 123 FCR 62 at [204] - [207] .


case_title: Park v Allied Mortgage Corporation Ltd (1993) ATPR (Digest) 46-105


case_title: Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd [1994] FCA 814


case_title: Pritchard v Racecage Pty Ltd (1997) 72 FCR 203


case_outcome: followed

case_text: The principles governing the assignability of causes of action in tort and equity are discussed in Meagher, Gummow and Lehane Equity Doctrines and Remedies , 4 th ed, Butterworths, 2002 pp 278-283. Of fundamental importance is the principle that, as a right to sue for damages for tort is merely a bare right of action, and not itself property, a purported assignment of a cause of action for damages for tort is not legally effective: Poulton v The Commonwealth [1952] HCA 70 ; (1952) 89 CLR 540 per Williams, Webb and Kitto JJ at 602. Their Honours' observations in Poulton were dicta, and arguably not in conformity with later observations of the House of Lords in Trendtex . In the latter case, some of their Lordships observed (also dicta) that although it remained a fundamental principle of English law that a bare right to litigate is not capable of assignment, an exception exists in the case of an assignee with a genuine commercial interest in taking and enforcing the assignment for his own benefit. That principle was subsequently applied by the House of Lords, in relation to an assignment of a cause of action for damages in tort, in Giles v Thompson [1994] 1 AC 142. 116 In Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2004] NSWSC 1041 ; (2004) 220 ALR 267, McDougall J identified a number of first instance judgments, some applying and some declining to apply the Trendtex principle in Australia. In the result, although minded to favour the adoption of the Trendtex principle with respect to the assignability of causes of action in contract, his Honour acknowledged the continuing force and application of the observations in Poulton in relation to the assignability of causes of action in tort. 119 It is apparent, therefore, that the statement of principle by Williams, Webb and Kitto JJ in Poulton retains its authority. As commented by Meagher et al, op cit at p 281, in respect of those first instance decisions that purport to favour adoption of the principles stated in Trendte x in preference to that in Poulton : The difficulty is that the proposition urged is inconsistent with Poulton v Commonwealth ... and it is not easy for courts below the High Court legitimately to depart from the considered dicta of three High Court Justices.


case_outcome: applied

case_text: In Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2004] NSWSC 1041 ; (2004) 220 ALR 267, McDougall J identified a number of first instance judgments, some applying and some declining to apply the Trendtex principle in Australia. In the result, although minded to favour the adoption of the Trendtex principle with respect to the assignability of causes of action in contract, his Honour acknowledged the continuing force and application of the observations in Poulton in relation to the assignability of causes of action in tort. 117 Subsequent to Rickard Constructions , passing reference was made to the issue by Finkelstein J in TS & B Retail Systems Pty Ltd v 3Fold Resources Pty Ltd (No. 3) (2007) 158 FCR 444 at [78]-[81]. Once again, the brief discussion was dicta and, unsurprisingly, was inconclusive on the subject. His Honour observed that, in Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41 ; (2006) 229 ALR 58, the High Court may have recently approved Trendtex . But that observation is of doubtful application to circumstances such as those of the present case. In Fostif , the High Court was not concerned with the validity of a purported assignment of a cause of action but rather whether an action should be stayed as an abuse of process because of the existence of a litigation funding arrangement between the plaintiffs and a firm of consultants. The appeal to the High Court was allowed on a quite separate basis, and the question of the validity of the assignment of a cause of action was nowhere considered.


case_text: Subsequent to Rickard Constructions , passing reference was made to the issue by Finkelstein J in TS & B Retail Systems Pty Ltd v 3Fold Resources Pty Ltd (No. 3) (2007) 158 FCR 444 at [78]-[81]. Once again, the brief discussion was dicta and, unsurprisingly, was inconclusive on the subject. His Honour observed that, in Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41 ; (2006) 229 ALR 58, the High Court may have recently approved Trendtex . But that observation is of doubtful application to circumstances such as those of the present case. In Fostif , the High Court was not concerned with the validity of a purported assignment of a cause of action but rather whether an action should be stayed as an abuse of process because of the existence of a litigation funding arrangement between the plaintiffs and a firm of consultants. The appeal to the High Court was allowed on a quite separate basis, and the question of the validity of the assignment of a cause of action was nowhere considered.


