case_text: Any order is discretionary but must be an exercise of discretion that takes into account the usual practice of the Court and the particular circumstances of the proceedings in which the order is sought. And there is no mathematical certainty as to the quantum. The quantification of an appropriate amount by way of security is " certainly not an exact science ": East Grace Corp v Xing (No 1) [2005] FCA 219 at [6] per French J. An order for security in the present proceedings for an appropriate amount provides the Respondent with some certainty that there is in Australia an available fund from which costs may be paid if ordered. 23 In the present proceedings, it is considered that security should be ordered in the sum of $85,000 and should be provided within 21 days. 24 The orders of the Court are: 1. Leave be granted to file the Further Amended Application and Further Amended Statement of Claim , including liberty to join as the Second Respondent Stuart Mitchell Wieland. 2. The Applicants to provide security for costs in the sum of $85,000 within 21 days. 3. The costs of both Notices of Motion be reserved. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 20 March 2008 Counsel for the Applicants: M Lee, J McDonald Solicitors for the Applicants: TressCox Lawyers Counsel for the Respondent: R K Weaver Solicitors for the Respondent: Rodd Peters Date of Hearing: 12 March 2008 Date of Judgment: 20 March 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/373.html


case_outcome: followed

case_text: The purpose of ordering security for costs in such circumstances is to ensure that a respondent has available to it funds within the jurisdiction against which it can enforce any judgment for costs which may ultimately be made in their favour: Energy Drilling Inc v Petroz NL [1989] ATPR 50 ,418. Gummow J there said: [24] The purpose of ordering security for costs against an applicant ordinarily resident outside the jurisdiction is to ensure that a successful respondent will have a fund available within the jurisdiction of this Court against which it can enforce the judgment for costs, so that the respondent does not bear the risk as to the certainty of enforcement in the foreign country and as to the time and complexity of the action there which might be necessary to effect enforcement... On the other hand, the mere circumstance that an applicant is resident outside the jurisdiction does not necessarily invite an exercise of discretion in favour of ordering security, the question being how justice will best be served in the particular case... Cited: Thai Silk Co Ltd v Aser Nominees Pty Ltd (Unreported, Federal Court of Australia, Hill J, 31 May 1989).


case_text: An application for security should also be made promptly: KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 at 196 8 per Beazley J; James v ANZ Banking Group Ltd (No 1) (1985) 9 FCR 442 at 446 per Toohey J.


case_title: KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189


case_title: Logue v Hansen Technologies Ltd [2003] FCA 81 , 125 FCR 590

case_text: Indeed, it may be accepted for present purposes that the practice of this Court and other Superior Courts has been to order such a party to provide security unless that party can point to other factors which overcome the weight of the circumstance that that person is resident out of and has no assets within the jurisdiction: Logue v Hansen Technologies Ltd [2003] FCA 81 at [38] [40], [2003] FCA 81 ; 125 FCR 590 at 600 1 per Weinberg J; Ogawa v University of Melbourne [2004] FCA 491 at [23] [24] per Marshall J; Worldwide Australia LLC v Jacobsen Platinum Pty Ltd [2005] NSWSC 846 at [3] per Einstein J.


case_outcome: considered

case_text: Whatever be the reason for the joinder of Mr Wieland at this stage, it is considered that he should be joined as the Second Respondent. Especially in the absence of any prejudice to the Respondent occasioned by the proposed amendment, he is a person against whom relief can properly be claimed and it is clearly in the interests of the administration of justice that all issues be resolved in the one set of proceedings. The power to join an additional party is a power which calls for a " flexibility of approach " and a power which should be exercised to prevent injustice: cf News Ltd v Australian Rugby Football League Ltd [1996] FCA 1256 ; (1996) 64 FCR 410 (citing Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 at 55 6 per Lord Diplock).


case_title: Ogawa v University of Melbourne [2004] FCA 491


case_outcome: cited

case_title: Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52


case_text: These proceedings were first commenced by way of an Application and Statement of Claim filed on 15 March 2004. The proceedings had been listed for hearing before Conti J on 4 September 2006 but that hearing was vacated. The history of the proceedings up to that date have been recounted by his Honour ( Readymix Holdings International Pte Ltd v Wieland Process Equipment Pty Ltd [2006] FCA 1297) and need not be now repeated. 2 Presently before the Court are two Notices of Motion , being: (a) a Notice of Motion filed on behalf of the Applicants on 30 May 2007 seeking leave to amend; and (b) a Notice of Motion filed on behalf of the Respondent on 16 May 2007 seeking security for costs. 3 The amendments proposed by the draft Further Amended Application and Further Amended Statement of Claim relevantly seek to join as a Second Respondent Stuart Mitchell Wieland, being the Managing Director of the present Respondent. Other amendments are also sought.


case_text: Indeed, it may be accepted for present purposes that the practice of this Court and other Superior Courts has been to order such a party to provide security unless that party can point to other factors which overcome the weight of the circumstance that that person is resident out of and has no assets within the jurisdiction: Logue v Hansen Technologies Ltd [2003] FCA 81 at [38] [40], [2003] FCA 81 ; 125 FCR 590 at 600 1 per Weinberg J; Ogawa v University of Melbourne [2004] FCA 491 at [23] [24] per Marshall J; Worldwide Australia LLC v Jacobsen Platinum Pty Ltd [2005] NSWSC 846 at [3] per Einstein J. 19 In all of the circumstances it is considered that an order for security should be made but that that order should be confined to the future costs to be incurred. Confining the order in that way effects an appropriate balance between the fact that, as at present, the Respondent has incurred costs without the benefit of any order for security, but should have the benefit of such an order for the future conduct of the proceedings. Notwithstanding the ability to register a judgment in Singapore, it is nevertheless considered of importance that the Respondent has available to it funds within Australia against which it can enforce any order for costs which may ultimately be made in its favour. Also of importance is the " great weight " which has long been given to the fact that the Applicants are resident outside Australia: Worldwide Australia LLC v Jacobsen Platinum Pty Ltd , supra , at [3] per Einstein J. Whether or not that factor should be given such " great weight " when there is the ability to register a judgment overseas may be left to one side; the fact of overseas residence remains a matter to which weight may be given. 20 Various estimates have been provided quantifying those costs, the estimates varying between $83,449.40 to $120,347.00. Included with those estimates are costs incurred in respect to both the Amended Application and the application for security. Those sums, it has been submitted, should not be included in any order. Excluding those costs, the Applicants quantify the future costs to be $72,549.40. The ability to register a judgment of this Court in Singapore has been taken into account, together with the further evidence of Mr Sreenivasan that the First Applicant has a paid up capital of SGD1,200,000. Nothing is known as to the financial position of the Second Applicant.


case_outcome: referred to

case_text: passage refers to what appears to be the competitor's get-up. It was referred to with approval by a Full Court of this Court in Vieright Pty Ltd v Myer Stores Ltd (1995) 31 IPR 361 at 371 per Beaumont, Branson and Lindgren JJ. However, I do not think that too much should be read into that for three reasons. First , it is apparent that in Reckitt Lord Oliver was only restating a test he had formulated two pages before at 17 IPR 7. That more detailed formulation of the test makes plain that the question is whether the defendant has made a representation to the public, not whether it has a get-up. Secondly , the Full Court in Vieright referred to both passages with approval: 31 IPR 361 at 369, 371. Thirdly , several other Full Courts have referred with approval to Lord Oliver's first formulation of the test which lacks the reference to the respondent's get-up: TGI Friday's Australia Pty Ltd v TGI Friday's Inc (1999) 45 IPR 43 at 50 [25] per Wilcox, Kiefel and Emmett JJ; Conagra Inc v McCain Foods (Aust) Pty Ltd [1992] FCA 159 ; (1992) 33 FCR 302 at 327 per Lockhart J, 355 per Gummow J and 361 per French J. In those circumstances, neither authority nor common sense require the identification of the Malt Balls get-up which, so it seems to me, is a sterile exercise the resolution of which will confer no benefit on anyone. The first passing off claim representations about source and origin


