case_text: By its notice of motion, the applicant sought its costs of the motion on an indemnity basis. Counsel properly did not press this application today. It is true that the applicant sough to put the respondent on notice that there were problems with his pleading late last year when it wrote its letter of 22 December 2005. Ordinarily, however, costs in this court are awarded on a party and party basis. The respondent has made a good faith effort to respond to the allegations against him. In Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 (" Re Wilcox ") at 156-157, Cooper and Merkel JJ said that: (a) the court ought not to depart from the usual party and party basis for costs unless this was warranted by the circumstances of the case; and (b) these circumstances arise "as and when the justice of the case so requires or where there may be some special or unusual feature in the case to justify the court in departing from the usual course". I do not find that the circumstances of this case warrant a departure from the usual course. 12 Nevertheless, the applicant has been successful in its motion and, notwithstanding the respondent's opposition, costs should follow the event. I propose to order that the respondent pay the costs of the motion on a party and party basis. 13 I also propose to direct that the parties file and serve submissions on the following two questions: whether or not the proceeding should be transferred to the Queensland District Registry; and (2) whether or not the proceeding should be referred to mediation under O 72 of the Federal Court Rules. I have already raised these matters with the parties in the course of the recent directions hearing. I would also make a further direction in the terms discussed in court today in relation to matters presently the subject of a confidentiality order.


case_outcome: cited

case_text: Despite the narrower scope of pre-action discovery and the different questions to which it relates, an estimation of the strength of a prospective case including consideration of possible defences may be material. Pre-action discovery is only directed to provide evidence sufficient to enable an applicant to decide whether to commence the proceedings . The sufficiency of this evidence need not go so far as to enable the applicant to decide there is a prima facie case or to evaluate the prospects of success on the ultimate hearing at any high level of probability. Pre-action discovery is not designed to enhance or justify a decision which has already been taken to commence proceedings: see Matrix Film Investment One Pty Ltd v Alameda Films LLC [2006] FCA 591. The focus of this form of discovery is on the question whether the requirements of O 15A r 6(a), (b) and (c) have been made out and, if so, whether the Court should exercise its discretion to require production. In discovery after an action has been commenced, the question is whether there are documents relevant to the matters and issues raised on the pleadings, including but not limited to those referred to in O 15 r 2(3). Any determination of an application for pre-action discovery must be made having regard to these considerations.


case_title: Tyco Australia Pty Ltd v Leighton Contractors Pty Ltd (2005) 142 FCR 429

case_text: There is now no doubt that the Court has power to make an order that a Notice to Produce be issued in a pre-action discovery application if directed to the questions set out in O 15A r 6. However, notwithstanding this power, the Court retains its broad discretion whether to allow a Notice to Produce to stand in whole or in part: see Tyco Australia Pty Ltd v Leighton Contractors Pty Ltd [2005] FCAFC 115 ; (2005) 142 FCR 428. In that case, as pointed out by Hill J at 438, although the issues in pre-action discovery are very limited, they can give rise to contestable issues of fact which can be the subject of cross-examination. Accordingly, before making a determination, the Court must consider whether the relevant Notice to Produce is limited to the establishment of those matters necessary to be satisfied under the requirements of O 15A r 6. A Notice to Produce like any other litigious measure must not be an abuse of process.


case_outcome: applied

case_text: The relevant principles concerning pre-action discovery are concisely summarised by Hely J in St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147 at 153. It is unnecessary to reproduce his Honour's summary, but I have applied those principles in my consideration of the challenge to the present Notice. 9 The Notice to Produce in this application has four parts. The documents sought in the first part (paragraphs [1]-[4]) relate to the determination of issues in the proceedings and conform to the requirements of O 15A r 6. The documents sought in the second and third part (paragraphs [5]-[17] and paragraphs [18]-[20] respectively) relate to matters arising out of Mr Shale's and Mr Keldoulis' affidavits respectively. The documents sought in the fourth part (paragraphs [21]-[24]) relate to other miscellaneous matters. 10 Paragraphs [1]-[4] are relevant and appropriate and need not be struck out. I consider that they are not expressed too broadly because the descriptions of the documents sought are narrowed in each case by the introductory words. In addition, they are related to facts which may be contested on the application. Cross-examination on a suitably controlled basis may be allowed in some circumstances, but this is subject to the discretion of the Court, and extensive cross-examination on pre-action discovery is to be discouraged. As a consequence, it may be appropriate to allow some investigation of the documentary basis for the contention that there have been reasonable inquiries as to the sufficiency of the records and evidence relating to whether Optiver has already made a decision whether to commence proceedings. The making of any decision to commence prior to the O 15A r 6 application is important because pre-action discovery is concerned to identify any material on the basis of which such a decision can be made. If a decision has already been made, the application is not necessary and pre-action discovery will not be granted. I allow paragraphs [1]-[4] of the Notice to Produce.


case_text: In another High Court decision, that of FJ Bloemen Pty Ltd v Commissioner of Taxation [1981] HCA 27 ; (1981) 147 CLR 360 at 371, Mason and Wilson JJ stated that s 175 cannot "create a valid assessment where no assessment has been made at all. The section requires an actual assessment as a condition of its operation". 16 Section 175 is often used in conjunction with s 177. Section 177(1) of the ITA Act provides: The production of a notice of assessment, or of a document under the hand of the Commissioner, a Second Commissioner, or a Deputy Commissioner, purporting to be a copy of a notice of assessment, shall be conclusive evidence of the due making of the assessment and, except in proceedings under Part IVC of the Taxation Administration Act 1953 on a review or appeal relating to the assessment, that the amount and all the particulars of the assessment are correct. 33 It is beyond question that there is no valid notice of assessment until service of the notice has been effected: Bloemen [1981] HCA 27 ; 147 CLR 360. The requirement of service has implications in this case for the validity of the Garnishee Notices, because the effectiveness of the Garnishee Notices depends upon there being a debt due to the Commonwealth, which in turn depends upon service of the notice of assessment being effected prior to the service of the Garnishee Notices. If the notice of assessment was not effectively served on 25 August 2006, then the Garnishee Notices are invalid. 34 According to the evidence of Mr Zafiriou, whom I accept as being a truthful witness, on 25 August 2006, an officer of the respondent, Mr Fisher, placed the notice of assessment in post office box 311 at Dallas Post Office in Victoria, the post office box of the applicant. On the same day, Mr Zafiriou gave the Garnishee Notices to Mr Silvestri and Jason Real Estate Pty Ltd. The evidence is unsatisfactory as to the exact sequence of these events on the 25 August 2006, but because of the view I take, it is unnecessary to consider the evidence in this regard any further. 35 The starting point is s 174 of the ITA Act, which provides that as soon as conveniently may be after any assessment is made, the Commissioner must serve notice thereof in writing by post or otherwise upon the taxpayer: s 174(1). The respondent submitted that the service of the notice was effected on 25 August 2006, and relied upon two submissions.


case_text: It is also important to remember that the fact that an assessment may be incorrect or based upon insufficient facts does not demonstrate a lack of bona fides. In the decision of Briglia v Commissioner of Taxation [2000] ATC 4,247 the court held that two assessments which included the same amount in the assessable income of two different taxpayers for the same year were valid. At [9], Kenny J held that an incorrect assessment was not sufficient to evidence a lack of bona fides: Plainly enough, an incorrect assessment does not demonstrate an absence of bona fides on the Deputy Commissioner's part. The decision in Richard Walter also makes it clear that the existence of two assessments, which include the same amount in respect of the same year of income but issued to different taxpayers, does not demonstrate a want of bona fides on the Commissioner's part, providing that at the time the Commissioner made the assessments he was bona fide able to form the view that each assessment could be correct: see Richard Walter at 188, 200, 202 and Darrell Lea at 186. It follows from this that uncertainty on the Deputy Commissioner's part as to the facts relevant to the exercise of his power of assessment does not evidence any absence of bona fides in the Hickman sense. As Brennan J said in Richard Walter at 200-201: It must be remembered that the Commissioner's function is administrative, not judicial. The power to assess is, as s 167 shows, not limited to cases where the Commissioner has enough information on which to make a positive finding of fact. The Commissioner is not required to determine on the balance of probabilities that one person rather than another is the person subject to the tax liability in respect of the particular income. 22 The principles of law are well established and not in dispute as between the parties. Except in very limited circumstances, the taxpayer's rights to dispute liability to taxation are provided for by the objection, review and appeal procedures in Pt IVC of the TAA and are to be pursued by those procedures rather than by proceedings such as this one. However, if it appears, either on the face of a notice of assessment or from elsewhere, that the Commissioner has acted for an improper purpose, has not attempted in good faith to determine the taxable income or has not made an assessment definitive of the tax liability of the taxpayer, the assessment will not attract the protection of s 175. 23 The applicant relied upon a number of factors in support of her contentions, which can be summarised as follows: • The assessment was tentative or provisional; • The respondent did not make any real or genuine attempt to assess the applicant's taxable income, nor embarked upon any process of inquiry to determine the applicant's income; and • The assessment was issued solely for the purpose of issuing the Garnishee Notices.