case_outcome: referred to

case_text: Subsequent to Rickard Constructions , passing reference was made to the issue by Finkelstein J in TS & B Retail Systems Pty Ltd v 3Fold Resources Pty Ltd (No. 3) (2007) 158 FCR 444 at [78]-[81]. Once again, the brief discussion was dicta and, unsurprisingly, was inconclusive on the subject. His Honour observed that, in Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41 ; (2006) 229 ALR 58, the High Court may have recently approved Trendtex . But that observation is of doubtful application to circumstances such as those of the present case. In Fostif , the High Court was not concerned with the validity of a purported assignment of a cause of action but rather whether an action should be stayed as an abuse of process because of the existence of a litigation funding arrangement between the plaintiffs and a firm of consultants. The appeal to the High Court was allowed on a quite separate basis, and the question of the validity of the assignment of a cause of action was nowhere considered. 118 The most recent discussion on the subject is that of the Full Court of the Federal Court in Deloitte Touche Tohmatsu v J P Morgan Portfolio Services Ltd (2007) 158 FCR 417. In that case the issue, like that in Fostif , was whether a litigation funding agreement constituted an abuse of process. Tamberlin and Jacobson JJ (Rares J dissenting) held that it was not, concluding that the funder (Westpac Banking Corporation) did have a genuine commercial interest in the enforcement of the claim, citing both Fostif and Trendtex in support. Importantly, the majority at [72] expressly noted that the agreement in question was "not an assignment of the cause of action", as did Rares J at [134], who noted further that it was common ground between the parties that the causes of action in question "were not capable of assignment to Westpac".


case_text: The most recent discussion on the subject is that of the Full Court of the Federal Court in Deloitte Touche Tohmatsu v J P Morgan Portfolio Services Ltd (2007) 158 FCR 417. In that case the issue, like that in Fostif , was whether a litigation funding agreement constituted an abuse of process. Tamberlin and Jacobson JJ (Rares J dissenting) held that it was not, concluding that the funder (Westpac Banking Corporation) did have a genuine commercial interest in the enforcement of the claim, citing both Fostif and Trendtex in support. Importantly, the majority at [72] expressly noted that the agreement in question was "not an assignment of the cause of action", as did Rares J at [134], who noted further that it was common ground between the parties that the causes of action in question "were not capable of assignment to Westpac".


case_text: Further, even if Trendtex was accepted as good law in Australia in relation to the assignment of tortious and equitable claims, Crocodile had no genuine commercial interest in taking the assignment. It is clear from the cases that a mere personal interest in profiting is not enough. Cohen J in Monk v Australia and New Zealand Banking Group Ltd (1994) 34 NSWLR 148 at 153 said: In my opinion [the interest claimed by the plaintiff] is not a genuine commercial interest in the way that the phrase has been used in the judgments. Examples may be given from the facts in the various cases concerned. For instance it was held that there was such an interest where the assignee was already a substantial creditor of the assignor with a right to enforce the debt (Trendtex, Re Timothy's) or where the assignee was the sole shareholder who was a guarantor of the overdraft of the assignor (Re Daley) or where the assignee was a debenture holder with an interest in protecting the value of its security (First City Corporation).


case_text: To similar effect, in National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Limited (1995) 132 ALR 514 at 540 Lindgren J said that the interest must exist independently of the assignment: ... the genuine commercial interest referred to in Trendtex is not a nebulous notion of the general commercial advantage of the assignee but something more specific and limited. In particular, it does not embrace an interest arising from an arrangement voluntarily entered into by the assignee of which the impugned assignment is an essential part, like the arrangement in the present case. Rather, the expression refers to a commercial interest which exists already or by reason of other matters, and which receives ancillary support from the assignment. 123 For the reasons discussed above, there was no loan between Crocodile and Arkaroola and the charge over Arkaroola's assets granted in favour of Crocodile was not created until 20 February 2003, well after the first assignment was supposedly entered into in. Crocodile, therefore, had no genuine commercial interest prior to the Deed of Assignment. 124 In the result, the first assignment, even if genuine, was not legally effective to assign the relevant causes of action from Arkaroola to Crocodile. It follows that the second assignment from Crocodile to Mr Salinger is of no effect.


case_text: The order for identity discovery is sought to identify that company. Syngenta resists the order sought. It refers to cases which hold that a material factor in deciding whether to make an order are the prospects of the applicant succeeding in the action against the person whose identity is sought to be discovered: see eg, Hooper v Kirella Pty Ltd [1999] FCA 1584 ; (1999) 96 FCR 1. It then points out that not only is Monsanto unable to identify a prospective defendant, it is also presently unable to articulate a cause of action against that unknown defendant. Accordingly, so the argument goes, Monsanto is simply not entitled to an order. 9 I accept as correct that in most cases an applicant for identity discovery must show some prospects of success in its proposed action. A defendant's privacy should not be invaded unless there is good cause. But there is no absolute rule that an applicant must show some prospects of success as a condition to obtaining an order. In the first place, r 3 does not contain any such requirement. Second, there may well be cases where the imposition of such a condition would lead to injustice. This case is a good example of one where it would be unjust to refuse an order because the applicant is unable to show prospects of success. The reasons are so obvious they need no further elaboration. 10 The criterion that I would apply is whether Monsanto has shown that it has a claim that is worth investigating. It may be true that two levels of investigation are required -- one to identify the prospective defendant and another to assess the merits of the claim against that prospective defendant. But this should be no bar to an order under r 3. 11 There is no need to spend much time considering whether Monsanto has a claim worth investigating. I think it clear that it has such a claim. First, there is a reasonable basis for believing that Monsanto's patent may have been infringed. Second, it seems clear enough that some company in the Syngenta group is involved. In any event, the order will not cause much inconvenience.