case_outcome: applied

case_text: this area it is impermissible to take into account any matter added to the respondent's mark or any differences in get-up. The marks must be understood in their entirety. Both parties placed reliance upon the reasons given by Lord Radcliffe in de Cordova v Vick Chemical Co (1951) 68 RPC 103 at 105-106. I will not set them out. Lord Radcliffe's reasons were examined by a Full Court of this Court in Crazy Ron's Communications Pty Ltd v Mobileworld Communications Pty Ltd (2004) 61 IPR 212 at 231 [84]. For present purposes Crazy Ron's establishes a number of principles: The question of deceptive similarity is not to be judged by a side by side comparison. Instead what is involved is a comparison, on the one hand, of the impression based on recollection of an applicant's mark that persons of ordinary intelligence would have and the impression such persons would get from the respondent's mark (at 227 [73]). In that regard it is important to consider the "idea of the mark" (at 228 [74]). In assessing deceptive similarity, questions of aural impression may be important (at 228 [75]). In that context I regard the aural similarity between Malt Balls and Maltesers as negligible. The risk of deception must be tangible but it is enough if an ordinary person entertains a reasonable doubt (at 228 [76]). Allowance must be made for imperfect recollections in considering whether a mark so nearly resembles another mark that it is likely to cause confusion or deception (at 228-229 [77]-[78]). That principle extends even to marks which are not just invented words. If a registered trade mark includes words which can be regarded as an essential feature of the mark, another mark that incorporates those words may well infringe the registered trade mark (at 229-230 [79]). It is likewise established that, generally, reputation is irrelevant to the question of infringement. Despite the apparent breath of that proposition, however, it is also accepted that if a particular word or words has come to signify exclusively the goods of the proprietor of a mark (the mark including those words) then the use of that or those words by another would be an infringement. No doubt this involves some apparent departure from the general principle that reputation is irrelevant but it is sanctioned by authority: Crazy Ron's at 232 [88]-[89]. A corollary appears to be that in assessing the notion of a consumer's imperfect recollection of a mark, the fact that a mark is notoriously so ubiquitous and of such long standing that consumers generally must be taken to be familiar with it and its use in relation to particular goods or services is a relevant consideration: Crazy Ron's at 232-233 [90]. The application of these principles is, so it seems to me, relatively straightforward. The Maltesers marks are very famous. Consumers generally must be taken to be familiar with them. That is relevant to assessing a consumer's imperfect recollection of the mark. So viewed, a comparison between the impression held in the consumer's mind and the direct impression of Sweet Rewards' mark is one which, in this case at least, occurs in a context in which the chances of the average consumer having forgotten the Maltesers mark are vanishingly small. So too, an aural examination leads to the same result. "Maltesers" does not sound like "Malt Balls". In particular, the pronunciation is phonetically different: "mal-tesers" is syllabically distinct from "malt balls". I do not think that the colour red would cause confusion but even if there was such a risk such risk is clearly overcome by the effect of the other matters to which I have referred. My conclusions are therefore that: (a) the trade mark used by Sweet Rewards was the Delfi mark so that Mars' claim fails; (b) even if the trade mark use by Sweet Rewards were as Mars alleges, consumers are so familiar with Maltesers that they could not possibly be confused by the Malt Balls packaging more formally, there is no likelihood of imperfect recollection by them of the Maltesers mark leading to confusion; and (c) that conclusion is assisted by an aural consideration. Disposition It follows that none of the applicant's claims have been made good. The application should be dismissed with costs. Rulings on evidence Objection was taken by Sweet Rewards to paragraph 8 of the affidavit of Sarah Jane Armstrong sworn 29 May 2008 and to exhibit SJA-2 to that affidavit on the grounds of hearsay. Ms Armstrong had given evidence of certain discussions she had with various retailers about the distribution of the Delfi products. The purpose of that evidence was to show that the reputation of the Delfi range was limited.


case_text: this area it is impermissible to take into account any matter added to the respondent's mark or any differences in get-up. The marks must be understood in their entirety. Both parties placed reliance upon the reasons given by Lord Radcliffe in de Cordova v Vick Chemical Co (1951) 68 RPC 103 at 105-106. I will not set them out. Lord Radcliffe's reasons were examined by a Full Court of this Court in Crazy Ron's Communications Pty Ltd v Mobileworld Communications Pty Ltd (2004) 61 IPR 212 at 231 [84]. For present purposes Crazy Ron's establishes a number of principles: The question of deceptive similarity is not to be judged by a side by side comparison. Instead what is involved is a comparison, on the one hand, of the impression based on recollection of an applicant's mark that persons of ordinary intelligence would have and the impression such persons would get from the respondent's mark (at 227 [73]). In that regard it is important to consider the "idea of the mark" (at 228 [74]). In assessing deceptive similarity, questions of aural impression may be important (at 228 [75]). In that context I regard the aural similarity between Malt Balls and Maltesers as negligible. The risk of deception must be tangible but it is enough if an ordinary person entertains a reasonable doubt (at 228 [76]). Allowance must be made for imperfect recollections in considering whether a mark so nearly resembles another mark that it is likely to cause confusion or deception (at 228-229 [77]-[78]). That principle extends even to marks which are not just invented words. If a registered trade mark includes words which can be regarded as an essential feature of the mark, another mark that incorporates those words may well infringe the registered trade mark (at 229-230 [79]).


case_title: Reckitt & Colman Products Ltd v Borden Inc (1987) 10 IPR 21

case_text: identification of a trade reputation and the discernment of the features of a product in which that reputation inheres may be proved in a number of ways. In Reckitt & Colman Products Ltd v Bordern Inc (1987) 10 IPR 21 Walton J received detailed evidence about the reputation and get-up of Jif lemon juice. That material consisted of evidence from brand specialists as well as evidence about the reactions of randomly selected shoppers to the brands in question. In this case the evidence about the reputation of Maltesers and the elements of the packaging in which that reputation was said to inhere was more indirect. It came principally from Mr West who gave evidence for Mars. Mr West is the general manager of Mars Snackfood Australia which is the division within Mars responsible for its business of manufacturing, distributing, marketing and selling snack foods in Australia. In this context, snack food means chocolate confectionary. Mr West has an extensive background in the marketing of such items. He gave evidence about the manner in which the Maltesers products have been marketed. However, this evidence was of little assistance in determining which elements of the Maltesers packaging were the ones that, in the public mind, had a reputation. Mr West did give evidence that the manner in which the Maltesers products were marketed was strictly controlled which suggests, at least, that Mars believes a reputation inheres in the packaging. He referred to a document generated within the Mars group which provided very precise guidelines on the use of the Maltesers brand. This document, entitled "Maltesers Guidelines", was prepared in consultation with Mars' advertising agencies, Brandhouse WTS, AMV BBDO, One Graphics and De Schutter. I would infer from its provenance that it was prepared by experts in the business of branding confectionaries. It referred to a concept of the Maltesers "brand flag". This was said to consist of five elements: (a) the "Logotype", consisting of the word Maltesers written stylistically from bottom left to top right and receding; (b) six Maltesers balls, five being whole and one half shot; (c) "the magic" being a small sparkling motif towards the bottom right of the packet; (d) the shadows, being shadows beneath the Maltesers word and one or more of the balls and apparently cast by them; and (e) the background, being the red background. The guidelines identified the "main constituent element" of the brand flag as the logotype with its shadow that is, the word Maltesers apparently suspended in the air and proceeding cursively from the bottom left to the receding top right. The guidelines permitted the angle on which the logotype hung to vary slightly but did not permit any variation from the general structure. Mr West was cross-examined about the significance of these branding matters. He conceded that the "magic" was of no importance. Mr West also gave evidence, which I accept, in these terms: What did you mean by packaging design? --- Yes, so I would say chocolate confectionary, unlike sugar confectionary, most brands are defined by their product form or shape so, you know, if you think of if someone says M&Ms you know the shape of an M&M or if it's Maltesers the shape of the Malteser and so within this, you know, I think Maltesers has built the reputation of having the combination which is the brand name, the red packaging but also the product depiction and you could take the product out and put it in front of people and they all say that's a Malteser and then when they see it in the combination of the red and the product they depict it as Maltesers. (Emphasis added.)


case_text: that, there is some support for the idea that the identification of a respondent's get-up might be a useful endeavour. In Reckitt & Colman Products Ltd v Borden Inc (1990) 17 IPR 1 Lord Oliver restated (at 8) his previous explication of the relevant test in terms which included this statement: (2) If the answer to that question is in the affirmative, does the get-up under which the appellants proposed to market their lemon juice in all or any of the Mark I, Mark II or Mark III versions amount to a representation by the appellants that the juice which they sell is Jif lemon juice?


case_title: TGI Friday's Australia Pty Ltd v TGI Friday's Inc (1999) 45 IPR 43


case_title: Vieright Pty Ltd v Myer Stores Ltd (1995) 31 IPR 36


case_text: Court's power to order costs in these proceedings is created by s 1335(2) of the Corporations Act . That provides: "(2) The costs of any proceeding before a court under this Act are to be borne by such party to the proceeding as the court, in its discretion, directs." Thus, the parties accepted in argument that s 1335(2) displaces the broader power to order costs conferred on this Court under s 43(2) of the Federal Court of Australia Act 1976 (Cth). That result had been reached in decisions under the predecessor of s 1335(2) of the Corporations Law . These had held that the terms of the earlier s 1335(2) were mandatory in proceedings like the present that are "under this Act" and the section had displaced the broader powers under s 43(2) of the Federal Court of Australia Act : Australian Forest Managers Ltd (In Liq) v Bramley (1996) 65 FCR 13 at 20F-G, 22C-F, 23D-E per Lindgren J; see too Re Wridgemont Display Homes Pty Ltd [1992] FCA 604 ; (1992) 39 FCR 193 at 196-197 per Jenkinson J.


case_text: where defendants or respondents in the same interest all participate in the proceedings and fail, as a practical result (but not because of any rule of law or practice) they will be liable jointly and severally to an order that they pay the plaintiffs' costs: cf Probiotec Ltd v University of Melbourne [2008] FCAFC 5 ; (2008) 166 FCR 30 at 44-46 [53] - [61] per myself, Finn and Besanko JJ agreeing. In general, the purpose of an order for costs is to indemnify, at least partially, a successful party: Probiotec 166 FCR at 44 [51] and Cachia v Hanes [1994] HCA 14 ; (1994) 179 CLR 403 at 410-411 per Mason CJ, Brennan, Deane, Dawson and McHugh JJ.