case_text: Section 175 preserves the validity of an assessment even though there has been some non-compliance with another provision in the ITA Act. However, in the High Court decision of Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23 ; (1995) 183 CLR 168 at 182 Mason CJ stated of s 175 (footnotes omitted): This section does not relieve the Commissioner from performing his duty to make an assessment. The section does not create a valid assessment where none has been made at all. The section requires an actual assessment as a condition of its operation. But otherwise, the effect of s 175 is that compliance with particular provisions of the Act is not essential to the validity of an assessment. 17 Subject to the application of the principle in R v Hickman; Ex parte Fox [1945] HCA 53 ; (1945) 70 CLR 598 ('the Hickman principle'), ss 175 and 177(1) operate to preclude a taxpayer from challenging an assessment except in objection, review and appeal proceedings brought pursuant to Part IVC of the TAA: Richard Walter 183 CLR at 186 per Mason CJ, at 197-199 per Brennan J, at 211 per Deane and Gaudron JJ, at 222-223 per Toohey J; and at 233 per Dawson J. 19 In Richard Walter 183 CLR at 199, Brennan J stated that the Hickman principle should be applied in the construction of s 175 (footnotes omitted): The jurisdiction of the Federal Court on appeal from, or of the Administrative Appeals Tribunal on review of, a decision on an objection extends to every issue which affects the amounts ultimately included in the taxable income or tax liability of a taxpayer. If any of these issues be resolved in favour of the taxpayer, an amendment of the assessment so as to reduce the taxable income or the tax liability of the taxpayer must follow. The width of that jurisdiction and the evidence purpose of the Act to channel all issues as to the true tax liability of the taxpayer into the objection, review and appeal procedures found the clearest implication that exceptions to the broadest literal application of s 175 must be narrowly confined and a corresponding operation must be attributed to s 177(1). As the scheme of the Act is to protect the validity of notices of assessment while allowing a taxpayer a full opportunity to have the general provisions of the Act affecting tax liability applied, I would construe the term "due making of the assessment" in s 177(1) as extending to every purported exercise of the power to ascertain the taxable income and tax liability of a taxpayer which satisfies the criteria expressed by the Hickman principle. 30 With regard to the applicant's submissions that the assessment was raised for an improper purpose or lacked bona fides and there was no genuine or rational attempt to properly assess and make proper inquiries, I find no proper factual basis upon which this claim can succeed. I also cannot be satisfied that the assessment was tentative or provisional. The notice of assessment clearly sets out the applicant's taxable income, and a fixed sum that is due and payable. There is no indication that the tax liability stated is tentative or provisional: see Richard Walter at 237 per McHugh J.


case_text: It is well to remember the comments of Everett J in Deputy Commissioner of Taxation v Naidoo [1981] 81 ATC 4,537 at 4,543 to 4,544: I am in no doubt that the action of the officer of the Australian Taxation Office in taking the more direct and expeditious course of visiting the offices of the defendant's tax agents and personally delivering the notices of assessment to a partner of the firm was properly motivated, but I feel bound to hold that it did not comply with relevant provisions of the Act and Regulations. It is obviously an advantage to the Australian Taxation Office in some cases to be able to serve notices and other communications by following the method prescribed by either para (b) or para (c) of reg 59, but I consider that, if it does so, it is bound to adhere strictly to the letter of the regulation. Any departure from a plain and natural interpretation of the words of reg 59 could bring doubt and uncertainty into an area which is clear and definite. Regulation 59 is a protection for the Deputy Commissioner against taxpayers who may seek to evade their tax obligations by avoiding service of documents. The Taxation Office merely has to follow an appropriate option given by reg 59 to be able to pursue its administrative duties. It will only encounter legal difficulties if it disregards strict compliance with reg 59, even though the departure may appear completely technical and really of no significance. 52 His Honour went on to explain that the significance of service in the context of the creation of a tax liability against a person means the requirements of service must be regarded as matters strictissimi juris . In deciding that service was not effected in that case, his Honour held at 4,544: Despite the natural belief of the Deputy Commissioner in this case that the circumstances warranted the most expeditious and certain means in his judgement of bringing the obligation of the defendant to his personal notice, it remained necessary to comply with the provisions of the Act and the Regulations. 53 The Regulations operate, to the benefit of the respondent, to provide for deemed service in situations where the taxpayer may otherwise avoid being personally served. Strict compliance with the requirements of service is necessary, absent which evidence must be adduced to prove actual service, and here that actual service on the applicant occurred on 25 August 2006 prior to the service of the Garnishee Notices. 54 It is to be noted that the operation of reg 40 does not affect the operation of other laws of the Commonwealth, states or territories that deal with the service of documents: see reg 40(3). However, given that the notice of assessment was not served by post or left at the address of the place of residence or business, neither the Evidence Act 1995 (Cth) or the Acts Interpretation Act 1901 (Cth) assist the respondent. Accordingly, I am not satisfied that the notice of assessment was served on 25 August 2006, so there was no debt due and payable to the Commonwealth on that date, and the Garnishee Notices were invalid. 55 Given my finding that the Garnishee Notices were invalid, the question then arises as to what to do with the money paid into Court pursuant to the interlocutory orders made on 20 September 2006. It is clear that the notice of assessment has now been served on the applicant, and the debt is due and payable. The respondent submitted that in the meantime the tax must be paid. 56 I will allow the parties time to consider their position in relation to the money in Court. Accordingly I will hear submissions as to what orders should be made in light of these reasons. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate: Dated: 4 May 2007 Counsel for the Applicant: F G A Beaumont QC with E Power Solicitor for the Applicant: Galbally and O'Bryan Counsel for the Respondent: H M Symons SC with P D Nicholas Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 22 and 23 November 2006 Date of Judgment: 4 May 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/655.html


case_outcome: considered

case_text: The respondent submitted that it had done more than what was required by the relevant legislation and accordingly service was good. In support of this proposition, the respondent relied upon the decision of the Victorian Court of Appeal in Emhill Pty Ltd v Bonsoc Pty Ltd [2005] VSCA 239 ; (2005) 12 VR 129 which concerned service of a statutory demand under s 109X of the Corporations Act 2001 (Cth). That context is important because service of a statutory demand is something that requires the same rigour as the service of a notice of assessment when one is not relying on actual service. 49 In that case, the legislation provided for service of a copy of the document in question and what was served was an original. The Court of Appeal held that strict compliance with statutory requirements for service did not prevent someone from doing more than what is required in the statute. At 133, Maxwell PA held: If it is right to regard service of the original as the highest and best form of service, and service of a copy as in that sense only second-best, then it cannot be supposed that a creditor who does more than the statute requires by serving an original rather than a mere photocopy fails to comply. On the contrary, in my view, where doing the lesser would suffice, doing the greater must also suffice. 50 However, whilst such principles are clearly relevant to the question of service of an assessment, there is a significant point of distinction between the circumstances before the Court of Appeal and the case before me. That case concerned actual service. One can easily accept that serving an original document on a person is better, or at least no worst, than serving a photocopy. For a person to attempt to avoid service on such a technicality clearly goes against the doctrine of strict compliance. However, here the assertion is that leaving a document at a place is better than posting the document to that place. That may be true. However, in the circumstances of these proceedings the best form of service is actual service and leaving the notice of assessment at the post office box of the applicant is clearly not a better form of service. Without the benefit of the regulations or there being deemed service upon the applicant, including a deeming as to the time of service, the respondent cannot show that the notice of assessment was actually served upon the applicant prior to the service of the Garnishee Notices. As a fact, I cannot assume that the applicant, even through an agent, became aware on 25 August 2006 that the notice of assessment was placed in her post office box. There was no positive evidence before me that the applicant in fact received notice of the assessment on 25 August 2006. Indeed, the uncontested evidence of the applicant was that as at 29 August 2006 she still had no notice of the assessment.


case_outcome: followed

case_title: Madden v Madden (1996) 65 FCR 354

case_text: A principal contention of the applicant was that, taking into account the chronology of events and surrounding circumstances, the sole or driving purpose of the making of the assessment was to allow the respondent to issue the Garnishee Notices, and that this was an improper purpose. The applicant relied upon a passage of Einfeld J in Madden v Madden (1996) 65 FCR 354 at 370: As tax collection is not part of tax assessment, the Hickman principle that the assessment must have been made in a bona fide attempt to exercise the powers conferred by the Tax Act, that is, the powers of assessment, seems to me to lead to the conclusion that a motive of collection from a known fund rather than by a genuine assessment of tax due is a breach of the principle. It is one thing to raise an assessment having regard to tax collection, even to enhance the ability to collect the tax -- the Tax Act provides as much: see for example ss 167 and 205. However, it is entirely another matter to raise the assessment with speed, imprecision and inadequacy of examination, investigation and inquiry in order to take advantage of a window of opportunity for its simple collection. In other words, raising an assessment in order to collect tax, rather than to determine the tax due, is not a bona fide attempt to exercise the powers of assessment conferred by the Tax Act. The consequence of an improper exercise of power is to take advantage of the taxpayer in a way which cannot be redressed within the internal appeal and review procedures of the Tax Act itself. Once the notice of assessment has been served, the taxpayer is liable to tax and s 218 may be activated. In this case the result has been bankruptcy. If the Commissioner was motivated to raise this assessment in order to serve a s 218 notice on the police, the assessment would in my opinion not have been made for a proper purpose and would accordingly be invalid 28 Even if there was a perceived urgency to issue the Garnishee Notices, I am not satisfied that the applicant has demonstrated that the assessment was raised in order to collect tax. I do not find any "speed", "imprecision", or "inadequacy of examination, investigation and inquiry" in the making of the assessment, or for the purpose of taking advantage of any "window of opportunity" to collect tax. The investigation into the applicant had been ongoing for some time before the assessment was made, and there is no other evidence of any inadequacy of examination, investigation or inquiry. Assuming the approach of Einfied J is correct, I am not satisfied that the assessment was made other than in circumstances of determining the tax due. 29 Even if the assessment was issued in conjunction with the issue of the Garnishee Notices, this does not lead to the conclusion that the assessment is invalid. To my mind there is a similarity to the position confronting the court in Madden 65 FCR 354 where at 395, Foster J (with whom Shepherd J agreed) dismissed an application based on a similar argument in relation to the issue of a s 218 notice, an equivalent to a notice under s 260-5: As I see it, the appellant's contention amounts really to this. He alleges that the assessment was invalid because it was issued by the Commissioner in abuse of his power to assess..., in that it was not a bona fide attempt to assess the amount upon which tax should be levied but was a mere device to enable the issue of the s 218 notice... In the first place, I am unable to attribute any significance to the fact that the assessment was issued in conjunction with and motivated by a desire to take advantage of s 218. There is sufficient indication of urgency in the situation to warrant the steps that were taken. In my opinion, the s 218 connection is a purely neutral fact in the determination of whether the assessment itself was invalid.