case_text: In the result, there will be an order for identity discovery and the application for information discovery will be stood over. It is appropriate there be a Sabre order as well: see Sabre Corporation Pty Ltd v Russ Kalvin's Hair Care Company (1993) 46 FCR 428. Monsanto should bring in short minutes of order for me to consider. If there is a dispute about the breadth of what they will seek (as I suspect there might be) I will relist the matter. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. Associate: Dated: 17 March 2006 Counsel for the Applicant: D Shavin QC H M J Rofe Solicitor for the Applicant: Clayton Utz Counsel for the Respondent: T J Walker Solicitor for the Respondent: Freehills Date of Hearing: 3 March 2006 Date of Judgment: 17 March 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/228.html


case_title: Home Office v Harman [1981] QB 534

case_text: applicant was concerned that material already discovered in the arbitration could not be used for the purpose of considering whether or not to institute proceedings under the TP Act in this Court, in particular against the first respondent: Home Office v Harman [1981] QB 534. Consequently, by letter on 5 March 2003, the applicant requested copies of documents from the first respondent for the purpose of determining whether it may have a claim against the first respondent under the TP Act, and offered to pay the first applicant's reasonable costs of producing such documents. The request was in the following terms: Alstom believes that it may have a right of action against [the first respondent, the second respondent and a third party, related to the second respondent] for misleading and deceptive conduct, or unconscionable conduct under the [TP Act] in respect of the matters set out in this letter. Alstom wishes to review [eight specified documents or categories of documents] in the possession, custody or control of [the first respondent] in order to enable it to decide whether to commence proceedings against [the first and second respondents and the third party], or any one or more of them, in relation to the matters referred to in paragraph 24: ... Alstom is unable to obtain the [eight specified documents or categories of documents] referred to in paragraph 25 from any source other than [the first and second respondents, and the third party]. As stated in paragraph 10, Alstom does not know who, as between those entities, has possession of the documents relating to the project. The applicant also stated in that letter that it intended to apply to the Court for an order compelling production of the documents if the first respondent did not agree to the request within the time stipulated. By letter dated 11 March 2003, the first respondent refused to supply the documents sought, and suggested that the applicant should bring any such claims under the TP Act within the arbitration, in accordance with the contract, in the following terms: The contract documents ... include dispute resolution and other relevant clauses which apply to the issues covered in your letter including to the request for access to documents. [The first respondent] suggests that if your client wishes to pursue any matters relating to this contract they should do so in accordance with the contract and the procedures available under the contract.


case_text: successful application under O 15A r 6 for pre-action discovery does not give automatic entitlement to the costs of making that application, and nor does a partially unsuccessful opposition to the orders sought in such an application prevent a party against whom discovery is ordered from recovering its costs of the application: C7 Pty Ltd v Foxtel Management Pty Ltd [2001] FCA 1864. The Court has power to order costs in such an application pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth), and O 15A r 11 and O 62 r 3(1) of the Rules. The power to order costs in such an application is a discretionary one. There are several factors influencing the exercise of that discretion in the present circumstances. First, the first respondent submits that the application in this Court was unnecessary, in the face of the existing arbitration, as the applicant could have brought (and ultimately did bring) its claims under the TP Act in the arbitration. The first respondent submits: In insisting [the applicant] bring its [TP Act claims] in the arbitration before making that discovery available, [the first respondent] cannot be criticised for preferring the convenience and cost effectiveness of bringing those claims in the existing Arbitration over the risk and attendant cost of multiple proceedings in both this Court and the Arbitration. I agree with Selway J's observations at [6] and [11] of the primary judgment. The first respondent's position was in error, as acknowledged by the first respondent at the hearing before Selway J. Insofar as the first respondent refused the requests for access to the documents that were already discovered in the arbitration on the basis that the applicant was obliged to bring any claims under the TP Act in the arbitration, the respondent unreasonably put the applicant to the costs of the hearing of the application on that issue. The fact that the applicant could, and ultimately did, pursue its claims under the TP Act in the arbitration does not, in my view, make its application to this Court either unnecessary, or inappropriate. The failure of the first respondent, until the hearing, to indicate clearly that the applicant could use the documents already discovered in the arbitration for the purpose of considering whether the applicant might have and bring a claim under the TP Act in this Court was unreasonable. I consider that is a matter which weighs in favour of the first respondent bearing the costs or some of the costs of the application.