case_text: Charlick Trading Pty Ltd v Australian National Railways Commission (1997) 149 ALR 647 at 649-651 Mansfield J examined the scope of the discretion to make an order for payment of a third party's reasonable costs and expenses in complying with a subpoena under the predecessor of FCR O 27 r 11. The present rule also provides the Court with a similarly wide discretion to order a party that causes a subpoena for production to be issued to pay the subpoenaed person's reasonable costs and expenses of compliance. The subsequent joinder of that person as a party, however, may be relevant to the exercise of that power: Simpson v Monteith [2009] NSWSC 156 at [54] - [58] per Hoeben J. He noted that the obligation of the person subpoenaed to discover the same documents after becoming a party would normally make the costs of production of so much of the documents as were discoverable, the new party's costs in the proceedings. And, like here, in Simpson [2009] NSWSC 156 at [57] , the documents had not been required to be produced before the joinder.


case_text: plaintiff Councils seek their costs of the proceedings against each of the corporate defendants, Lehman Australia, Lehman Asia and Lehman Bros. Lehman Australia accepted that any costs it should be ordered to pay be payable as costs of its winding up, ordered by me on 2 October 2009: City of Swan v Lehman Brothers Australia Ltd (No 2) [2009] FCA 1160. Lehman Australia argued that the order should apportion the liability for costs severally so that each corporate defendant would be ordered to pay one-third of the Councils' costs. Lehman Asia also asserted that since the Councils had not joined it as a defendant initially and it had applied to be joined, it was an intervenor, and that it should not be ordered to pay any costs at all or any significant costs. Lehman Bros argued that under r 2.13 of the Federal Court (Corporations) Rules 2000 , its liability was limited to any additional costs that were incurred by the Councils, until it was joined as a defendant at its own request on 16 July 2009. In addition, Lehman Bros seeks an order for its reasonable expenses in respect of a subpoena served on it by the Councils on 23 June 2009. The Councils argued that the subpoena sought documents that would have been discoverable had Lehman Bros been a party at the time of service. They argued that the expenses in respect of the subpoena should be characterised as an incident of Lehman Bros' later involvement as a defendant. The Councils commenced these proceedings urgently and ex parte on 5 June 2009 when Stone J gave them leave to serve the originating process returnable before me on 12 June 2009. That process was directed to challenging the validity and implementation of the resolution of Lehman Australia's creditors, made on 28 May 2009, that it execute a deed of company arrangement.


case_text: in any action to set aside the deed Lehman Asia, as a party to it, had to be a defendant. It was a proper and necessary party, as its offer to be joined on 12 June 2009 recognised. Lehman Asia was also the principal proponent of the deed during the earlier administration: City of Swan v Lehman Brothers Australia Ltd [2009] FCA 784 at [1] . It filed a defence and cross-claim. It sought relief by having the Court remove or vary the terms of the impugned clauses or order amendments so as to give effect to the intention of those creditors who had voted in favour of the resolution. In addition, it sought an order for rectification of the deed: City of Swan [2009] FCA 784 at [11] - [12] . Lehman Asia had not sought to be added as an intervenor on 12 June 2009. Nor was it content to rely on merely being heard under r 2.13(1) without being made a party. Neither position would have been appropriate. Lehman Asia was a party to the deed. And, Lehman Asia was an active, proper and necessary party to the proceedings that sought that the deed be terminated or declared void. It exercised its rights of participation in the proceedings as a party, including bringing a cross-claim. It had a significant interest in seeking to uphold the validity of the deed of company arrangement, or obtaining relief to similar effect, or to enforce the balance of the deed excluding any clauses found to be invalid. It should be liable for costs as a party.


case_text: argument is without substance. On 5 June, when the proceedings began, they were properly constituted as a vehicle to challenge the creditors' resolution that Lehman Australia execute a deed of company arrangement containing provisions to the effect of those held by the Full Court to be beyond the statutory powers of the creditors to include in such a deed: City of Swan v Lehman Brothers Australia Ltd [2009] FCAFC 130. Importantly, on 12 June 2009, the Councils obtained new causes of action in respect of the deed that had been executed on that day. Lehman Asia was an actual party to that deed as were, conformably with s 444B(2) and (5), Lehman Australia and its administrators.


case_text: where defendants or respondents in the same interest all participate in the proceedings and fail, as a practical result (but not because of any rule of law or practice) they will be liable jointly and severally to an order that they pay the plaintiffs' costs: cf Probiotec Ltd v University of Melbourne [2008] FCAFC 5 ; (2008) 166 FCR 30 at 44-46 [53] - [61] per myself, Finn and Besanko JJ agreeing. In general, the purpose of an order for costs is to indemnify, at least partially, a successful party: Probiotec 166 FCR at 44 [51] and Cachia v Hanes [1994] HCA 14 ; (1994) 179 CLR 403 at 410-411 per Mason CJ, Brennan, Deane, Dawson and McHugh JJ. The consequence of ordering each of the corporate defendants to pay one-third or some other proportion of the Councils' costs severally, would be to put at risk the efficacy of the partial indemnity, were one or more of the defendants either incapable of paying its portion or recalcitrant. Despite their insolvencies, it is not suggested that the corporate defendants will not be able to meet any costs order. I am satisfied that it would not be appropriate or just to reduce their liabilities from being joint and several merely because they were the three unsuccessful active parties. They can seek contribution among themselves after one or more has paid the Councils. In principle, the Councils should be free to seek recovery of the full amount of any costs order against all of the corporate defendants, each of which took an active part in the proceedings. Each of them contributed to the costs being incurred, at least while a party (see below) in a way which, as between them and the plaintiffs was not readily distinguishable. Each of the corporate defendants was essentially in the same interest, adopting and reinforcing arguments the others put, even though there were some individual substantive (but as the matter proceeded, in the result, not substantial) differences between them (e.g. the different results sought in Lehman Asia's and Lehman Bros' cross-claims): see too Probiotec 166 FCR at 49 [73] per myself, at 52 [91] per Besanko J, and at 32 [1] per Finn J. Lehman Bros' position was different to that of Lehman Asia. Lehman Bros was not a necessary party to the proceedings. However, it obtained significant and express benefits from the impugned provisions in the deed of company arrangement. And, as its cross-claim showed, if it lost those benefits because the impugned provisions were found to be invalid, unlike Lehman Asia, Lehman Bros wanted the deed then to terminate and Lehman Australia to be wound up. Lehman Bros argued that its liability for costs before 16 July was governed by r 2.13(2) and that s 1335(2) prevented any wider order for costs being made against it before that date. Rule 2.13(2)(a) provides that the Court may direct that a person granted leave under r 2.13(1) to be heard, without becoming a party in a proceeding, if it considers that the attendance of that person has resulted in additional costs for any party that those costs should be borne by the person. Lehman Bros argued that the Councils had not incurred any additional costs because of its attendances prior to 16 July. I reject that argument. It is inconsistent with the substantive position put by Lehman Bros at the hearing on 10 July. Lehman Bros also argued that because it was not a party before 16 July, r 2.13(2) was the sole source of its liability for costs. I am of opinion that s 1335(2) gives the Court power to award costs against a party, including costs incurred by the successful party before the new party had been joined. The power to order costs in s 1335(2) is not confined, once the Court considers that a party to the proceedings should be ordered to bear them. Of course, the time and circumstances of a party's joinder will be relevant to the exercise of the discretion to order costs, particularly in respect of any period before that joinder: see Probiotec 166 FCR at 49 [72]. Here, Lehman Bros contemplated from its first appearance that it may wish to become a party. By 10 July 2009 that position had become substantially clearer. During the hearing on that day its counsel recognised the likelihood that Lehman Bros would become a party and argued in anticipation that it would put its own substantial case forward in the litigation. Of course, once it became one, Lehman Bros would assume the obligations of a party under the Federal Court (Corporations) Rules and the Federal Court Rules , including discovery. By this time, it was apparent that unless an order for an early trial of separate issues was made (a course resisted by Lehman Bros) these proceedings would be complex, lengthy and involve considerable discovery. The classes of documents sought in the subpoena broadly included documents that would have been discoverable by Lehman Bros. I have not considered whether the terms of the subpoena were appropriate in every respect. However, they reflected (whether or not, if challenged, they would be found too broad or imprecise) classes of documents that would be likely to be relevant for collection or consideration by Lehman Bros' lawyers for the purpose of discovery. Thus, much of what Mr Hoser's affidavit referred to was work that would have been required to be done in any event, even if no subpoena had been issued.


case_title: Re Wridgemont Display Homes Pty Ltd [1992] FCA 604 ; (1992) 39 FCR 193


case_title: Simpson v Monteith [2009] NSWSC 156


case_text: The ordinary rule is that costs are awarded on a party and party basis. From time to time, the Court has made an award of costs on a different basis. The authorities have identified various circumstances in which it may be appropriate to exercise the discretion to award costs on a different basis from a party and party basis. One such category is where there is evidence of particular misconduct by a party that causes loss of time to the Court and to the other parties. However, the authorities also make it clear that the categories of circumstances in which the Court may exercise its discretion to award costs on, for example, an indemnity basis are not closed. I refer to Colgate Palmolive v Cussons (1993) 118 ALR 248 at 254-257; Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (French J, unreported, 3 May 1991), Re Wilcox Ex Parte Venture Industries Pty Ltd (1996) 141 ALR 727 (" Re Wilcox "). The gap between party and party costs and indemnity costs may be increasing. However, while that may be a reason to review the scale rates, it is not in itself a reason to broaden the established criteria for awarding indemnity costs. As I understand it, that is a point made by Cooper and Merkel JJ in Re Wilcox (at 734).