case_text: Subject to the application of the principle in R v Hickman; Ex parte Fox [1945] HCA 53 ; (1945) 70 CLR 598 ('the Hickman principle'), ss 175 and 177(1) operate to preclude a taxpayer from challenging an assessment except in objection, review and appeal proceedings brought pursuant to Part IVC of the TAA: Richard Walter 183 CLR at 186 per Mason CJ, at 197-199 per Brennan J, at 211 per Deane and Gaudron JJ, at 222-223 per Toohey J; and at 233 per Dawson J. 18 The Hickman principle states that a privative clause (s 175 in this case) is given effect only if the purported exercise of the power is bona fide, relates to the subject matter of the legislation and is reasonably capable of reference to the power given to the body exercising it. 19 In Richard Walter 183 CLR at 199, Brennan J stated that the Hickman principle should be applied in the construction of s 175 (footnotes omitted): The jurisdiction of the Federal Court on appeal from, or of the Administrative Appeals Tribunal on review of, a decision on an objection extends to every issue which affects the amounts ultimately included in the taxable income or tax liability of a taxpayer. If any of these issues be resolved in favour of the taxpayer, an amendment of the assessment so as to reduce the taxable income or the tax liability of the taxpayer must follow. The width of that jurisdiction and the evidence purpose of the Act to channel all issues as to the true tax liability of the taxpayer into the objection, review and appeal procedures found the clearest implication that exceptions to the broadest literal application of s 175 must be narrowly confined and a corresponding operation must be attributed to s 177(1). As the scheme of the Act is to protect the validity of notices of assessment while allowing a taxpayer a full opportunity to have the general provisions of the Act affecting tax liability applied, I would construe the term "due making of the assessment" in s 177(1) as extending to every purported exercise of the power to ascertain the taxable income and tax liability of a taxpayer which satisfies the criteria expressed by the Hickman principle. 20 His Honour went on to explain the application of the Hickman principle to a notice of assessment, at 199-200 (footnotes omitted): The power to make an assessment is exercised by ascertaining the taxpayer's taxable income and defining the resulting tax liability of the taxpayer. If it appears, either on the face of a notice of assessment or from elsewhere that the Commissioner has not attempted in good faith to determine the taxable income or has not made an assessment definitive of the tax liability of the taxpayer, the assessment does not attract the protection of s 175. Nor, in my opinion, does s 177(1) make the production of such a purported notice of assessment conclusive evidence of the due making of the assessment. 31 The variety of matters upon which the applicant sought to rely go no further than establishing that the respondent might have taken an alternative view as to the assessment. The matters relied upon could usefully be raised in Pt IVC proceedings in challenging the amount of the tax liability, however, they do not assist in the determination of the validity of the assessment itself in the Hickman sense. 32 Accordingly, the applicant's grounds that challenge the validity of the assessment are not made out and must fail. Given my findings below in relation to the validity of the Garnishee Notices, I need not consider whether the Garnishee Notices were themselves issued for an improper purpose.


case_text: The reference to a 'physical address' lends itself to the concept of an address at which articles may be physically left, as opposed to a place to which articles may be posted. The observations of Black CJ in Sarikaya v Victorian Workcover Authority [1997] FCA 1372 ; (1997) 80 FCR 262 at 263, albeit in a slightly different context, tends to support this view: In the present context, a post office box is not, in my view, the "address of a place" at which a document may be "left" for a person. The ordinary notion of a "post office box" is of a container at a post office into which mail that has been duly posted is placed by the postal authorities for retrieval by or on behalf of the holder of the box. Whether or not such a box is, in this context, the "address of a place", it is not the address of a place at which a document may be "left" by way of service. 43 Those observations were made by Black CJ in the context of O 7, r 6(1) of the Federal Court Rules (Cth) which requires a party to a proceeding to provide an address for service at which documents may "be left for the person". Looking at reg 36 on its own, the question is only whether the address is a physical address, as opposed to the other question of whether the address is one at which articles can actually be left. However, the similarity is more obvious when reg 36 is viewed in conjunction with reg 40(1), which provides that, where a physical address is given by a person, service can be effected by "leaving a copy of the document at that address". Therefore, the question really is whether the address is one at which articles are capable of being left. If one answers that question in the negative the address is not one at which a document is capable of being left it follows that the address cannot constitute a physical address for the purposes of the Regulations. 44 Ordinarily, a person cannot leave articles at a post office box, but rather must send the article by way of post, which the postal authority will then deliver to the box. There is no doubt that the physical post office box is a tangibly identifiable place, and in that sense, it is a physical place. However, it does not follow that it is a physical address for the purposes of reg 40(1). In my view a post office box address cannot constitute a physical address because it is, ordinarily, an address to which articles can only be posted. 45 The second issue is whether the applicant actually gave the respondent a preferred address for service. The evidence shows that the applicant gave the relevant post office box address in her income tax return for the year ended 30 June 2004. Some doubt was raised about this at the hearing, however I am content to proceed on the basis that the post office box address was the applicant's preferred address for service. It is therefore unnecessary to consider reg 38 which provides for substitution of a preferred address for service.


case_text: Of particular importance in this case is the use by Darrell Lea of darker shades of purple in the packaging of its seasonal chocolate products at Christmas in the years 2000-2004. Darrell Lea used a purple and bronze copper theme in association with Darrell Lea signage and brand usage. The purple is like that used by Cadbury. It is distinct from the lighter shade boysenberry. This was the only evidence isolating a specific decision by Darrell Lea to use purple. If this decision were made with the intention of misleading consumers into thinking that Darrell Lea products were associated with Cadbury, that would be strong evidence that such misleading in fact occurred: Australian Woollen Mills Limited v F S Walton & Co [1937] HCA 51 ; (1937) 58 CLR 641 at 657. 44 The primary evidence as to this matter was given by Ms Anne McGlinchey who is currently an independent marketing and retail consultant but worked for Darrell Lea and an associated company from 1989 to 2003. In particular from January 2000, after returning from maternity leave, she was Darrell Lea's Marketing Manager until she left the company in October 2003. 45 When Ms McGlinchey commenced her duties as Marketing Manager she reported to Mr Bruce Goldman the then General Manager of Retail and Marketing. At the time she believed that the Darrell Lea shops looked "tired and dowdy and needed to be freshened and updated". There were too many different colours used, products were too difficult to find and the store layout was not clear. Each store presented its own range of in-store gifts which differed not only from one store to another but also within stores. 51 While Ms McGlinchey did not have the power to make the ultimate decision on colour choice, she was a key figure in the process and on her unchallenged evidence the genesis of the idea for the Christmas 2000 colour scheme was hers. Darrell Lea also called Ms Hurst, who took over Ms McGlinchey's position, and Mr Michael Lea, one of the two directors of the company and who has had a lifetime's experience in its business. Mr Jason Lea, Mr Michael Lea's cousin, who was a director at the time of the 2000 Christmas planning, has recently died. If one accepts Ms McGlinchey, Ms Ettia and Ms Hurst, as I do, as truthful and reliable witnesses, it just seems inherently unlikely that Mr Goldman or Mr Tolmie would have harboured, unbeknowns to Ms McGlinchey, Ms Ettia and Ms Hurst, a secret purpose to misappropriate Cadbury's business by deliberately misleading consumers. As Walton makes clear, this would be the act of a dishonest trader. An allegation of such a kind falls to be assessed in the light of the rule in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336.


case_text: Mr Goldman and the Managing Director at the time Mr Ian Tolmie were not called and are apparently available (in Sydney) but I do not think Cadbury gains any assistance from the rule in Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298. In Heydon, Cross on Evidence , 7 th Australian ed, 2004 at 41 the learned author says: "...while the rule in Jones v Dunkel permits an inference that the untendered evidence would not have helped the party who failed to tender it, and entitles the trier of fact to take that into account in deciding whether to accept any particular evidence which relates to a matter on which the absent witness could have spoken, and the more readily to draw any inference fairly to be drawn from the other evidence by reason of the opponent being able to prove the contrary had the party chosen to give or call evidence, the rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it. The rule cannot be employed to fill gaps in the evidence, or to convert conjecture and suspicion into evidence." And as the learned author had earlier said (at 39) in formulating the basic rule, failure to call a witness " may , not must, in appropriate circumstances , lead to the inference that the uncalled evidence would not have assisted that party's case" (emphasis added).