case_text: authorities, however, clearly consider the outcome of any subsequent substantive proceedings that an applicant may bring against a respondent in the light of any order for pre-action discovery as a very relevant issue: Cappuccio v Australia & New Zealand Banking Group Ltd [1999] FCA 1188. Normally, the costs of a pre-action discovery order followed by a proceeding would follow the event when the proceeding was resolved. I see no reason why that starting point should not be adopted when the proceeding is by way of arbitration, rather than in the Court in which the order for pre-action discovery was made. The applicant put no submission to suggest that such a circumstance provided a distinguishing element. The failure of the applicant to succeed on its TP Act claim in the arbitration heavily weighs in the first respondent's favour of obtaining costs of the application or part of those costs. On the application, there was further a dispute about the appropriate extent of any order for pre-action discovery. The scope of the discovery ordered by Selway J was wider than the scope of the documents discovered in the arbitration, and wider than that contended for by the first respondent, but narrower than the scope of documents that the applicant sought in its pre-action discovery application. As Selway J held at [16] of the primary judgment, the categories of documents which the first respondent was required to discover were narrowed both by concession by the applicant during the hearing, and further narrowed by Selway J in the primary judgment orders. The first respondent says that the scope of discovery was "significantly narrowed". The first respondent also submits: It is impossible to speculate as to whether [the first respondent] would have provided the informal discovery requested by [the applicant] if the request had been made on more reasonable terms, say for example the form of order made by Selway J. However, the scope of the order sought by [the applicant] must have been a significant factor in [the first respondent's] decision to oppose the orders sought.


case_text: applicant replied by letter dated 27 April 2004, relevantly, in the following terms: Paragraph number 3 of your letter [of 21 April 2004] fails to answer the query raised in our letter dated 19 April 2004. Our letter asked you to clarify, as a matter of urgency, whether your client regards [the applicant] as being subject to the obligation at law not to use any documents which your client discovers in the arbitration for any other purpose. Please provide us with your response to that query as soon as possible. The implied undertaking not to use documents which a party has discovered for a collateral or improper purpose applies to documents discovered in an arbitration ( Esso Australia Resources Ltd v Plowman [1995] HCA 19 ; (1995) 128 ALR 391). The undertaking extends to the use of the documents in other proceedings. [The applicant] is subject to that implied undertaking unless your client provides it with clear and unequivocal consent to its waiver. Please let us know, as a matter of urgency, whether your client will provide us with that consent. ... You appear to be contending that your client is under no obligation to comply with [the applicant's] request for production of documents because of the arbitration. We dispute that. Even if that contention is correct, we have asked you to clarify whether all the documents which [the applicant] seeks in this application have been discovered in the arbitration, and to identify those documents. You should provide us with a response to that query. By letter dated 27 April 2004, the first respondent relevantly replied: Our client referred the [TP Act] dispute to arbitration on 13 March 2003, and offered to agree the appointment of the arbitrator in the present arbitration between the parties, Mr Arbitrator Peck. If and when your client attends to this aspect of the matter, our client will consider whether the discovery already given is sufficient, and, if appropriate, will make further discovery. The first respondent further replied on 30 April 2004 in the following terms: As we have previously indicated to you, [the applicant's application for pre-action discovery] is unnecessary for the following reasons: (a) the arbitration agreement between the parties is sufficiently broad to incorporate the potential [TP Act] claims the subject of the [the applicant's] application (the Alleged Claims). As a result, on 13 March 2003, [the first respondent] offered to refer to the current arbitration not only the dispute regarding early discovery but also the dispute regarding your client's [TP Act] allegations. These are disputes arising out of or in connection with the Contract. In fact, some of the matters alleged by [the applicant] in support of potential [TP Act] claims are already pleaded in [the applicant's] points of claim; (b) general discovery has been given to [the applicant] in the arbitration. It is for [the applicant] to decide whether or not the documents which [the applicant] seeks in the present application have been discovered by [the first respondent] in the arbitration ... (c) [The applicant] is likely to have sufficient documentation available to it to enable it to identify whether [the applicant] may have potential claims under the [TP Act] against [the first respondent or the third party]; however, [the applicant] has not (and there is no evidence that it has) made reasonable attempts to review these documents; (d) "documents discovered in an arbitration" can obviously be used by [the applicant] in the arbitration; and (e) [The applicant's] concern about using arbitration documents in other proceedings is avoided if and when [the applicant] agrees to the appointment of Mr Arbitrator Peck to arbitrate the Alleged Claims. The first respondent's position is that there is no all encompassing implied undertaking of confidentiality in arbitration agreements: Esso Australian Resources v Plowman [1995] HCA 19 ; (1995) 183 CLR 10. The first respondent submits that the documents relating to the arbitration are not of their nature confidential, and in the absence of any general confidentiality attaching to the arbitration, that this Court is entitled to refer to them in assessing the costs of the application. In the alternative, the first respondent submits that if the relevant documents were covered by an implied confidentiality undertaking, that the first respondent could disclose the documents in order to protect its legitimate interests in obtaining an order for costs in these proceedings. I have already made clear my findings that the fact that the applicant brought claims under the TP Act within the arbitration is irrelevant in assessing costs. I have not relied on the documents related to the arbitration in assessing the costs of the pre-action discovery application in this Court. However, as noted in the first respondent's submissions, the Points of Claim were annexed to an affidavit read and relied upon at the hearing of this application in open Court, and no objection was taken to that course of action at that time. The Points of Claim have been on the public record since 2004. There would be little utility in making an order for confidentiality at this late stage, and such an order would run counter to the principles of open justice. More importantly, there is no developed material upon which, in respect of that affidavit, s 50 of the Federal Court of Australia Act 1976 (Cth) could be enlivened. I am not satisfied that it is necessary to prevent prejudice to the administration of justice in the circumstances to make the order sought. Indeed, it is necessary to note the outcome of the arbitrator's award on the claim under the TP Act as it is a matter relevant to the ruling on costs which I have made. Without noting that outcome, the reasons for the ruling would not be transparent and indeed would not make sense. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 23 June 2009 Counsel for the Applicant: A Rosser Solicitor for the Applicant: Cosoff Cudmore Knox Counsel for the Respondents: I Nosworthy Solicitor for the Respondents: Nosworthy Partners as agents for Henry Davis York Date of Submissions: 14 May 2009 Date of Judgment: 23 June 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/681.html