case_title: Fisher v RAFCORP (WA) (1995) 57 FCR 1

case_text: The respondents asked me to make a self-executing order in relation to the first order I made on 22 May 2007. In other words, they asked me to make an order that if the applicant does not comply with the first order then the proceedings do stand dismissed as to the whole of the relief claimed by the applicant. There is no doubt that I have the power to make such an order: O 35A, r 3(1)(c). I decline to do so. In Fisher v RAFCORP (WA) (1995) 57 FCR 1 at 19, the Full Court of this Court described such orders as unusual. I respectfully agree and I think that such orders should only be made in extreme cases. There may be many circumstances which arise subsequent to the making of such an order, which plainly call for a relaxation of a time limit fixed in the order and it would be unwise to place an obstacle in the way of a favourable exercise of the discretion. In my opinion, such an order should only be made when, in effect, all other efforts to ensure compliance have failed. The present is not such a case. 29 The respondents applied for the costs they incurred between 10 May and 22 May 2007, of the notice of motion dated 3 May 2007, of the hearings on 9 May 2007 and 22 May 2007 and of the adjournment of the trial on an indemnity basis. 30 In my opinion, the respondents are entitled to the costs of their notice of motion dated 3 May 2007. The applicant did not comply with the December orders as amended on 9 May 2007. They are also entitled to the costs of the hearings on 9 May and 22 May 2007 respectively because those hearings were primarily concerned with the variation of the December orders and the respondents' notice of motion. The respondents are also entitled to any costs occasioned by the adjournment of the trial. An adjournment of the trial was necessary because of the applicant's failure to comply with the orders of the Court and, in particular, the order as to the delivery of reports by expert witnesses. Finally, the respondents are entitled to any costs occasioned by the late delivery of statements. Clearly, those costs should be restricted to costs which have been wasted.


case_text: That the costs of this application be reserved." I will refer to these orders as "the December orders". 3 On 5 March 2007, the applicant issued a notice of motion wherein it sought the following orders: "1. There be judgment for the Applicant against the First Respondent, on that part of the Applicant's claim that the First Respondent has contravened s 51AD of Part IV of the Trade Practices Act 1974 . 2. There be judgment for the Applicant against the Second Respondent, and that part of the Applicant's claim that the Second Respondent has, pursuant to s 75B of the Trade Practices Act 1974 , been involved in a contravention of s 51AD of Part IVB of the Trade Practices Act 1974 . 3. The assessment of the amount of damages, or other relief, be deferred until further order. 4. An order that the Respondents pay the costs of this application. 5. Such further or other order or relief as may be required." 4 The notice of motion was supported by an affidavit of Mr Nicholas Stewart who is the managing director of the applicant. 5 The applicant's notice of motion came on for mention before me on 13 March 2007. I fixed 28 March 2007 as the date for the hearing of the notice of motion and I made a number of directions relating to the material to be relied upon on the hearing of the notice of motion and the filing of outlines of submissions. On 13 March 2007, the respondents asserted that the applicant was in breach of the December orders. 6 I heard submissions on the applicant's notice of motion on 28 March 2007 and I reserved my decision. Again on that occasion the respondents asserted that the applicant had not complied with the December orders. The applicant asserted that the respondents had not made proper discovery. 7 On 4 April 2007, I made the following orders: 1. The application by the applicant by notice of motion dated 5 March 2007 be dismissed. 2. The applicant pay the respondents' costs of the application by notice of motion dated 5 March 2007. I delivered reasons: Jianshe Southern Pty Ltd (ACN 007 031 905) v Turnbull Cooktown Pty Ltd (ACN 069 894 275) [2007] FCA 489 . 8 Again on that occasion the respondents asserted that the applicant had not complied with the December orders. I indicated to the parties that if either party complained of a failure to comply with orders of the Court, then an appropriate application should be made on notice. 9 On 3 May 2007, the respondents issued a notice of motion seeking the following orders: "1. That these proceedings be stayed or dismissed as to the whole of the relief claimed by the applicant; or in the alternative 2. That these proceedings be stayed or dismissed as to the whole of the relief claimed by the applicant, if the applicant does not serve on the respondents' solicitors a draft index for the proposed Court book within two days of the date of this order and further comply with the orders of the Honourable Justice Kenny dated 15 December 2006; and 3. That the applicant pay the respondents' costs of and incidental to this application assessed on the standard basis unless agreed between the respondents on the one part and the applicant on the other part; and 4. Any other orders that the Court may deem fit in the circumstances." 10 The respondents' notice of motion was supported by an affidavit from Ms Robyn Bartlett, who is a member of the firm of solicitors acting for the respondents. Ms Bartlett deposed to the fact that the applicant had not served on the respondents a draft index for the proposed Court book. The solicitor acting for the applicant swore an affidavit on 8 May 2007 and that affidavit was filed on the following day. The solicitor for the applicant deposed to the fact that the applicant asserted that the respondents had failed to discover any documents relating to the issue of the applicant's claim under the Franchising Code of Conduct and that such discovery was necessary before the applicant could prepare the Court book and Mr Stewart's witness statement.


case_text: Previously, the power to make orders of this nature was contained in O 10, r 7. In Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388, Wilcox and Gummow JJ considered the principles which should govern the discretion to dismiss a proceeding under O 10, r 7 of the Federal Court Rules . In my respectful opinion, their Honours' observations apply equally to the power in O 35A, r 3(1). Their Honours said (at 396-397): "The discretion conferred by O 10, r 7 is unconfined, except for the condition of non-compliance with a direction. As it is impossible to foresee all of the circumstances under which the rule might be sought to be used, it is undesirable to make any exhaustive statement of the circumstances under which the power granted by the rule will appropriately be exercised. We will not attempt to do so. But two situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases -- whatever the applicant's state of mind or resources -- in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. Even though the most recent non-compliance may be minor, the cumulative effect of an applicant's defaults may be such as to satisfy the judge that the applicant is either subjectively unwilling to co-operate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceeding. In the second of the two situations we postulate, a significant continuing default, it does not really matter whether there have been earlier omissions to comply with the Court's directions. Ex hypothesi the default is continuing and is imposing an unacceptable burden on the respondent. But the continuance of the non-compliance is of the essence of this situation. If, when the Court looks at the matter, the direction has already been complied with, the defaulting applicant may be ordered to pay any wasted costs; but it would be difficult to justify the dismissal of the proceeding solely because of that default." 26 I do not think that this case falls within either of the two situations identified by their Honours. Whatever else might be said about the applicant's failure to comply with Court orders and its failure to put forward an affidavit explaining in a clear and simple fashion the reason or reasons for those failures, I do not think that it can be inferred that its non-compliance is such as to indicate an inability or unwillingness to cooperate with the Court and the other party or parties in having the matter ready for trial within an acceptable period. Nor do I think that this is a case in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondents. There has been non-compliance but I would not describe it as continuing, bearing in mind the outlines of evidence that have now been filed and the expert's report which will be filed. There has been delay and there has been some expense to the respondents, but I can make an order for costs in relation to that expense. In the end, I would not describe the applicant's conduct as amounting to "a significant continuing default". 27 In the circumstances, I considered it appropriate to decline to make orders staying or dismissing the proceedings and, instead, I adjourned the commencement of the trial for a relatively short period.


case_title: Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreported, French J, 3 May 1991)


case_title: Wilcox, Re; Ex Parte Venture Industries Pty Ltd (1996) 141 ALR 727


case_text: word 'applicant' used in s 56 of the Act has for many years in various statutory analogues and under the Federal Court Act been accepted as referring to the party against whom security for costs is sought, whether in legal form a plaintiff or initially moving party in the proceedings or a defendant or respondent who brings a cross-action or cross-claim: see eg Buckley v Bennell Design and Constructions Pty Ltd (1974) 1 ACLR 301 at 306 per Street CJ. In my opinion, the authorities establish that where a foreign defendant counterclaims or cross-claims, it will be ordered to provide security for costs if, in substance, what it puts forward is not simply a defence to the claim, but a distinct claim in itself, provided that on an overall assessment by the Court it is just and fair that such an order be made. In Neck v Taylor [1893] 1 QB 560 at 562 Lord Esher MR identified the applicable principles (see also at 563 per Lindley LJ and per Lopes LJ). Those principles were applied by Street CJ in Buckley 1 ACLR at 307; see too Bev Wizz Group Pty Ltd v Transport Solutions Pty Ltd [2008] NSWSC 1399 at [12] - [18] where Brereton J summarised a number of the authorities. Lord Esher MR said ( Neck [1893] 1 QB at 562): "Where the counterclaim is put forward in respect of a matter wholly distinct from the claim, and the person putting it forward is a foreigner resident out of the jurisdiction, the case may be treated as if that person were a plaintiff, and only a plaintiff, and an order for security for costs may be made accordingly in the absence of anything to the contrary. Where, however, the counterclaim is not in respect of a wholly distinct matter, but arises in respect of the same matter or transaction upon which the claim is founded, the Court will not, merely because the party counterclaiming is resident out of the jurisdiction, order security for costs; it will in that case consider whether the counterclaim is not in substance put forward as a defence to the claim, whatever form in point of strict law and pleading it may take, and, if so, what under all the circumstances will be just and fair as between the parties and will act accordingly."