case_text: While Ms McGlinchey did not have the power to make the ultimate decision on colour choice, she was a key figure in the process and on her unchallenged evidence the genesis of the idea for the Christmas 2000 colour scheme was hers. Darrell Lea also called Ms Hurst, who took over Ms McGlinchey's position, and Mr Michael Lea, one of the two directors of the company and who has had a lifetime's experience in its business. Mr Jason Lea, Mr Michael Lea's cousin, who was a director at the time of the 2000 Christmas planning, has recently died. If one accepts Ms McGlinchey, Ms Ettia and Ms Hurst, as I do, as truthful and reliable witnesses, it just seems inherently unlikely that Mr Goldman or Mr Tolmie would have harboured, unbeknowns to Ms McGlinchey, Ms Ettia and Ms Hurst, a secret purpose to misappropriate Cadbury's business by deliberately misleading consumers. As Walton makes clear, this would be the act of a dishonest trader. An allegation of such a kind falls to be assessed in the light of the rule in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336.


case_text: Cadbury tendered (over the objection of Darrell Lea: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 3) [2006] FCA 364) a "Chocolate Sensory Study" consumer research report commissioned by it in August 2005 and conducted in October 2005 by Ms Caroline Shelton of National Field Services. The research methodology was provided by a firm called QBrand Consulting after consultation with Professor Roger Layton, Emeritus Professor of Marketing at the University of New South Wales. 70 Although by this time the trial date had already been fixed and the survey was obviously conducted for the purpose of the trial, Cadbury did not comply with Practice Note No 11, issued by the Chief Justice of the Federal Court in 1994, which provides: "11. Survey evidence There are many problems in obtaining acceptable survey evidence including the use of relevant and unambiguous questions and whether the actual conduct of the survey (including methodology) is satisfactory. The admissibility of surveys is always a matter for the trial Judge to determine but the risk of the survey being rejected or given little, if any, weight at the trial may be diminished if the following procedure when a party seeks to have a survey conducted. Subject to other directions of the Court in the particular case, the Court expects that this practice will usually be followed: 1. Notice should be given in writing by the party seeking to have the survey conducted to the other parties to the proceeding. 2. The notice should give an outline of a. the purpose of the proposed survey; b. the issue to which it is to be directed; c. the proposed form and methodology; d. the particular questions that will be asked; e. the introductory statements or instructions that will be given to the persons conducting the survey; f. other controls to be used in the interrogation process. 3. The parties should attempt to resolve any disagreement concerning the manner in which the survey is to be conducted and any of the matters mentioned in 2 above. 4. The matter of the survey should be raised with the Court at the directions hearing as soon as possible after the steps mentioned above have been taken." No explanation was proffered for this non-compliance, which was obviously a deliberate choice by Cadbury and its advisors. 71 Ms Shelton arranged for 102 participants to attend at her firm's premises. They were selected at random from the Melbourne Telephone Directory. Seventy-one per cent were female. They were screened to exclude, amongst other things, people who did not buy chocolate at all or who bought an excessive amount of chocolate. Participants were shown different forms of chocolate (blocks, Easter eggs etc) in batches with wrappings in different colours, one colour for each batch blue, gold, purple, red and green. In fact, all chocolate was from Cadbury, although there was nothing to indicate that to participants.


case_text: Neither the Trade Practices Act provisions, nor the tort of passing off, require, as an essential element of proof, evidence of actual misleading of consumers. Nevertheless such evidence is admissible and in appropriate circumstances can be "very material" and of "some importance": Royal Warrant Holders' Association v Edward Deane & Beal Ltd [1912] 1 Ch 10 at 14-15, cited with approval by Gummow J, with whom Black CJ and Lockhart J agreed, in Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348 at 389. In the present case, it would be useful to have had evidence such as: "I usually buy Cadbury chocolate. I know their chocolate from the purple wrappings and advertising. I saw some purple wrapped chocolate but when I got to the checkout I saw it was Darrell Lea's. But I was in a hurry so I bought it anyway." or "I saw Darrell Lea using purple so I thought they must have been taken over by Cadbury."


case_text: Neither the Trade Practices Act provisions, nor the tort of passing off, require, as an essential element of proof, evidence of actual misleading of consumers. Nevertheless such evidence is admissible and in appropriate circumstances can be "very material" and of "some importance": Royal Warrant Holders' Association v Edward Deane & Beal Ltd [1912] 1 Ch 10 at 14-15, cited with approval by Gummow J, with whom Black CJ and Lockhart J agreed, in Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348 at 389. In the present case, it would be useful to have had evidence such as: "I usually buy Cadbury chocolate. I know their chocolate from the purple wrappings and advertising. I saw some purple wrapped chocolate but when I got to the checkout I saw it was Darrell Lea's. But I was in a hurry so I bought it anyway." or "I saw Darrell Lea using purple so I thought they must have been taken over by Cadbury." 91 The likely behaviour of shoppers or consumers in relation to goods normally sold to the general public is a "jury question", that is to say it is a question for the tribunal of fact, whether a jury or, as in the present case, a judge sitting alone: General Electric Co v General Electric Co Ltd [1972] 1 WLR 729 at 738 per Lord Diplock, cited by Gummow J in Interlego at 387-388, Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504 at 527, Symonds Cider & English Wine Company Ltd v Showerings (Ireland) Ltd [1997] IEHC 1 at [20] and the cases discussed in my earlier ruling Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363.


case_text: An essential part of Cadbury's case is that the shade of purple it uses, considered in isolation, distinguishes Cadbury from its competitors. In other words, the colour purple in the context of chocolate has a secondary meaning as an identifier of Cadbury chocolate products. Reference was made to a trade mark case BP plc v Woolworths Ltd (2005) 212 ALR 79 where Finkelstein J held that a shade of green could be registered as a trade mark for BP because customers identified BP service stations by the colour green alone (the Full Court has recently granted leave to appeal: Woolworths Ltd v BP plc [2006] FCAFC 5).


case_title: Woolworths Ltd v BP plc [2006] FCAFC 52


case_text: This is purely a question of fact. Thus in Cadbury Schweppes Pty Ltd v The Pub Squash Co Ltd [1981] RPC 429 at 460-461 Powell J, in a judgment upheld by the Privy Council, held that although the plaintiff's soft drink "Solo" in a lemon coloured can had achieved a level of recognition and acceptance, it did not follow that the proprietor of "Solo" thereby became entitled to a monopoly in yellow coloured cans or that the mere fact the defendant adopted a yellow can for its product dictated a finding of passing off. In other words, it may not be enough that a particular colour is associated in the mind of consumers with a particular product. In the present case, purple may prompt in the reasonable consumers' mind a remembrance that purple has been associated with Cadbury chocolate, but not necessarily the conclusion that the purple packaged product presented for sale to him or her therefore must be Cadbury's. 84 In the present case Cadbury's own evidence (see [18] above) speaks of the elements in the "brand architecture": the name Cadbury, the colour purple, the glass and a half device etc. The architectural metaphor is apt. The architecture of a building involves the whole, not just one component such as a roof or wall. Cadbury's marketing shows how the name Cadbury and the colour purple are inextricably intertwined, with each one reinforcing the other and creating a total impact more than the sum of the parts. This is particularly striking in the late 1990s commercials which had not only extensive use of purple but the repetitive mantra "Cadbury is chocolate is Cadbury is chocolate". In any case, since Cadbury is without doubt one of the most well, and favourably, known names in all consumer marketing, and dominates the field of chocolate in Australia, it would be irrational in the extreme for Cadbury not to make the maximum use of the name. 85 In cross-examination Mr Nowicki was pressed to think of an example where the colour purple alone would be used for Cadbury with no indicia of branding such as the Cadbury name and the glass and a half device. There was a noticeable pause, perhaps upwards of half a minute. Eventually Mr Nowicki gave as an example the television show "Dancing with the Stars" on Channel 7 which he said "integrated into that show is specific uses of the colour purple as brand indicia in areas that the production company would not enable us to use other elements of our branding." He was asked: "There's two indicia used, the show is brought to you by Cadbury and in the background is the is the purple colour?... No, within the show specifically, within the production itself there are components independently where we only use purple." Mr Nowicki had previously said that the "show itself is brought to you by Cadbury". No program of "Dancing with the Stars" was in evidence, but if Cadbury were paying substantial amounts to sponsor a high-rating television show it is inconceivable that the name Cadbury would not be transmitted aurally and visually to viewers, even if some elements of the show, such as sets and costumes, contained only purple. If all that viewers saw in a program about dancing was some use of purple, why should they think of chocolate at all, let alone Cadbury chocolate? I am not satisfied that "Dancing with the Stars" is a true example of the purple colour alone used without the name Cadbury. 86 Shortly after that passage of evidence there was a mid-morning break. Upon resumption, Mr Nowicki volunteered that he had thought of another example where purple alone was used. The example he gave was the 2002 Manchester Commonwealth Games where the Queen's baton was purple as part of the Cadbury marketing plan associated with the event. This would have been a transient use, in the most literal sense. 87 I conclude that, for all practical purposes, Cadbury's use of the colour purple in marketing, promotion, advertising, packaging, and point of sale is always associated with the famous name Cadbury. What Cadbury said in its final submissions as to marketing and sponsorship activities (triathlons, Sydney Olympics etc) is true generally of Cadbury in the marketplace: "Each of these activities involve the use of Cadbury purple in connection with 'Cadbury'."