case_text: It was the evidence of both Mr and Mrs White, which I accept, that they did not read the disclaimer in the brochure or have any regard to it. I make that finding notwithstanding that Mr White said that it was possible that Mrs Bahr had showed him the disclaimer. Even if the applicants had read the disclaimer that would not have been fatal to their case: Lezam Pty Ltd v Seabridge Australia Pty Ltd (1992) 35 FCR 535 per Burchett J at 556-558; Bowler & Another v Hilda Pty Ltd & Others (1998) 80 FCR 191 per Heerey J at 207. However, if they had read the disclaimer they might well have concluded the disclaimer was included to protect the first respondent and the CPAs. Paragraph 2 of the disclaimer represents that the brochure has been completed from information supplied by the first respondent. It also represents that the fourth respondent was associated with the provision of that information in the brochure. If they had read the disclaimer it would have supported the applicants' evidence in that they said that they placed greater reliance on the brochure because it had been prepared by a firm of CPAs.


case_title: Bowler & Another v Hilda Pty Ltd & Others (1998) 80 FCR 191


case_text: In any event, it is no part of the first, second and third respondents' case that there was any delay on the part of the applicants in the bringing of these proceedings. Indeed, their case was predicated upon the basis that the applicants bought a viable business which was subsequently badly managed and subject to other circumstances which affected the business' viability. In those circumstances, this is not a case of the kind in Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 2) (1989) 40 FCR 76 where the Court held that the damages should be limited to a point of time when the respondents should have abandoned the business. 225 I do not intend to reduce the applicants' damages by reason of their continuing to conduct the business up until trial. 226 It is the applicants' case that the representations which I have found made, were made in trade or commerce and were misleading or deceptive or likely to mislead or deceive contrary to and in breach of s 52 of the Trade Practices Act and/or s 10 of the Fair Trading Act . The applicants pleaded that the representations were made by the first respondent through the medium of the second respondent: paragraph 10 of the statement of claim. The representations relied upon are those in the brochure: paragraph 11 of the statement of claim. It is not pleaded that the third respondent made the representations. They claim that they relied upon the representations. The first applicant claims that in reliance on the representations it entered into the agreement of 28 December 1999 with the first respondent and that it paid a deposit, and that it proceeded to settlement on or about 28 February 2000 and acquired the business. It further claims that in reliance upon the representations it entered into a lease with the first respondent of the premises. It is pleaded that the third applicant, also in reliance upon the representations, gave up her job as a teacher to work full time in the business. There is no separate plea that the second applicant did or did not do anything in reliance upon the representations. I will return to that.


case_text: Section 79, as I have said, is in like terms to s 82 as it was prior to the amending Act. Section 82 of the Trade Practices Act was considered by the Full Court of the Federal Court of Australia in State of Western Australia v Wardley (1991) 30 FCR 245. Section 79 creates a right and gives a remedy. Section 79(2) prescribes a time limitation which has a procedural character. It follows, as was said in State of Western Australia v Wardley at 259, that s 79(2) is 'a condition of the remedy rather than an element in the right and a prerequisite to jurisdiction which cannot be waived'. The Court said at 259: 'It follows that it is for a defendant to assert non-compliance, rather than for a plaintiff to assert compliance with s 82(2) as an element of the cause of action.' 257 More importantly, the Court continued at 259: 'The need for compliance with s 82(2) may be waived by the defendant and an estoppel may prevent the defendant denying such a waiver. If the defendant fails to plead the limitation, this may be taken as a waiver of the need for compliance with s 82(2). '


case_text: More recently, the High Court said in Murphy and Another v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388 at [56] that the onus of establishing that a party's claim was statute barred lay on the respondent and could be discharged by pleading and establishing that defence.