case_title: Neck v Taylor [1893] 1 QB 560

case_text: my opinion, the authorities establish that where a foreign defendant counterclaims or cross-claims, it will be ordered to provide security for costs if, in substance, what it puts forward is not simply a defence to the claim, but a distinct claim in itself, provided that on an overall assessment by the Court it is just and fair that such an order be made. In Neck v Taylor [1893] 1 QB 560 at 562 Lord Esher MR identified the applicable principles (see also at 563 per Lindley LJ and per Lopes LJ). Those principles were applied by Street CJ in Buckley 1 ACLR at 307; see too Bev Wizz Group Pty Ltd v Transport Solutions Pty Ltd [2008] NSWSC 1399 at [12] - [18] where Brereton J summarised a number of the authorities. Lord Esher MR said ( Neck [1893] 1 QB at 562): "Where the counterclaim is put forward in respect of a matter wholly distinct from the claim, and the person putting it forward is a foreigner resident out of the jurisdiction, the case may be treated as if that person were a plaintiff, and only a plaintiff, and an order for security for costs may be made accordingly in the absence of anything to the contrary. Where, however, the counterclaim is not in respect of a wholly distinct matter, but arises in respect of the same matter or transaction upon which the claim is founded, the Court will not, merely because the party counterclaiming is resident out of the jurisdiction, order security for costs; it will in that case consider whether the counterclaim is not in substance put forward as a defence to the claim, whatever form in point of strict law and pleading it may take, and, if so, what under all the circumstances will be just and fair as between the parties and will act accordingly."


case_text: Willey v Synan [1935] HCA 76 ; (1935) 54 CLR 175 at 184, Dixon J, with whom Rich J expressly agreed, identified the principle as follows: "... a party to judicial proceedings, who resides beyond the jurisdiction,should not be required to give security for costs unless, however the parties were arranged upon the record, he is the person invoking or resorting to the jurisdiction for the purposes of establishing rights or obtaining relief. If he does avail himself of the remedies the jurisdiction provides in order to obtain affirmative relief or redress, he may be ordered to give security, although he becomes a defendant in the action." There, Dixon J analysed the substantive positions of the parties. He held that the foreign plaintiff had assumed the position of a defending party principally because he was compelled to do so by the provisions of the legislation under which his goods would otherwise be condemned. He characterised that position as being one in which the foreign plaintiff had assumed the burden of commencing the proceedings in order to defeat the true moving party's claim, being that of the Collector of Customs to be entitled to condemn and forfeit the plaintiff's goods. As a matter of impression, in substance the real issue in the present proceedings involves Elbow River establishing positively that the terms of the letter of credit dealing with the nitrogen blanket, which were vital to its right to be paid in a commercially efficient way, reflected no part of the contract and National Biofuels' reliance on them as terms either was wrong or the terms were inessential. Next, Elbow River is seeking to establish its entitlement to a very substantial claim for damages. While National Biofuels also has a claim for damages and does seek some relief, in substance its position is defensive. It seeks to resist what, at the time the proceedings were brought and subsequently has eventuated, was anticipated to be Elbow River's substantive claim for damages for breach of contract. I am of opinion that the pleadings reveal that in reality the substance of the case and the substantial claim is that brought by Elbow River to recover damages for the breach of the version of the contract on which it relies. Moreover, it seems to me that the evidentiary burden, albeit in a formal sense, borne by each of the parties equally to establish the respective contracts on which they rely, is really created by Elbow River's positive denial that the terms of the letter of credit, requiring production of documentary proof to the bank that there was a nitrogen blanket, form part of any contract between the parties. In my opinion, that will be a heavy burden to discharge, having regard to the commercial arrangement the parties evidently have accepted on the pleadings. The substance of that arrangement arose out of dealings and conduct in negotiations between businessmen for the payment of a very large sum of money under a c.i.f. contract using a letter of credit.


case_text: When I published my reasons in Fadu Pty Ltd v ACN 008 112 196 Pty Ltd [2007] FCA 1965 , I directed that the parties file and serve draft minutes of order to give effect to my findings and reasons and to make submissions on costs. The differences between them that were evidenced in the hearing subsist still. 2 As to the orders to be made, I should indicate that I intend to dismiss the Amended Application (which sought relief in respect of restraints of trade at common law) for the reason that, by virtue of s 4M of the Trade Practices Act 1976 (Cth), the law relating to restraint of trade at common law was, in the circumstances, not capable of operating concurrently with s 87(3) of the TP Act, which was invoked by the first, fourth, seventh and eighth respondents ("the respondents") in their cross-claim of 2007. My so doing does not imply that the applicants did not enjoy any measure of success in the proceedings. On the contrary. But for the provisions of s 4M which in turn attracted the remedial provisions of s 87(3), the applicants would have been entitled to the relief they sought. It was only the respondents invocation of s 87(3) and the respondents in the circumstances had the incentive to do so that resulted in a lesser success for the applicants. 3 Accordingly, I will order that: (i) the application be dismissed; and (ii) on the cross-claim, the terms of clause 2 of the Deed Poll dated 30 September 2005 be varied so as to read as follows: "2. The Restraint Givers jointly and severally covenant that they will not (and that they will procure that their related entities do not): 2.1 Conduct, or be involved, directly or indirectly, in the conduct of, a laundry hire business; 2.2 ... in any part of the area within the boundary line marked out in Appendix 'B' in the reasons for judgment published in this proceedings on 11 December 2007 for a period of three years after the Completion Date (as that term is defined in the Heads of Agreement)."


case_text: It is well accepted that the general discretion conferred by s 43 of the Federal Court of Australia Act 1976 (Cth) to award costs is absolute and unfettered but that it must be exercised judicially. It is equally well accepted that in the exercise of that discretion: (i) ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order; (ii) where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed; and (iii) a successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other parties' costs of them. In this sense "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or law. Ruddock v Vadarlis [2001] FCA 1865 ; (2001) 115 FCR 229 at [11] approving Hughes v Western Australian Cricket Association (Inc) (1986) 69 ALR 660; ATPR 40-748 at 48,136. See generally Dal Pont, Laws of Costs , ch 8 (2003).


case_title: Hughes v Western Australian Cricket Association (Inc) (1986) 69 ALR 660


case_text: is unnecessary for present purposes to resolve whether the written submission accurately expresses the basis upon which any discretion should be exercised or whether the more difficult task is the application of any discretion to the facts. Reservation is also presently expressed as to whether the present case is in any way analogous to the facts before the Full Court in SZKGF . There the question was whether an incorrect postcode upon correspondence, which was in any event received, constituted jurisdictional error. The delay of over seven years in SZIQB , and the other conduct of the claimant in that case, also seem far removed from the present case. Reference may also be made to the observations of Middleton J in SZGBI v Minister for Immigration and Citizenship [2008] FCA 599 at [53] to [54] where His Honour indicated that relief may have been refused for a breach of s 441A of the Migration Act 1958 (Cth).


case_text: written submissions as filed on behalf of the Respondent Minister did not " urge upon the Court a duty to inquire into each case the extent to which any failure may have prejudiced an applicant ". What was urged upon the Court was the appropriateness " to withhold relief in circumstances where there is a clear absence of any practical injustice or even inconvenience to an applicant resulting from any error in question ". Reliance was placed upon SZKGF v Minister for Immigration and Citizenship [2008] FCAFC 84 and SZIQB v Minister for Immigration and Citizenship [2008] FCAFC 20. It is unnecessary for present purposes to resolve whether the written submission accurately expresses the basis upon which any discretion should be exercised or whether the more difficult task is the application of any discretion to the facts. Reservation is also presently expressed as to whether the present case is in any way analogous to the facts before the Full Court in SZKGF . There the question was whether an incorrect postcode upon correspondence, which was in any event received, constituted jurisdictional error. The delay of over seven years in SZIQB , and the other conduct of the claimant in that case, also seem far removed from the present case. Reference may also be made to the observations of Middleton J in SZGBI v Minister for Immigration and Citizenship [2008] FCA 599 at [53] to [54] where His Honour indicated that relief may have been refused for a breach of s 441A of the Migration Act 1958 (Cth).


case_text: for the Respondent Minister has properly referred to the following conclusion of Lander J in SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122 , 102 ALD 541: [97] It should only be in exceptional circumstances that a Court should refuse to issue the constitutional writs once the court has determined that the Tribunal has failed to comply with its imperative statutory obligations to an applicant seeking the review of a decision of the delegate refusing the applicant a protection visa. If it were otherwise, and the Court were required to inquire into the extent to which the failure by the Tribunal to comply with its statutory obligations to accord an applicant a fair hearing prejudiced the applicant, the imperative obligation imposed on the Tribunal might well be blunted. His Honour had there previously referred to the following observations of Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 , 204 CLR 82. [57] It is one thing to refuse relief on the ground of utility because, as Lord Wilberforce put it, "[t]he court does not act in vain" ( Malloch v Aberdeen Corporation [1971] 1 WLR 1578 at 1595; [1971] 2 All ER 1278 at 1294). For example, the application for an administrative determination may be one which, irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse ( Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board [1994] 1 SCR 202 at 228; Wade and Forsyth, Administrative Law , 7 th ed (1994) at 528). Or the prosecutor's complaint may be the refusal by the decision-maker of an opportunity to make submissions on a point of law which must clearly have been answered unfavourably to the prosecutor (See Stead v State Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 145). Again, the decision under review may have no legal effect and no continuing legal consequences may flow from it. In such a situation, the reasoning in Ainsworth v Criminal Justice Commission [1992] HCA 10 ; ((1992) 175 CLR 564 at 580-581), where the remedy refused was certiorari, indicates that prohibition will not lie ( Abebe v The Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at 553-554 [113] ). [58] However, the conditioning of a statutory power so as to require the provision of procedural fairness has, as its basis, a rationale which differs from that which generally underpins the doctrine of excess of power or jurisdiction. The concern is with observance of fair decision-making procedures rather than with the character of the decision which emerges from the observance of those procedures. Unless the limitation ordinarily implied on the statutory power is to be rewritten as denying jurisdictional error for "trivial" breaches of the requirements of procedural fairness, the bearing of the breach upon the ultimate decision should not itself determine whether prohibition under s 75(v) should go. The issue always is whether or not there has been a breach of the obligation to accord procedural fairness and, if so, there will have been jurisdictional error for the purposes of s 75(v). Moore and Marshall JJ agreed with Lander J.