case_text: The likely behaviour of shoppers or consumers in relation to goods normally sold to the general public is a "jury question", that is to say it is a question for the tribunal of fact, whether a jury or, as in the present case, a judge sitting alone: General Electric Co v General Electric Co Ltd [1972] 1 WLR 729 at 738 per Lord Diplock, cited by Gummow J in Interlego at 387-388, Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504 at 527, Symonds Cider & English Wine Company Ltd v Showerings (Ireland) Ltd [1997] IEHC 1 at [20] and the cases discussed in my earlier ruling Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363.


case_title: Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504 at 527


case_title: Symonds Cider & English Wine Company Ltd v Showerings (Ireland) Ltd [1997] IEHC 1 at [20]


case_title: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363


case_text: Although s 52 provides the public with a wider protection from deception than the common law of passing off ( Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 208), there is a considerable overlap between the two causes of action. In the present case neither side sought to draw any significant distinction between them. Realistically there is no basis on which Cadbury could succeed under the Trade Practices Act but fail on passing off, or vice versa.


case_text: Since it is common ground that Darrell Lea products in fact have no sponsorship, approval or connection with Cadbury or its products, and that Darrell Lea's business is entirely unconnected with that of Cadbury, the critical issues in this case relate to the representations that, in all the circumstances, Darrell Lea by its conduct would convey to a hypothetical ordinary and reasonable member of the class constituted by prospective purchasers of chocolate products: Campomar v Sociedad Limitadav Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45 at [102] - [105] . 119 In focusing on the representation alleged to be made by Darrell Lea it is important to keep in mind the consistent rejection by courts of the highest authority of any generalized notion of unfair trading. Attention must be confined to the statutory causes of action and the common law tort of passing off. (The present case is not concerned with the unconscionability sections of the Trade Practices Act .) In Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 579 at 508 Dixon J said that in "British jurisdictions" courts of equity have not "thrown at the protection of an injunction around all intangible elements of value, that is, value in exchange, which may flow from the exercise by an individual of his powers or resources whether in the organization of a business or undertaking or the use of ingenuity, knowledge, skill or labor. This is sufficiently evidenced by the history of the law of copyright and by the fact that the exclusive right to invention, trademarks, designs, trade name and reputation are dealt with in English law as special heads of protected interests and not under a wide generalization." That passage was endorsed by the High Court in Moorgate Tobacco Company Ltd v Philip Morris Ltd (No 2) [1984] HCA 73 ; (1984) 156 CLR 414 at 445 and Campomar at [4].


case_text: In focusing on the representation alleged to be made by Darrell Lea it is important to keep in mind the consistent rejection by courts of the highest authority of any generalized notion of unfair trading. Attention must be confined to the statutory causes of action and the common law tort of passing off. (The present case is not concerned with the unconscionability sections of the Trade Practices Act .) In Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 579 at 508 Dixon J said that in "British jurisdictions" courts of equity have not "thrown at the protection of an injunction around all intangible elements of value, that is, value in exchange, which may flow from the exercise by an individual of his powers or resources whether in the organization of a business or undertaking or the use of ingenuity, knowledge, skill or labor. This is sufficiently evidenced by the history of the law of copyright and by the fact that the exclusive right to invention, trademarks, designs, trade name and reputation are dealt with in English law as special heads of protected interests and not under a wide generalization." That passage was endorsed by the High Court in Moorgate Tobacco Company Ltd v Philip Morris Ltd (No 2) [1984] HCA 73 ; (1984) 156 CLR 414 at 445 and Campomar at [4].


case_title: Moorgate Tobacco Company Ltd v Philip Morris Ltd (No 2) [1984] HCA 73 ; (1984) 156 CLR 414 at 445


case_text: In relation to passing off, a statement by Lord Oliver in Reckitt & Colman Ltd v Borden Inc (1990) 17 IPR 1 at 7 is valuable not only for its statement of the law but for its reminder that these kinds of cases turn essentially on their own particular facts. His Lordship said: "Although your Lordships were referred in the course of argument to a large number of reported cases, this is not a branch of the law in which reference to other cases is of any real assistance except analogically. It has been observed more than once that the questions which arise are in general questions of fact. Neither the appellants nor the respondents contend that the principles of law are in any doubt. The law of passing off can be summarised in one short general proposition - no man may pass off his goods as those of another. More specifically, it may be expressed in terms of the elements which the plaintiff in such an action has to prove in order to succeed. These are three in number. First, he must establish a goodwill or reputation attached to the goods or services which he supplies in the mind of the purchasing public by association with the identifying get up (whether it consists simply of a brand name or a trade description, or the individual features of labelling or packaging) under which his particular goods or services are offered to the public, such that the get up is recognised by the public as distinctive specifically of the plaintiff's goods or services. Secondly, he must demonstrate a representation by the defendant to the public (whether or not intentional) leading or likely to lead the public to believe that goods or services offered by him are the goods or services of the plaintiff. Whether the public is aware of the plaintiff's identity as the manufacturer or supplier of the goods or services is immaterial, as long as they are identified with a particular source which is in fact the plaintiff's. For example, if the public is accustomed to rely upon a particular brand name in purchasing goods of a particular description, it matters not at all that there is little or no public awareness of the identity of the proprietor of the brand name. Thirdly, he must demonstrate that he suffers, or, in a quia timert action, that he is likely to suffer damage by reason of the erroneous belief engendered by the defendant's misrepresentation that the source of the defendant's goods or services is the same as the source of those offered by the plaintiff." 121 The findings above lead to these conclusions. Cadbury and Darrell Lea are competitors in the retail chocolate market, yet they each have distinctive product lines which are sold from different sorts of premises under distinctive trade names. They have distinct identities in the market place. Cadbury does not own the colour purple and does not have an exclusive reputation in purple in connection with chocolate. Darrell Lea is entitled to use purple, or any other colour, as long as it does not convey to the reasonable consumer the idea that it or its products have some connection with Cadbury. I am not satisfied that this has occurred, or is likely to occur. 122 There will be an order that the application be dismissed. Darrell Lea foreshadowed an application for indemnity costs. The question of costs will be adjourned to a date to be fixed. Outlines of submissions are to be filed by Darrell Lea seven days and by Cadbury three days before the adjourned date. I certify that the preceding one hundred and twenty-two (122) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey . Associate: Dated: Counsel for the Applicant: A J Myers QC and MD Wyles Solicitors for the Applicant: Mallesons Stephen Jaques Counsel for the Respondent: C Golvan SC and S Ricketson Solicitors for the Respondent: Middletons Lawyers Dates of Hearing: 20,21,22,27,28,29,30,31 March, 3,4,5,6 April 2006 Date of Judgment: 27 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/446.html


case_text: In Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425, Gleeson CJ, Gaudron and Gummow JJ, after adverting to the test of apprehended bias in curial proceedings, said at [28]: 'Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.' 21 A reading of the transcript does not disclose any statement or conduct that might give rise to a suggestion that might give rise to apprehended bias. There is nothing in the Tribunal's reasons that could lead a reasonable lay observer to apprehend that the Tribunal might not bring an impartial mind to the determination of the matter before it. 22 It cannot be said that simply because the Tribunal rejected the appellant's account a fair-minded lay person might think that the Tribunal might not have brought an impartial mind to the hearing. That submission, if accepted, would make decision making impossible.


case_text: Section 420 is facultative in that it absolves the Tribunal from some of the constraints imposed on courts of law: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 628, 635, 642-644, 659, and 664-668. Section 420 does not impose a duty upon the Tribunal which, if breached, would involve jurisdictional error. 26 Ground number 5 appears to be a restatement of ground number 3, together with the further complaint that the Tribunal was actually biased. No complaint of that kind was made to the Federal Magistrate. No particulars of the complaint had been made on this appeal. 27 I am unable to discern any fact or circumstance which could lead to the conclusion that the Tribunal was actually biased.


case_text: Section 422B provides that Division 4 of Part VII of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule. To that end, the Tribunal is obliged to comply with Division 4. Section 422B has been recently considered by the Full Court of this Court in Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 ; (2006) 151 FCR 214. In that case, the Court was called upon to construe s 51A which is relevantly in the same terms as s 422B. The Court held that the intention of the legislature was to provide a comprehensive procedural code for procedural fairness and at the same time to exclude the common law natural justice hearing rule, although the bias rule is not excluded. The legislature intended to reverse the result of the decision in Re Minister for Immigration and Multicultural Affairs; ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 where the majority held that the then wording of the Act did not exclude the common law rules of natural justice. There is, on the strength of that authority, no obligation on the decision maker to provide procedural fairness except in accordance with s 422B. 33 In this case, there is no suggestion that the Tribunal did not comply with s 422B except insofar as it is complained that the Tribunal did not comply with s 424A. 34 In paragraph 4 of the grounds the appellant asserts that the Tribunal failed to act in accordance with s 424A of the Act in that the Tribunal did not provide to the applicant particulars of the information that indicated that forged or fraudulently obtained documents are readily available in Bangladesh. 35 That ground was raised in the application for review by the Magistrate and abandoned before the Magistrate.


case_text: There was no obligation to provide the appellant with the information referred to because it was not information specifically about the applicant or another person but was information about a class of person of which the applicant is a member: VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 ; VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178.