case_text: I set out the taxation profit and loss statement for that year and for the previous year. The 1998 figures were disclosed in the 1999 financial statements but, in any event, the applicants also tendered the first respondent's taxation returns for the financial years ended 1997 and 1998. 'THIRSTY POINT PTY LTD TRADING AS THIRSTY LIQUOR STORE TRADING, PROFIT AND LOSS STATEMENT FOR THE YEAR ENDED 30 TH JUNE 1999 1999 $ 1998 $ SALES Sales 364,708 440,816 LESS: COST OF GOODS SOLD Opening Stock 82,883 55,000 Purchases 233,729 349,713 316,612 404,713 Closing Stock 57,066 82,883 259,546 321,830 GROSS PROFIT FROM TRADING 105,162 118,986 OTHER INCOME Lease Rentals - 5,216 Other Revenue 8,400 8,578 Capital Gain (Loss) on Sale of Non-current Assets - 4,200 8,400 17,994 113,562 136,980 EXPENDITURE Accountancy Fees 4,480 - Advertising 659 5,233 Bank Charges 6,077 7,638 Borrowing Costs 896 648 Casual Wages - 6,000 Depreciation 12,427 18,256 Electricity 10,785 11,425 Filing Fees 200 200 Freight and Cartage 672 220 Hire of Plant & Equipment 245 - Hire Purchase Charges - 1,964 Insurance 5,043 5,219 Interest Paid 16,899 16,499 Legal costs 5,200 - Licensing fees 2,302 6,452 Motor Vehicle Expenses 12,864 17,656 Printing and Stationery 4,458 1,168 Rates and Taxes 1,963 2,479 Repairs and Maintenance Furniture, Fixtures and Fittings 480 - Telephone 7,503 9,137 Travelling Expenses 3,762 3,469 Wages 13,664 12,000 110,579 125,663 NET PROFIT 2,983 11,317 The accompanying notes form part of these financial statements. This report is to be read in conjunction with the attached compilation report.' 147 The gross profit from trading disclosed in the taxation profit and loss statement was $105,162. The net profit disclosed for taxation purposes by the first respondent was $2,983. The taxation profit and loss statement returned for the purpose of taxation should be compared with the brochure profit and loss statement contained in the brochure. 148 In the brochure profit and loss statement the total income disclosed is $373,109. That figure is the same as the sum of the sales and other revenue ($8,400) disclosed in the taxation profit and loss statement. It would be better for comparison purposes to leave out of account the other revenue when comparing the two profit and loss statements. The other revenue is not a trading profit and may not be generated in the business. That would mean on a comparison basis notionally reducing the brochure profit and loss statement sales by $8,400. 259 Where a statute of limitations bars the remedy but not the right, the defence under the statute must be expressly pleaded: Cigna Insurance Asia Pacific Ltd v Packer (2000) 23 WAR 159 at 171; Pullen v Guttridge, Haskins and Davey Pty Ltd (1993) 1 VR 27 at 71-72.


case_text: Where a statute of limitations bars the remedy but not the right, the defence under the statute must be expressly pleaded: Cigna Insurance Asia Pacific Ltd v Packer (2000) 23 WAR 159 at 171; Pullen v Guttridge, Haskins and Davey Pty Ltd (1993) 1 VR 27 at 71-72.


case_text: A corporation may contravene s 52 without intending that its conduct mislead or deceive another person: Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd [1978] HCA 11 ; (1978) 140 CLR 216 at 228. A corporation therefore acting honestly can still be found to have contravened the section: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 197.