case_title: SZKGF v Minister for Immigration and Citizenship [2008] FCAFC 84


case_title: SZMTJ v Minister for Immigration and Citizenship [2009] FMCA 19

case_text: subsequent application was rejected by a delegate of the Minister on 21 May 2008 and the Refugee Review Tribunal affirmed that decision by a decision signed on 26 August 2008. An application for review was filed with the Federal Magistrates Court of Australia in September 2008. An amended application was filed on 14 November 2008 and identified two grounds, namely: (i) "The investigation conducted by the Second Respondent was affected by bias and preoccupied subjective reasoning "; and (ii) a breach of s 91R of the Migration Act 1958 (Cth). The amended application was dismissed: SZMTJ v Minister for Immigration and Citizenship [2009] FMCA 18. In dismissing the application, the Federal Magistrate relevantly concluded that: (a) the now Appellant failed to provide any evidence of any bias on the part of the Tribunal and the first ground set forth in the amended application was to be dismissed; and (b) a breach of s 91R(3) had in fact occurred; but that (c) relief should be refused in the exercise of the Court's discretion. The Notice of Appeal as filed in this Court on 12 February 2009 raises essentially the same grounds as were advanced before the Federal Magistrate. Although the Notice of Appeal does not expressly assert error on the part of the Federal Magistrate in the exercise of discretion, the written Outline of Submissions as filed by the Respondent Minister correctly addresses the question as to whether the discretionary withholding of relief has miscarried.


case_text: expression, " the interests of justice ", as employed in Rule 4(1) is a " wide term ": Taylor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 319 at [10] per French J. As His Honour there made clear, the decision to issue a referral is no indication by the Court of the strengths or weaknesses of a particular case. In the present proceeding it is considered that it is in " the interests of the administration of justice " that a referral be made. A person seeking refugee status in Australia who has established a breach of an important provision of the Migration Act 1958 is not to be lightly denied relief. The significance to be attached to a breach of s 91R(3) and the importance of that provision to the decision-making process need to be addressed. The proper basis upon which any such discretion should be exercised, and whether it is appropriate when exercising that discretion for the Federal Magistrate to himself embark upon an assessment of the weight of the evidence before the Refugee Review Tribunal, are both matters in respect to which the Court would be greatly assisted by hearing from a legal practitioner on the Pro Bono Panel. Although it may well be that the ground of appeal alleging bias on the part of the Tribunal is not a ground that is ultimately relied upon, it is not considered appropriate at this stage to confine the assistance that may be provided pursuant to O 80 r 5. The legal practitioner to whom this matter is referred may abandon some grounds or seek to raise grounds not presently identified. Such matters will be matters for the professional judgment of the legal practitioner concerned.


case_title: Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd ( 2003) [2003] HCA 18 ; 214 CLR 51

case_text: From the opening of the case the statement of claim required clarification and particularisation of the damages sought in respect of each of the causes of action pleaded. In the closing submissions those damages were particularised under each head as follows: A. Unconscionable conduct K7,717,578. This amount was said to represent the difference between revenue that Fubilan earned under the OTML Contract and revenue that would have been earned had the respondents "withdrawn the P&O tender". The calculation was said to be based on the evidence of Mr Campbell. B. Misleading or deceptive conduct (a) K1,072,981 representing management fees paid from February 2004 to December 2004 plus K587,782 representing management fees paid from January 2005 to August 2005, a total of K1,660.763; (b) A$1,824,000 from September 2005 to August 2009. These are management fees payable under the new management agreement that would not have been paid or be payable had the respondents' representations as to training been true. (c) K7,903,368 being K1,975,842 per annum from February 2004 to February 2008 for the loss of opportunity to cater to other sites in PNG. C. Breach of fiduciary duty. (a ) K7,717,578 representing the difference between the original tender rate and the contract rate.; (b) K10,915,503.48 being the value of a 15% rebate on total purchases by Compass Group (Australia) and Eurest for the period February 2000 to August 2005 constituted by K4,684,338.98 for purchases from Australia and K6,231,164.50 for purchases within PNG. The same sum is claimed in relation to the causes of action for negligence and breach of contract. D. Negligence (a) K7,717,578 being the difference between the original tender rates and the contract rates; (b) K10,915,503.48 being rebates retained by the respondents; (c) K3,987,091.07 being: (i) K816,735.79 for overpayment on stock in warehouse at the commencement of the contract; (ii) K2,844,456.00 for overpayment by Eurest on its invoices 1311 and 1312; (iii) K321,707.65 for the duty component to be deducted from the stock figure K1,798,329.30; (iv) K4,191.02 for an additional overpayment on invoice 1312. In the alternative to (i) and (iv) the applicants seek an account of profits on the basis that they do not have the original source documents used to enter MYOB data for the whole of the period from February 2000 to August 2005. This is said to be necessary if forensic analysis of payments allowed are to be conducted. That is to say the original purchase orders, invoices and payment documents should be obtained. (d) K65,808.90 fees and interest paid by MRSM to ANZ Bank on borrowing to fund purchase of the stock in the warehouse; and (e) K7,903,368 being K1,975,842 per annum from February 2004 to February 2008 for the loss of an opportunity to cater in PNG. This claim is in the alternative to the misleading or deceptive conduct claim. E. Breach of contract by retention of rebates. K10,915,503.48 being rebates retained. This cause of action is raised as an alternative to the claim for breach of fiduciary duty and for negligence. F. Breach of contract for expenses incorrectly charged . (a) K5,907,892.62 for expatriate salary expenses of Eurest from February 2000 to August 2005 that Eurest paid out of Fubilan's bank account; plus (b) the taking of an account for the expenses of Eurest's expatriate employees in relation to travel and accommodation. G. Eurest competing for catering business in the contract area K1,823,380 being K455,845 per annum for four years and, alternatively, the taking of an account. This claim is said to arise from the no compete clause 2.4(a)(ii) of the Management Agreement. H. Claim against Compass Group (Australia) The claim is made pursuant to the guarantee and indemnity said to be provided by Compass Group under cls 15.1(a)(i) and (ii) of the Management Agreement. The notice of demand relied upon in respect of the guarantee is exhibit 228. The claim is against Compass Group (Australia) for Eurest's breaches of the Management Agreement. The indemnity claim is said to be to the same effect, but not requiring a notice of demand. 507 Compass Group Plc is the company incorporated according to the laws of the United Kingdom which is the ultimate holding company of Compass Group (Australia) Pty Ltd. So much was admitted on the pleadings. In [5] of the statement of claim it was asserted that Compass Group (Australia) Pty Ltd was the agent of Compass Group Plc in relation to the dealings of each of the respondents with the applicants. 508 The Compass Group acquired Eurest in November 1999. There is however no evidence to suggest that Compass Group (Australia) Pty Ltd was acting as agent of the Compass Group Plc in relation to dealings with the applicants. The ill-conceived nature of the pleading so far as it relates to Compass Group Plc was illustrated by [19] of the statement of claim which asserted that all respondents "were, at all material times, aware of or ought to have been aware of, the International Management Requirement". This was a reference to OTML's requirement that the applicants appoint an internationally reputable firm to be their catering managers to manage and implement the OTML Contract before OTML would consider any proposal in relation to the contract. This requirement, as pleaded, was raised in 1998, the year before the Compass Group acquired Eurest. In [22] it is stated that: In or about mid 1999 the first, second and third respondents were aware of the pending incorporation of the first applicant ... Again, so far as Compass Group Plc is concerned this seems to make little sense. So too did the allegation that it made various representations to MRSM in November 1998 as pleaded in [49] and following. 513 The concept of unconscionable conduct as used in s 51AA was discussed by the High Court in Australian Competition and Consumer Commissioner v CG Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 214 CLR 51. The case was argued on the basis that it involved, as does this case, an allegation of unconscionable conduct comprising the knowing exploitation by one party of the special disadvantage of another. The idea of special disadvantage was propounded in Berbatis Holdings [2003] HCA 18 ; 214 CLR 51 as "... a disabling circumstance seriously affecting the ability of the innocent party to make a judgment in [that party's] own best interests". Gleeson CJ accepted that formulation as "... consistent with what the Act calls the unwritten law concerning unconscionable conduct, bearing in mind that the Act also allows for the development of the law from time to time" (at [5]). The Chief Justice went on to say, referring to the judgment of the Full Court of the Federal Court in Australian Competition and Consumer Commission v Samton Holdings Pty Ltd [2002] FCA 62 ; (2002) 117 FCR 301 that (at [11]): A person is not in a position of relevant disadvantage, constitutional, situational, or otherwise, simply because of inequality of bargaining power. Many, perhaps even most, contracts are made between parties of unequal bargaining power, and good conscience does not require parties to contractual negotiations to forfeit their advantages, or neglect their own interests.