case_title: QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92


case_title: VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178


case_text: The first contention may be accepted but is itself irrelevant: Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27. The relevant application in s 424(3)(b) is the application for review. 50 His contention that he did not provide the July 1996 declaration for the purpose of the application must be rejected. The July 1996 declaration was provided in response to the s 424A letter received from the Tribunal. While the applicant explained that in some respects the July 1996 declaration was not accurate, it was still provided to the Tribunal for the purpose of the application. 51 Ground 6 of the written submissions claims that the Tribunal made a jurisdictional error in that it ignored relevant material and/or failed to take into account a relevant consideration.


case_text: His Honour then referred to Freeman v National Australia Bank Ltd [2006] FCAFC 67 , and earlier cases which the Full Court there approved, and summarised their effect at [52] as follows: "in determining whether particular proceedings are in fact vexatious, a court may take account of proceedings in other courts where, for example, they have authoritatively resolved the particular issue against the person instituting the proceedings. The Full Court also noted that the expression 'habitually and persistently' implies more than 'frequently', and suggests a degree of stubbornness on the part of the person in question. The element 'without any reasonable ground' is of course to be determined objectively. It is immaterial that the person may believe in the justice of his or her argument, and may not understand that the argument has been authoritatively rejected." His Honour considered those observations applicable to s 42B(1)(b). 5 His Honour concluded at [54] as follows: "The Tribunal was entitled to have regard to [the appellant's] persistence, over many years, in seeking to have set aside the 4 November 1999 decision. It was entitled to have regard to his entire course of dealings in relation to social security benefits since his accident in 1991, and the fact that his latest foray before it involved an argument that could, and should, have been addressed years earlier. In those circumstances, I can see no error in the Tribunal's having concluded that a limited direction of the kind given was warranted." 6 The respondent has applied for security for costs in the sum of $10,000. Apart from recounting the lengthy history of the matter already recorded by Justice Weinberg, the respondent's solicitor also noted various costs orders made against the applicant, none of which has been complied with. To the extent they have been taxed, they total $30,855.20. Other costs orders are yet to be taxed. 7 A bankruptcy notice has issued against the appellant in the sum of $30,855.20. He did not pay the amount of the debt or make arrangements to the creditor's satisfaction within the time stipulated in the notice.


case_text: A single judge may determine an application for security for costs in respect of an appeal: Dranichnikov v Centrelink [2002] FCA 1622 ( Dranichnikov ). 9 The appellant did not appear on the application for security. I was told by the respondent's solicitor that the appellant had informed him that he was unable to attend because he was unwell. The appellant also said that his daughter, who usually assisted him in court, was also unable to attend. There was no other evidence of illness, and the appellant did not ask for an adjournment. 10 As the history of the various proceedings makes clear, the matter before the Tribunal had already been the subject of a series of decisions made internally by Centrelink officers, the SSAT, the Tribunal, the Federal Magistrates Court, this Court and the High Court. 12 The appellant's prospects of success on the appeal are a relevant consideration on any application for security: Dranichnikov at [20]. As Bowen CJ said in J & M O'Brien Enterprises Pty Ltd v The Shell Co of Australia Ltd (No 2) (1983) 70 FLR 261 at 264, that is especially so in the case of an appeal, where the appellant has had his day in court. The matters the appellant wishes to raise on the appeal have already been decided against him. As appears from Dranichnikov at [23], that is a consideration pointing to the appropriateness of an order for security. The appellant's appeal is in my view without merit. There is nothing to suggest any error in the decision under appeal.


case_title: Cowell v Taylor (1885) 31 Ch D 34

case_text: The appellant has had his day in court on the frivolous and vexatious issue before Weinberg J. In Cowell v Taylor (1885) 31 Ch D 34 at 38 Bowen LJ said: "The general view is that poverty is no bar to a litigant .... There is an exception in the case of appeals, but there the appellant has had the benefit of a decision by one of Her Majesty's Courts, and so an insolvent party is not excluded from the Courts, but only prevented, if he cannot find security, from dragging his opponent from one Court to another." See also Ciappina v Ciappina (1983) 70 FLR 287 at 290 and Tait v Bindal People [2002] FCA 322.


case_title: Ciappina v Ciappina (1983) 70 FLR 287


case_title: Tait v Bindal People [2002] FCA 322


case_text: The appellant's prospects of success on the appeal are a relevant consideration on any application for security: Dranichnikov at [20]. As Bowen CJ said in J & M O'Brien Enterprises Pty Ltd v The Shell Co of Australia Ltd (No 2) (1983) 70 FLR 261 at 264, that is especially so in the case of an appeal, where the appellant has had his day in court. The matters the appellant wishes to raise on the appeal have already been decided against him. As appears from Dranichnikov at [23], that is a consideration pointing to the appropriateness of an order for security. The appellant's appeal is in my view without merit. There is nothing to suggest any error in the decision under appeal.


case_text: the huts and the slab on which they stood were improvements within this definition, as were the gardens, fences and the lavatory. The definition includes things which would normally be characterized as fixtures, usually owned by the owner of the fee simple or, in the case of Crown land, the Crown. Section 361A clearly contemplates ownership of improvements by somebody other than the Crown or the holder of the fee simple title pursuant to a deed of grant. The intention cannot have been to authorize the grant of a lease to the owner of improvements who already held the fee simple title. In Commissioner of Main Roads v The North Shore Gas Company Limited (1967) 120 CLR 118 at 127, the majority of the High Court (Barwick CJ, McTiernan, Kitto and Taylor JJ) said: Differences of opinion from time to time have arisen concerning the true meaning and operation of the principle expressed in the maxim "quicquid solo plantatur, solo cedit ..." but, primarily, it is applied to determine the right of the owner of land to things affixed to or imbedded in the soil. Whatever is fixed to the freehold is said to become part of it and is subjected to the same rights of property as the land itself ... . The presumption is said to be rebuttable and, it seems to us, it must be so when a statute empowers someone other than the owner of land to affix to or embed things in the soil and yet retain ownership of the things so affixed or embedded. Section 361A seems necessarily to contemplate such a situation. As was pointed out in argument, ss 236, 237 and 238 of the Land Act 1962 also seem to have contemplated somebody other than the Crown owning improvements situated on Crown land. It has not been submitted that any person other than Mr Ludwick might own improvements erected by him on the Bukki block. Since the hearing in this matter, the Minister for Lands has indicated that he is satisfied that the two sheds stood on the land at the date of the deed of grant and that Mr Ludwick owned them. The Council is also satisfied as to those matters. The State submits that although s 520(b) of the Land Act 1994 continues the application of s 361A to deeds of grant made prior to the commencement of that Act, it does not continue the operation of other relevant provisions of the Land Act 1962. Further, it submits that pursuant to s 511 of the Land Act 1994 , references in s 361A to provisions of the Land Act 1962 are to be taken as references to the corresponding sections in the Land Act 1994 . Counsel for Mr Ludwick submit that s 20 of the Acts Interpretation Act 1954 (Qld) (the "State Interpretation Act") preserves his rights pursuant to s 361A. Section 361A provides that the terms of any lease are to be in accordance with "the provisions of this Division", prima facie referring to Division V (Reservations in Deeds of Grant) which is contained in Part XI (Grants, Reserves and Reservations for Public Purposes). Further, s 361A expressly deprives the Minister for Lands of his capacity to refuse to approve a proposed lease pursuant to s 343 of the Land Act 1962 . The State submits that s 57 of the Land Act 1994 now imposes the requirement for ministerial approval, the effect of which would, presumably, also be negated by s 361A. The State submits that the conditions of any lease will be regulated by s 61 of the Land Act 1994 , and not by the "provisions of this Division". Mr Ludwick submits that s 343 (dealing with ministerial approval) and s 344 of the Land Act 1962 (dealing with conditions) continue to apply for the purposes of s 361A.


case_text: question as to whether ss 343 and 344 of the Land Act 1962 or ss 57 and 61 of the Land Act 1994 should be applied as imposing a requirement for ministerial approval of any lease and in fixing its term was, in argument, treated as dependent upon the nature of the entitlement derived by Mr Ludwick pursuant to s 361A. Broadly speaking counsel for Mr Ludwick submit that he obtained a right to a lease upon terms to be determined in accordance with the Land Act 1962. On that basis they submit that s 20(2)(c) of the State Interpretation Act applies so as to preserve such right. That section provides that the repeal or amendment of an Act does not affect a right, privilege or liability acquired, accrued or incurred thereunder. The State submits that Mr Ludwick has no accrued right to a lease but rather a "right arising from an Act" or a "right to take advantage of an enactment", such right being the right to take action in accordance with the law as it is at the time. In support of this argument the State relies upon a line of decisions commencing with Abbott v Minister for Lands [1895] AC 425 and ending with the decision of the Queensland Court of Appeal in Australand Corporation (Qld) Pty Ltd v Johnson [2008] 1 Qd R 203. I need only make brief comments concerning those cases. In Abbott the Judicial Committee of the Privy Council, on appeal from the Supreme Court of New South Wales, considered legislation which permitted any person to tender for the conditional purchase of unsold Crown land. Such a purchase would normally have been subject to a condition requiring three years of bona fide continuous residence prior to grant of the freehold title. However, where the purchaser already held fee simple land a purchase of adjoining land would not have been subject to the condition of residence. At some stage the relevant statute was amended to remove the advantage previously available to existing landholders. The question was whether or not a landholder could purchase adjoining land upon the previous, more favourable conditions. At 431, the Judicial Committee said: It may be, as Windeyer J. observes, that the power to take advantage of an enactment may without impropriety be termed a "right." But the question is whether it is a "right accrued" within the meaning of the enactment which has to be construed. Their Lordships think not, and they are confirmed in this opinion by the fact that the words relied on are found in conjunction with the words "obligations incurred or imposed". They think that the mere right (assuming it to be properly so called) existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed a "right accrued" within the meaning of the enactment.