case_title: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191


case_text: Section 82 (damages) and s 87 (other orders) make a corporation, as defined in s 4 , liable in damages and to other orders for a contravention of s 52. Corporations cannot act, of course, except through a human agency, being its directors, servants or agents: Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 at 583 per Gibbs CJ. The effect of s 75B is to apply the provisions of s 82 and s 87 to any person who has been involved in a contravention of those parts of the Trade Practices Act mentioned in s 75B(1) by reason of any of the conduct in paragraphs (a)-(d) of s 75B(1). Those persons may be the corporation's directors, servants or agents. It is not only directors, servants or agents who may be caught by s 75B but, for the purpose of this case, it is enough to consider only that class. 270 In this matter the question is whether s 75B applies to either or both of the second respondent and third respondent so as to allow the Court to make an order for damages against one or both of them as persons involved in a contravention of s 52 of the Trade Practices Act . 271 Section 75B(1) prescribes the particular circumstances where a person who has not himself or herself contravened s 52 can be made the subject of an award of damages or may be made the subject of other orders. In that sense, it is a procedural section which widens the class of persons who may be the subject of orders under the Trade Practices Act . The section instances four separate ways in which a person may be made subject to orders under ss 82 or 87 . In this proceeding the applicants have, in their claims against the second and third respondents, only relied on one of those paragraphs, namely s 75B(1)(c). 279 For the reasons already given, it is my opinion that the second respondent well knew that the brochure contained representations which were, in material respects, false. That having been established, the applicants have established an actual rather than a constructive knowledge of the essential matters that make up the contravention. The applicants have established that there is a close rather than a remote involvement in the contravention: Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 at 584. The second respondent was an intentional participant in the first respondent's contravention. The second respondent constructed the brochure and included the figures which made up the brochure profit and loss statement for the financial statement. She published the brochure to the second and third applicants. She was directly involved in the contravention by the first respondent of s 52 of the Trade Practices Act . 280 It follows, therefore, that the applicants have established that the second respondent was knowingly concerned in or a party to a contravention by the first respondent of s 52 of the Trade Practices Act . 281 In my opinion, the applicants have also established that the second respondent contravened s 10 of the Fair Trading Act . The second respondent's conduct in publishing to the second and third applicants, and thereby the first applicant, the brochure which contained the false representations means that inevitably a finding must be made that she contravened s 10 of the Fair Trading Act . It was her action which caused the company to contravene s 52 of the Trade Practices Act . Necessarily, her action is a contravention of s 10 of the Fair Trading Act .


case_text: Section 75B was considered by the High Court in Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661. In that case, a corporation sold its business to the appellants. A land agent, which was also a corporation, acted on behalf of the vendor. A director of that land agent acted in the sale of the business. The trial judge found that the vendor had contravened s 52 of the Trade Practices Act . He also found that the land agent company had contravened s 52 but unwittingly. He found that a director of the vendor had aided and abetted or, alternatively, was knowingly concerned in the contravention by the vendor and by virtue of s 75B was a person involved in the vendor's contravention. However, he found that a director of the land agent company was unaware and had no reason to suspect the information supplied by the director of the vendor and thereby the vendor was incorrect. He dismissed the case against the director of the land agent company on the ground that the appellant had failed to prove that the director was aware or should have been aware of the relevant facts before he could be said to have been involved in the contravention. His decision was upheld by the Full Court of the Federal Court and the purchasers appealed to the High Court. The appellants argued that the respondent was caught by paragraphs (a) and (c) of s 75B(1). They argued that s 75B(1) , or at least paragraphs (a) and (c), did not require the appellants to prove any intent on the part of the respondent based upon knowledge of the material facts.


case_text: In dealing with paragraph (a) of s 75B(1) , Mason ACJ, Wilson, Deane and Dawson JJ (the majority) applied principles of the criminal law because the words used in s 75B(1)(a) are taken directly from the criminal law. In particular, they relied upon a previous decision of that Court in Giorgianni v The Queen [1985] HCA 29 ; (1985) 156 CLR 473 which had held that in the criminal law where a party is accused of aiding and abetting, the party must have knowledge of the essential matters which go to make up the offence before the party can form the requisite intention even if the party does not know that those matters amount to a crime. The majority said at 667-668: 'If par.(a) of s 75B imports the requirements of the criminal law, it is clear in the light of Giorgianni v The Queen that Lucas could only be brought within that paragraph if he intentionally aided, abetted, counselled or procured a contravention by the Lucas company of s 52 of the Trade Practices Act . Upon the findings of the trial judge, however, Lucas lacked the knowledge necessary to form the required intent. A contravention of s 52 involves conduct which is misleading or deceptive or likely to mislead and deceive and the conduct relied upon in this case consisted of the making of false representations. Whilst Lucas was aware of the representations indeed they were made by him he had no knowledge of their falsity and could not for that reason be said to have intentionally participated in the contravention.' 274 A similar construction was given to s 75(1)(c). The majority said at 670: 'There can be no question that a person cannot be knowingly concerned in a contravention unless he has knowledge of the essential facts constituting the contravention.' 275 The majority concluded at 670: 'In our view, the proper construction of par.(c) requires a party to a contravention to be an intentional participant, the necessary intent being based upon knowledge of the essential elements of the contravention.'


case_text: It must be actual knowledge not constructive knowledge that is established. There may be circumstances where knowledge may be inferred: Pereira v Director of Public Prosecutions [1988] HCA 57 ; (1988) 82 ALR 217 at 219-220. But that is still a factual inquiry as to whether the particular person was seized of the actual knowledge. Where knowledge is sought to be inferred it must be the only rational inference available. The person said to be accessorily liable, if s 75B(1)(c) is relied on, must not only have the necessary knowledge, the person must also be involved in a contravention of the relevant provision of the Act. Therefore, there must be some evidence of a participation in the contravention by the corporation.