case_text: The concept of unconscionable conduct as used in s 51AA was discussed by the High Court in Australian Competition and Consumer Commissioner v CG Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 214 CLR 51. The case was argued on the basis that it involved, as does this case, an allegation of unconscionable conduct comprising the knowing exploitation by one party of the special disadvantage of another. The idea of special disadvantage was propounded in Berbatis Holdings [2003] HCA 18 ; 214 CLR 51 as "... a disabling circumstance seriously affecting the ability of the innocent party to make a judgment in [that party's] own best interests". Gleeson CJ accepted that formulation as "... consistent with what the Act calls the unwritten law concerning unconscionable conduct, bearing in mind that the Act also allows for the development of the law from time to time" (at [5]). The Chief Justice went on to say, referring to the judgment of the Full Court of the Federal Court in Australian Competition and Consumer Commission v Samton Holdings Pty Ltd [2002] FCA 62 ; (2002) 117 FCR 301 that (at [11]): A person is not in a position of relevant disadvantage, constitutional, situational, or otherwise, simply because of inequality of bargaining power. Many, perhaps even most, contracts are made between parties of unequal bargaining power, and good conscience does not require parties to contractual negotiations to forfeit their advantages, or neglect their own interests.


case_text: In their joint judgment Gummow and Hayne JJ quoted a passage from the judgment of Mason J in Commercial Bank of Australia v Amadio [1983] HCA 14 ; (1983) 151 CLR 447 at 462 in which his Honour referred to the underlying general principle applicable where one party takes unfair or unconscientious advantage of an opportunity created by the special disadvantage of another. Mason J said: I qualify the word "disadvantage" by the adjective "special" in order to disavow any suggestion that the principle applies whenever there is some difference in the bargaining power of the parties and in order to emphasise that the disabling condition or circumstance is one which seriously affects the ability of the innocent party to make a judgment as to his own best interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party. Gummow and Hayne JJ pointed out that Mason J had gone on to emphasise the need for the plaintiff seeking relief to establish that the defendant took unconscientious advantage of the plaintiff's disabling position or circumstance. Their Honours said (at [55]): It will be apparent that the special disadvantage of which Mason J spoke in this passage was one seriously affecting the ability of the innocent party to make a judgment as to that party's own best interests. 515 Section 51AC has a wider field of operation than s 51AA. The unconscionable conduct which it prohibits is not limited in its range to "unconscionable conduct within the meaning of the unwritten law" as is that prohibited by s 51AA. In this case, however, the difference in the fields of operation of the two provisions is immaterial. The applicants rest their causes of action in unconscionable conduct upon the proposition that they were at a special disadvantage and that the respondents took unfair advantage of that special disadvantage. 516 The elements of the statutory cause of action for unconscionable conduct asserted by the applicants appeared from [16] and following of the statement of claim. Fubilan and MRSM pleaded OTML's requirement that they appoint an internationally reputable firm as catering manager before OTML would consider any proposal from Fubilan and MRSM in relation to its catering contract. It was designated in the statement of claim as the "International Management Requirement". It was said at [17]: As a result of the International Management Requirement the applicants were unable, or had a diminished ability, to protect and conserve their own interests. 517 Fubilan and MRSM alleged that, as a result of the International Management Requirement imposed by OTML, they were at a special disadvantage as against the respondents. The respondents were or ought to have been aware of that special disadvantage. Through their agent Mr Hayes they agreed to prepare a proposal for the OTML Contract on behalf of the applicants and to act as their catering contract manager if the proposal were successful. Reference was then made to elements of the Tender Proposal. 518 The applicants pleaded the lodgment of the Poons' tender which did not include a joint venture or similar arrangement with any individual or group from the Preferred Area as defined in the OTML tender document. The effect of the Poons' tender proposal, if successful, was that Poons would not have been required to share any profits or benefits from the OTML Contract.


case_text: The loss or damage recoverable under s 82 is loss or damage suffered "by conduct of another person that was done in contravention ... of Part V". So where misleading or deceptive conduct is alleged it must be shown that the applicant suffered loss or damage as a result of that conduct. Mason CJ, Dawson, Gaudron and McHugh JJ in Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1995) 175 CLR 514 said (at 525): The statutory cause of action arises when the plaintiff suffers loss or damage "by" contravening conduct of another person. "By" is a curious word to use. One might have expected "by means of", "by reason of", "in consequence of" or "as a result of". But the word clearly expresses the notion of causation without defining or elucidating it. In this situation, s 82(1) should be understood as taking up the common law practical or common-sense concept of causation recently discussed by this Court in March v Stramare (E & M H) Pty Ltd [1991] HCA 12 ; (1991) 171 CLR 506, except in so far as that concept is modified or supplemented expressly or impliedly by the provisions of the Act. Had Parliament intended to say something else, it would have been natural and easy to have said so.


case_text: The test of causation therefore is a practical or common sense one. It does not require that the contravening conduct be the only cause of the applicant's loss. Nor is it necessary, where the misleading or deceptive conduct involves a misrepresentation, that the applicant who suffered loss or damage relied upon that misrepresentation. It may be that misleading or deceptive conduct will set in train a chain of events where one person is led into error on the basis of that conduct and induces some other person to do something that causes them to suffer loss or damage. As Lockhart J said in Janssen-Cilag Pty Ltd v Pfizer Pty Ltd (1992) 37 FCR 526 (at 529): What emerges from an analysis of the cases (and there are many of them) is that they do not impose some general requirement that damage can be recovered only where the applicant himself relies upon the conduct of the respondent constituting the contravention of the relevant provision. See also: Marks v GIO Australia Holdings [1998] HCA 69 ; (1998) 196 CLR 494 at 528 (Gummow J) where the above passage was quoted.


case_title: Marks v GIO Australia Holdings [1998] HCA 69 ; (1998) 196 CLR 494


case_title: Ting v Blanche (1993) 118 ALR 543

case_text: The way in which the section was pleaded was close to unintelligible. Paragraph 68 seemed to suggest that it was invoked as an element of the prohibition imposed by s 52. But s 51A "... does not of itself create a cause of action, nor ... define a norm of conduct": Ting v Blanche (1993) 118 ALR 543 at 552 (Hill J). It does not create a cause of action independent of that created by s 52 when read with s 82. There are authorities which say that it casts a burden of proof on the respondent: see Ting 118 ALR 543; Phoenix Court Pty Ltd v Melbourne Central Pty Ltd (1997) ATPR (Digest) 46-179 at 54,432 (Goldberg J). It certainly casts the "evidential burden" on the respondent in the sense of an obligation to adduce evidence on the issue of whether there were reasonable grounds for making the representation. It does not impose on the representor the legal or persuasive burden to prove that it had reasonable grounds for making the representations alleged. As Emmett J said of s 51A in Australian Competition and Consumer Commission v Universal Sports Challenge [2002] FCA 1276 , the section does not reverse the onus of proof when it applies. It merely requires the alleged representor to "adduce evidence to the contrary". There may be a question whether a representor can discharge the evidential burden by pointing to evidence which forms part of the applicant's case. In my opinion a respondent may rely upon evidence called by an applicant which answers the description "evidence to the contrary".


case_title: Phoenix Court Pty Ltd v Melbourne Central Pty Ltd (1997) ATPR (Digest) 46-179


case_title: Australian Competition and Consumer Commission v Universal Sports Challenge [2002] FCA 1276


case_text: To make a promise which is not performed or a prediction which is not fulfilled is not of itself misleading or deceptive: Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 88; Bill Acceptance Corporation Ltd v GWA Limited (1983) 50 ALR 242. The making of a promise or prediction may contain implied representations of present fact such as the promisor's intention or capacity to perform the promise. Such representations if false may be misleading or deceptive within the meaning of s 52. A prediction which is apparently based on the expertise or experience of the representor may carry with it an implied representation as to the existence of that necessary expertise or experience and perhaps also an implied representation that relevant inquiries have been undertaken to support the opinion being offered.