case_text: question as to whether ss 343 and 344 of the Land Act 1962 or ss 57 and 61 of the Land Act 1994 should be applied as imposing a requirement for ministerial approval of any lease and in fixing its term was, in argument, treated as dependent upon the nature of the entitlement derived by Mr Ludwick pursuant to s 361A. Broadly speaking counsel for Mr Ludwick submit that he obtained a right to a lease upon terms to be determined in accordance with the Land Act 1962. On that basis they submit that s 20(2)(c) of the State Interpretation Act applies so as to preserve such right. That section provides that the repeal or amendment of an Act does not affect a right, privilege or liability acquired, accrued or incurred thereunder. The State submits that Mr Ludwick has no accrued right to a lease but rather a "right arising from an Act" or a "right to take advantage of an enactment", such right being the right to take action in accordance with the law as it is at the time. In support of this argument the State relies upon a line of decisions commencing with Abbott v Minister for Lands [1895] AC 425 and ending with the decision of the Queensland Court of Appeal in Australand Corporation (Qld) Pty Ltd v Johnson [2008] 1 Qd R 203. I need only make brief comments concerning those cases. There is also a particularly useful summary of the question in Resort Management Services Ltd v Noosa Shire Council (1997) 2 Qd R 291, per McPherson JA at 298 and per Fryberg J at 301-308. I was also referred to the decision of the Queensland Court of Appeal in Australand . That matter concerned a statutory right to avoid a contract for the purchase of a prescribe interest in a managed investment scheme where the invitation to subscribe had been issued in contravention of a provision of the Corporations Law (now repealed). The provision was repealed with effect from 1 July 1998. In certain cases, the transitional provisions continued the operation of the section until 1 July 2000. On 8 September 2003 the appellants purported to avoid their contracts pursuant to the section. At first instance the primary Judge held that such avoidance was of no effect. The Court of Appeal upheld that decision. I was particularly referred to a passage in the judgment of Keane JA at [113]-[117]. That passage offers a useful commentary on the cases to which I have referred but, with great respect, it does not seem to take the matter any further.


case_text: Director of Public Works v Ho Po Sang [1961] AC 901, the Judicial Committee considered a matter arising under Hong Kong planning law. The law contemplated the exercise of a vice-regal discretion to permit rebuilding on land occupied by tenants of the owner. Relevantly, their Lordships observed at 922: It may be, therefore, that under some repealed enactment a right has been given but that in respect of it some investigation or legal proceeding is necessary. The right is then unaffected and preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given. Upon a repeal the former is preserved by the Interpretation Act. The latter is not. His Honour referred to Ho Po Sang where the relevant party was held to have had only a "hope or expectation" and continued: The rights conferred by the Aboriginal Lands Rights Act do not fall into this category. On the other hand the Act does not in terms expressly confer a right in the land on the applicant at the time the claim is made. It envisages that there will be an investigation by the Minister of the facts and if the facts establish that the conditions in the definition are satisfied the Minister is then bound to grant the claim. If the Minister refuses, the court on appeal again investigates the same matters but the onus is put on the Minister. As it seems to me, assuming the conditions were in fact satisfied, the Land Council did not merely have a right to have its claim investigated; it had a right to have the claim granted. If the Minister wrongly refused to grant it, it had the right to have the court grant it. The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional. At 696 his Honour said: These decisions satisfy me that a statutory right will be preserved notwithstanding the repeal or amendment of the statute even though the right can only be implemented by a non-discretionary decision of an official or a court, provided that the statutory machinery for obtaining that decision has been in set in train before the repeal or amendment. The cases contemplate at least three distinct situations in which s 20 might be engaged. Firstly, the relevant legislation might create a right which, by force of the legislation, accrues without any qualification or requirement for further action. Such a right will survive repeal of the relevant legislation. Secondly, the legislation may confer a right upon persons having certain qualifications. Such legislation may contemplate an investigation to determine whether a particular person has the relevant qualifications. Using the language of Ho Po Sang , there may be a need for investigation to ascertain whether the requirement for such qualifications is satisfied. Such a right will also survive repeal of the relevant statute. That situation is to be distinguished from that in which an investigation is carried out for the purpose of determining whether or not a right should be granted. The former situation was considered by the New South Wales Court of Appeal in the Land Council case where it was said that a right which could only be implemented "by a non-discretionary decision of an official or a court" would survive, "provided that any statutory machinery has been set in train before the repeal or amendment." The "non-discretionary decision" seems to be the equivalent of the investigation contemplated in Ho Po Sang . Finally, where a particular procedure has been commenced, there may be a right to have the procedure completed in accordance with the statute in its unrepealed form. This was the case in Esber . Pursuant to s 361A(2) the person "shown to own such improvements shall be entitled" to the grant of a lease. Much of the argument in this matter proceeded upon the basis that satisfaction of the Minister for Lands and the Council as to ownership of the improvements was a condition precedent to any right conferred upon the owner. However such an approach puts too much emphasis upon the form of the section and too little upon its clear intention. There can be no doubt that the intention was that the owner of improvements be entitled to a lease. It was necessary for the Council (as trustee) and the Minister for Lands to be satisfied that a particular person was the person entitled to a lease relating to the improvements in question. However that requirement seems to be a process of the kind contemplated in Ho Po Sang , namely an investigation necessary in order to give effect to an entitlement, rather than a condition precedent to such entitlement.


case_title: Mathieson v Burton (1970) 124 CLR 1

case_text: Mathieson v Burton (1970) 124 CLR 1, the High Court was concerned with legislation which provided that following the death of a lessee of prescribed premises, a child of that lessee, over the age of 21 years, who was residing with the lessee immediately before his or her death, could, until grant of probate or letters of administration, continue to exercise the same rights of possession as the deceased lessee would have done had he or she lived. In 1968 the legislation was amended to narrow the class of protected person. The respondent to the appeal in the High Court was the daughter of a deceased lessee who had died in 1958. There had been no grant of probate or letters of administration. The daughter claimed the right to occupy the premises pursuant to the legislation in its unamended form. The High Court upheld her claim. In particular, at 23, Gibbs J said: In my opinion when the Act of 1968 was passed the respondent had an existing right to continue in possession of the subject premises. That right had arisen out of, and had been defined by, reference to, facts that had occurred before the Act of 1968 was passed. On behalf of the appellant it was submitted that the so-called right was in truth merely an immunity or protection from eviction which endured only so long as the statutory provision creating it remained in force. With all respect, this submission gives insufficient force to the words of s. 83A(1); that subsection purports to create and confer a right of the same kind as the lessee would have had if he had lived and I can see no justification for ignoring these words and refusing to recognize as a right that which the legislature has expressly described as such. It is true that the right was both personal and temporary it was not capable of assignment and endured only until representation of the estate of the deceased lessee should be granted or until a court of competent jurisdiction should make an order to putting the respondent out of possession ... However, to say ... that the right "is of a qualified, limited and transitory nature" is to define or explain the nature of the right but is not to deny its existence.