case_text: Arktos Pty Ltd v Idyllic Nominees Pty Ltd [2004] FCAFC 119 (' Arktos Pty Ltd v Idyllic Nominees Pty Ltd ') was a case in the Full Court of the Federal Court mainly concerned with practice and procedure. However, the case is instructive in relation to the ambit of s 10 of the Fair Trading Act . In that case, the appellant had purchased a business from the first respondent. The primary judge found that the third respondent, who was a director of the first respondent, made misleading precontract representations and held, as a result, that the first respondent had thereby engaged in misleading conduct in trade or commerce contrary to s 52 of the Trade Practices Act . The misleading representation related to profitability and value of the business. The primary judge considered the third respondent's liability but dismissed the action against him on the ground that, whilst it was pleaded the third respondent had acted within the scope of his actual or apparent authority as a director or agent of the first respondent, the pleading did not allege that the third respondent engaged in conduct in trade or commerce on his own account. He also found that there was no plea that the third respondent was knowingly concerned in the contravention as defined in s 75B of the Trade Practices Act or s 68 of the Fair Trading Act . He concluded at [77] that therefore no 'derivative liability under the Act or the Fair Trading Act , was made out against [the third respondent] in respect of conduct by Idyllic held to contravene s 52 of the Act or s 10 of the Fair Trading Act '. The appeal was against the primary judge's failure to grant the appellants relief against the third respondent. 291 The primary judge said at [107] that the researches of Counsel 'have not revealed a single authority where an employee has been held personally liable for statements made in the course of his or her employment by an employer who, or which, was concededly engaged in trade or commerce'. He then went on to say: ' 109 The consideration just indicated together with my own analysis in the light of the authorities of the common basis on which liability for deceptive or misleading conduct "in trade or commerce" is erected by both the TPA and the Fair Trading Act has led me to conclude that it does not extend to the conduct of Student or Houghton in the present case. That is not to say that a director or sole shareholder of a company may not attract liability for statements made in the course of the company's business if their making can be characterised as tending to promote the director's or shareholders own trading or commercial interests. See eg Arktos v Idyllic Nominees Pty Ltd [2004] FCAFC 119 ; (2004) ATPR 42-005. However, no independent trading or commercial interest can be imputed to Student or Houghton in the present case. The application against those respondents must therefore be dismissed.' 292 That matter went on appeal. The Full Court of the Federal Court in Arms v Houghton [2006] FCAFC 46 discussed the decisions in Arktos Pty Ltd v Idyllic Nominees Pty Ltd, Citibank Ltd v Liu , and Wong v Citibank and concluded at [38] that there was authority both in the Full Court of this Court and in the Court of Appeal in New South Wales that 'an employee can be found to have engaged in misleading or deceptive conduct for actions taken within the scope of his actual authority; that is, not independently of such authority'. 295 It will be convenient to address the claim under s 10 of the Fair Trading Act first. The third respondent was a director of the first respondent. It was submitted that, in those circumstances, he also contravened s 10 of the Fair Trading Act and he is liable to the applicant: Arktos Pty Ltd v Idyllic Nominees Pty Ltd . 296 In my opinion, that submission cannot be accepted. The critical fact in Arktos Pty Ltd v Idyllic Nominees Pty Ltd which made that director liable under the Fair Trading Act was that the director had acted on behalf of the corporation and made misleading pre-contractual representations within the scope of his authority as a director to the purchaser. In those circumstances, the Full Court concluded that he was liable for the reasons it gave at [13] cited above at [284]. 297 It is not enough for an applicant to merely establish that a corporation has contravened s 52 of the Trade Practices Act and thereby claim that any director of that corporation is liable under s 10 of the Fair Trading Act . There must be a contravention by the director himself or herself. That was made clear by Nicholson J in Caple v All Fasteners (WA) (A Firm) [2005] FCA 1558. In that case, it was alleged that a corporation had contravened s 52 of the Trade Practices Act . It was pleaded that the appellant, who was a director of the corporation but who had not been party to any of the representations which had been made, was accessorily liable under s 75B of the Trade Practices Act and, in the alternative, primary liable under s 10 of the Fair Trading Act . The Federal Magistrate found the appellant was accessorily liable under s 75B of the Trade Practices Act , even though the representations were not made by the appellant. He did not find her liable under s 10 of the Fair Trading Act . On appeal, the respondent filed a notice of contention contending that 'in addition, or in the alternative, to the grounds for liability of the appellant contained in the reasons of his Honour, the appellant is liable to the respondent in relation to her breach (sic) of s 10 of the Fair Trading Act 1985 (WA) as pleaded in the respondent's re-amended statement of claim': at [77]. The respondent relied on this Court's decision in Arktos Pty Ltd v Idyllic Nominees Pty Ltd to support the submission.