case_title: Bill Acceptance Corporation Ltd v GWA Limited (1983) 50 ALR 242


case_text: In the applicants' closing written submissions some generally uncontentious propositions about fiduciary duties were advanced. It was said that a fiduciary duty will arise where there has been an undertaking to act in the interests of another party together with the power to affect that interest in a practical sense and as a consequence of that power to affect the interests of the person to whom the duty is owed. Where the person is vulnerable and the power is abused breach of duty is established. Reliance was placed upon Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64 ; (1984) 156 CLR 41 at 96-97 (Mason J). The critical feature of a fiduciary relationship was said to be the reposing of trust or confidence in the fiduciary who undertook to act for, and on behalf of, and in the interests of, vulnerable persons in the exercise of a power or discretion which would affect the interests: Breen v Williams [1995] HCA 63 ; (1996) 186 CLR 71 at 82. The obligation of the party owing the fiduciary duty to act reasonably and in good faith was referred to. 580 In Hospital Products Ltd [1984] HCA 64 ; 156 CLR 41, the High Court was concerned with a distribution agreement for hospital products between an American company and an Australian distributor. The Australian distributor acquired a large quantity of the company's demonstration products, sterilised them and sold them in competition with, or in substitution for, the company's products. He later manufactured the same products locally. While he was held in certain respects to be in breach of the distribution agreement, the High Court held by majority (Gibbs CJ, Wilson and Dawson JJ, contra Mason and Deane JJ) that there was no fiduciary relationship between the parties. 585 In Breen v Williams [1995] HCA 63 ; 186 CLR 71, the High Court decided that a doctor owes a patient no general duty to provide access to the patient's medical records. The decision did involve a consideration of whether fiduciary obligations arose out of the doctor/patient relationship. Gummow J accepted that the mere presence of a contract does not exclude the coexistence of the concurrent fiduciary duties and that it may in particular circumstances provide the occasion for their existence. His Honour relied upon what was said by Mason J in Hospital Products Ltd [1984] HCA 64 ; 156 CLR 41. Gaudron and McHugh JJ cited Mason J and also, with approval, the statement of Sopinka JA in Norberg v Wynrib (1992) 92 DLR (4 th ) 449 at 481 (at 118): Fiduciary duties should not be superimposed on ... common law duties simply to improve the nature or extent of the remedy. 586 In the Fourth Edition of Equity, Doctrines and Remedies (Meagher, Heydon and Leeming), the judgment of Mason J in Hospital Products Ltd [1984] HCA 64 ; 156 CLR 41 is cited with the added observation by the learned authors: However where there is a contract and no established category of fiduciary relationship (for example partnership or agency) applies, it must be remembered that trust and reliance may be tempered by caution and self-interest and vulnerability to abuse remedied in the particular mutual accommodation of competing interests achieved in the contract itself, so that these considerations are relevant to the decision whether the contract has wholly excluded any fiduciary relationship. Fiduciary duties are less likely to be identified in commercial transactions between parties at arms' length effective in written form: Artifakts Design Group Ltd v NP Rigg Ltd [1993] 1 NZLR 196 at 231; Auag Resources Ltd v Waihi Mines Ltd [1994] 3 NZLR 571. See generally Re Gold Corp Exchange Ltd (In Receivership) [1994] UKPC 3 ; [1995] 1 AC 74 at 98 ... And further at 5-105: ... there are not many cases outside the "accepted" categories in which courts have found fiduciary relationships to exist. And (at 5-020): "Commercial" relationships are, of course, capable of being fiduciary. A trust or an agency, for instance, is none the less fiduciary because it happens to arise in the commercial context. The more difficult question is, to what extent will courts, in a commercial context, find fiduciary relationships to exist outside the "accepted" categories. Traditionally there has been considerable reluctance to do so. 587 Courts have traditionally been reluctant to superimpose fiduciary duties upon contractual obligations outside the accepted categories of fiduciary relationships. That observation is supported not only in Meagher, Gummow and Leeming, but also in the 31 st Edition of Snell's Equity (2005, Thomson) which states (at 149): The reason fiduciary duties do not commonly arise in commercial settings is that it is normally inappropriate to expect a commercial party to subordinate its own interests to those of another commercial party. But if that expectation is not inappropriate in the circumstances of the relationship between the parties, and this will be presumed in a settled category of fiduciary relationships, then fiduciary duties will arise. See also Lehane JRF, "Fiduciaries in a Commercial Context" in Finn (ed) Essays in Equity (Law Book Co, 1985) at 104. 588 In Paul Dainty Corp Pty Ltd v National Tennis Centre Trust (1990) 22 FCR 495 the Full Court said (at 515): The authorities make it clear that equity will not impose fiduciary obligations on parties who have entered into ordinary and arm's length commercial relationships, which fully prescribe the respective powers and duties of the parties. This is particularly so when the parties involved are substantial corporations, having equal bargaining power. And in Elders Trustee and Executor Co Ltd v EG Reed Pty Ltd (1987) 78 ALR 193, Gummow J referred to the circumstances in which parties are acting in commercial transaction, at arms length and with the assistance of independent professional advice and observed: Whilst these considerations are not of themselves decisive indicia of the absence of fiduciary obligations of disclosure ... they are of significance: Keith Henry & Co Pty Ltd v Stuart Walker & Co Pty Ltd [1958] HCA 33 ; (1985) 100 CLR 342 at 350-1; Hospital Products Ltd v United States Surgical Corp [1984] HCA 64 ; (1984) 156 CLR 41 at 70, 119 and 146.


case_text: In the applicants' closing written submissions some generally uncontentious propositions about fiduciary duties were advanced. It was said that a fiduciary duty will arise where there has been an undertaking to act in the interests of another party together with the power to affect that interest in a practical sense and as a consequence of that power to affect the interests of the person to whom the duty is owed. Where the person is vulnerable and the power is abused breach of duty is established. Reliance was placed upon Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64 ; (1984) 156 CLR 41 at 96-97 (Mason J). The critical feature of a fiduciary relationship was said to be the reposing of trust or confidence in the fiduciary who undertook to act for, and on behalf of, and in the interests of, vulnerable persons in the exercise of a power or discretion which would affect the interests: Breen v Williams [1995] HCA 63 ; (1996) 186 CLR 71 at 82. The obligation of the party owing the fiduciary duty to act reasonably and in good faith was referred to. 585 In Breen v Williams [1995] HCA 63 ; 186 CLR 71, the High Court decided that a doctor owes a patient no general duty to provide access to the patient's medical records. The decision did involve a consideration of whether fiduciary obligations arose out of the doctor/patient relationship. Gummow J accepted that the mere presence of a contract does not exclude the coexistence of the concurrent fiduciary duties and that it may in particular circumstances provide the occasion for their existence. His Honour relied upon what was said by Mason J in Hospital Products Ltd [1984] HCA 64 ; 156 CLR 41. Gaudron and McHugh JJ cited Mason J and also, with approval, the statement of Sopinka JA in Norberg v Wynrib (1992) 92 DLR (4 th ) 449 at 481 (at 118): Fiduciary duties should not be superimposed on ... common law duties simply to improve the nature or extent of the remedy.


case_title: Phipps v Boardman [1967] 1 AC 46

case_text: Mason J, while in dissent on the existence of a fiduciary relationship, essayed a helpful and frequently quoted discussion of the circumstances in which fiduciary relationships may arise. He cited Phipps v Boardman [1966] UKHL 2 ; (1967) 2 AC 46 for the proposition that relationships of trust and confidence or confidential relations such as those between trustee and beneficiary, agent and principal, solicitor and client, employer and employee, director and company and between members of a partnership are accepted fiduciary relationships. A mere subcontractor is not a fiduciary. Although the subcontractor's work could be described as work carried out in the interests of the head contract, the subcontractor "cannot in any meaningful sense be said to exercise a power or discretion which places the head contractor in a position of vulnerability". 584 In relation to the coexistence of contractual and fiduciary relationships, Mason J said (at 97): ... it is the contractual foundation which is all important because it is the contract that regulates the basic rights and liabilities of the parties. The fiduciary relationship, if it is to exist at all, must accommodate itself to the terms of the contract that it is consistent with, and conforms to, them. The fiduciary relationship cannot be superimposed upon the contract in such a way as to alter the operation which the contract was intended to have according to its true construction.


case_text: In Breen v Williams [1995] HCA 63 ; 186 CLR 71, the High Court decided that a doctor owes a patient no general duty to provide access to the patient's medical records. The decision did involve a consideration of whether fiduciary obligations arose out of the doctor/patient relationship. Gummow J accepted that the mere presence of a contract does not exclude the coexistence of the concurrent fiduciary duties and that it may in particular circumstances provide the occasion for their existence. His Honour relied upon what was said by Mason J in Hospital Products Ltd [1984] HCA 64 ; 156 CLR 41. Gaudron and McHugh JJ cited Mason J and also, with approval, the statement of Sopinka JA in Norberg v Wynrib (1992) 92 DLR (4 th ) 449 at 481 (at 118): Fiduciary duties should not be superimposed on ... common law duties simply to improve the nature or extent of the remedy.


case_text: In Paul Dainty Corp Pty Ltd v National Tennis Centre Trust (1990) 22 FCR 495 the Full Court said (at 515): The authorities make it clear that equity will not impose fiduciary obligations on parties who have entered into ordinary and arm's length commercial relationships, which fully prescribe the respective powers and duties of the parties. This is particularly so when the parties involved are substantial corporations, having equal bargaining power. And in Elders Trustee and Executor Co Ltd v EG Reed Pty Ltd (1987) 78 ALR 193, Gummow J referred to the circumstances in which parties are acting in commercial transaction, at arms length and with the assistance of independent professional advice and observed: Whilst these considerations are not of themselves decisive indicia of the absence of fiduciary obligations of disclosure ... they are of significance: Keith Henry & Co Pty Ltd v Stuart Walker & Co Pty Ltd [1958] HCA 33 ; (1985) 100 CLR 342 at 350-1; Hospital Products Ltd v United States Surgical Corp [1984] HCA 64 ; (1984) 156 CLR 41 at 70, 119 and 146.


case_title: Elders Trustee and Executor Co Ltd v EG Reed Pty Ltd (1987) 78 ALR 193


case_text: The letter was countersigned by Mr Yalapan and witnessed by Mr Baitia. Counsel for the respondents pointed out that the reason for the exclusion of direct project related expenses from the management fee was that they were on-billed to OTML. The management fee was intended to cover costs not recoverable from OTML. The letter of 7 July 1999 forms part of the background to the formation of the Management Agreement against which that agreement may be better understood. The construction of the agreement is to be determined by what a reasonable person in the position of the parties would have understood it to mean. As the High Court said in Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 (at 462): That requires consideration not only of the text of the document, but also the surrounding circumstances known to [the parties], and the purpose and object of the transaction. Their Honours quoted Lord Wilberforce in Reardon Smith Line Ltd v Hansen - Tangen [1976] 1 WLR 989 at 995-996, also quoted by Mason J in Codelfa Constructions Pty Ltd v State Rail Authority of NSW [1982] HCA 24 ; (1982) 149 CLR 337 at 350: In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating.


case_title: Reardon Smith Line Ltd v Hansen-Tangen [1976] 1 WLR 989


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