case_text: NSW Aboriginal Land Council v Minister Administering The Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685, the New South Wales Court of Appeal considered the terms of Aboriginal land rights legislation. Such legislation had provided that any transfer of land to an Aboriginal Land Council should be in fee simple. In May 1986 the Act was amended to provide that in certain circumstances, such land should be granted by way of lease in perpetuity. On 26 April 1984, the Land Council had applied to the Minister for the transfer of certain land. The Minister refused the claim. The Council appealed to the Land and Environment Court. On 3 September 1987 the Minister decided to approve the application to the extent of granting a lease in perpetuity under the amended legislation. In the Land and Environment Court, the Land Council sought a declaration that it was entitled to a transfer in fee simple. The Court of Appeal held that a statutory right would be preserved, notwithstanding the repeal or amendment of the statute, even if the right could only be implemented by a non-discretionary decision of an official or a court, provided that the statutory machinery for obtaining that decision had been set in force before the repeal or amendment. At 693-4, Hope JA, with whom the other members of the Court agreed, said: In my opinion ... the power which s 36(7) confers upon the Land and Environment Court is not a discretionary power but a power which it is bound to exercise in favour of the claimant in the circumstances specified in the subsection. What then is the nature of the right which the Land Council had after it had made its claim, when it claim was being investigated by the Minister, and when it lodged its appeal to the Land and Environment Court. It is easier first to say what it was not. It was not a mere right existing in the members of the relevant class of the community "to take an advantage of an enactment, without any act done by an individual towards availing himself of that right"..., nor was it a right to set in train an application for a grant which the Minister or on appeal, the court might, as a matter of discretion, grant or refuse. ... The cases contemplate at least three distinct situations in which s 20 might be engaged. Firstly, the relevant legislation might create a right which, by force of the legislation, accrues without any qualification or requirement for further action. Such a right will survive repeal of the relevant legislation. Secondly, the legislation may confer a right upon persons having certain qualifications. Such legislation may contemplate an investigation to determine whether a particular person has the relevant qualifications. Using the language of Ho Po Sang , there may be a need for investigation to ascertain whether the requirement for such qualifications is satisfied. Such a right will also survive repeal of the relevant statute. That situation is to be distinguished from that in which an investigation is carried out for the purpose of determining whether or not a right should be granted. The former situation was considered by the New South Wales Court of Appeal in the Land Council case where it was said that a right which could only be implemented "by a non-discretionary decision of an official or a court" would survive, "provided that any statutory machinery has been set in train before the repeal or amendment." The "non-discretionary decision" seems to be the equivalent of the investigation contemplated in Ho Po Sang . Finally, where a particular procedure has been commenced, there may be a right to have the procedure completed in accordance with the statute in its unrepealed form. This was the case in Esber . It is true that in the Land Council case, Hope JA added the additional requirement that any statutory mechanism have been commenced in order that the entitlement should survive repeal of the relevant statutory provision. In the present case, there is no requirement that the owner take any step for the purposes of s 361A. It was assumed in argument that the owner of improvements was to undertake the task of satisfying the Minister for Lands and the Council of his or her ownership. However the section does not say that, nor does it provide for any particular mechanism to be initiated by the owner. It is possible that Parliament contemplated that the Council or the Minister for Lands would investigate the ownership of improvements with a view to regularizing the position as to ownership and occupancy. The likelihood of such a statutory intention is increased when one considers that the legislation was, as I have said, designed to remedy some of the disadvantage suffered by a severely disadvantaged group in our society. The reference in s 361A(3) to an "application" for the Minister's approval of a lease is to an application by the Council. See s 343. I should also point out that use of the present tense "stands" in s 361A(2)(a) suggests that the entitlement arises at the date of the deed of grant. In my view, the effect of s 361A is to confer a right upon the owner of improvements, subject only to satisfactory investigation of the question of his or her ownership. The right which an owner held pursuant to s 361A, prior to the repeal of the Land Act 1962, was a right to a lease in accordance with that Act. Such right would be within either the first or second category identified above. If the entitlement were to one lease for whatever period the Council decided upon, then that right would survive pursuant to s 20 of the State Interpretation Act. However I consider that s 361A should not be construed as authorizing the grant of only one lease. Section 361A confers an entitlement upon a person who owns improvements on relevant land at a particular point in time. The section does not limit the period during which such a person holds that entitlement. If so entitled as at the date of the deed of grant, an owner will be so entitled for the rest of his or her life. This case provides an example of such an entitlement being addressed many years after the date of the deed of grant. It seems to have been assumed in argument that an owner is entitled to only one lease. Such an approach might not fulfil the apparent objective of allowing the owner of improvements to continue to enjoy the benefits of his or her improvements. The shorter the term of any lease, the less would be the capacity to enjoy such benefit. Section 32C(a) of the State Interpretation Act provides that words in the singular include the plural. It would be more in accordance with the intention of the section if it were read as authorizing the grant of a lease at any time during the life of a relevant person, and regardless of whether any lease had previously been granted pursuant to the section. In the event that such a lease expires during the owner's lifetime, another may be granted. The right to receive a lease is vested in the owner of improvements as at the date of the deed of grant. It cannot be transferred or pass by will or on intestacy. However, where a lease for a fixed term has been granted, and the lessee dies during the term, the right to the balance of the term will be an asset of the estate. Given that the entitlement is to receive a lease from time to time, the better view is that such lease is to be pursuant to the law as it stands at the time at which each lease is granted, and that s 361A should now be read, pursuant to s 511 of the Land Act 1994 , as referring to the relevant provisions of that Act. Counsel for the State submits that s 361A requires that the improvements be situated on the land both at the date of the deed of grant and at the date on which any lease is granted. In my view s 361A should be construed as creating an entitlement to a lease as at the date of the deed of grant, and that subsequent removal of the improvements is irrelevant. The huts were still on the Bukki block as at date of the deed of grant. The foundation slab was, and remains, on the block, having been extended and incorporated into the larger hut. It is probable that there were also gardens, fences and a lavatory on the land at the date of the deed of grant. At least some of the fencing and gardens presently on the block probably pre-date the deed of grant. There is no doubt that there were improvements on the land on 27 October 1986, and that the slabs and, probably, some remnants of earlier fencing and gardens remain at the present time. Section 361A(2) provides that the lease be of the land on which the improvements stand and, where the improvements involve a building or structure used as a residence, a reasonable area of land, being the immediate environs of the improvement. As to the purpose for which the land was used, the relevant time is again the date of the deed of grant. At the time that the Pollards moved on to their land at Bukki in late 1986 or early 1987, Mr Ludwick's niece was living in a small shed on the Bukki block. She resided there for about a year. It is more probable than not that either Mr Ludwick was living there as at 27 October 1986, or that his niece was so residing, or about to commence doing so. Both Mr Ludwick and Ms Yeatman said that their relationship commenced in about 1987. It is reasonable to infer that as at 27 October 1986 the land was being used as a residence. It is possible that it was vacant for a relatively short time, but more probable that it was occupied on that date. In any event a period of temporary vacancy would not detract from the fact that the improvements were being used as a residence. This is particularly so, given that when he left, Mr Ludwick apparently intended to return to the Bukki block after his sojourn at Bilma. His plans changed when he met Ms Yeatman in 1987, but it seems that he (and perhaps they) always intended to move to the Bukki block eventually.


case_text: Esber v The Commonwealth of Australia (1991) 174 CLR 430, the High Court considered the entitlement of a former member of the Defence Force who had applied to redeem weekly payments of compensation so that he might receive a lump sum in lieu as prescribed by the relevant statute. The application was refused. The applicant applied to the Administrative Appeals Tribunal for review of the decision. After application, but before determination, the relevant provision was repealed. The repealing Act provided that proceedings instituted under the earlier legislation, but not completed upon repeal, "may be continued on and after that day and, when the proceedings are so continued, the relevant authority and the Commonwealth shall be parties to those proceedings". Reliance was placed upon s 8 of the Acts Interpretation Act 1910 (Cth) (the "Commonwealth Interpretation Act") which was, in terms, similar to s 20 of the State Interpretation Act . The majority (Mason CJ, Deane, Toohey and Gaudron JJ) held that the relevant section of the earlier Act conferred substantive rights. Their Honours said at 440: If it be assumed that the appellant did not have a right to redemption in the sense first discussed, he had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim. To borrow a sentence from the judgment of Hope JA in NSW Aboriginal Land Council v The Minister ...: "The right might be said to be a conditional one, namely conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional." Once the appellant lodged an application to the Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely "a power to take advantage of an enactment"... . Nor was it a mere matter of procedure ... ; it was a substantive right ... . Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, "although that right might fairly be called inchoate or contingent" ... . This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s.8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act. The cases contemplate at least three distinct situations in which s 20 might be engaged. Firstly, the relevant legislation might create a right which, by force of the legislation, accrues without any qualification or requirement for further action. Such a right will survive repeal of the relevant legislation. Secondly, the legislation may confer a right upon persons having certain qualifications. Such legislation may contemplate an investigation to determine whether a particular person has the relevant qualifications. Using the language of Ho Po Sang , there may be a need for investigation to ascertain whether the requirement for such qualifications is satisfied. Such a right will also survive repeal of the relevant statute. That situation is to be distinguished from that in which an investigation is carried out for the purpose of determining whether or not a right should be granted. The former situation was considered by the New South Wales Court of Appeal in the Land Council case where it was said that a right which could only be implemented "by a non-discretionary decision of an official or a court" would survive, "provided that any statutory machinery has been set in train before the repeal or amendment." The "non-discretionary decision" seems to be the equivalent of the investigation contemplated in Ho Po Sang . Finally, where a particular procedure has been commenced, there may be a right to have the procedure completed in accordance with the statute in its unrepealed form. This was the case in Esber .


case_text: is also a particularly useful summary of the question in Resort Management Services Ltd v Noosa Shire Council (1997) 2 Qd R 291, per McPherson JA at 298 and per Fryberg J at 301-308. I was also referred to the decision of the Queensland Court of Appeal in Australand . That matter concerned a statutory right to avoid a contract for the purchase of a prescribe interest in a managed investment scheme where the invitation to subscribe had been issued in contravention of a provision of the Corporations Law (now repealed). The provision was repealed with effect from 1 July 1998. In certain cases, the transitional provisions continued the operation of the section until 1 July 2000. On 8 September 2003 the appellants purported to avoid their contracts pursuant to the section. At first instance the primary Judge held that such avoidance was of no effect. The Court of Appeal upheld that decision. I was particularly referred to a passage in the judgment of Keane JA at [113]-[117]. That passage offers a useful commentary on the cases to which I have referred but, with great respect, it does not seem to take the matter any further.


case_text: Chang v Laidley Shire Council (2007) 234 CLR 1, the High Court considered Queensland planning legislation which provided for compensation where a change in the relevant legislation caused a reduction in value of an interest in land. In considering the operation of s 20 of the State Interpretation Act, the High Court said at 34: Terms like "right", "interest", "title", "power", or "privilege" when used in the context of a general interpretation provision like s 20 are to be understood by reference to the statute that has been amended or repealed. They are terms that are not used "solely in any technical sense derived exclusively from property law or analytical jurisprudence" ... .