case_text: This is not a case which requires any significant elaboration of the basic principles of law governing fiduciary relationships: see generally Meagher, Gummow & Lehane, Equity: Doctrines & Remedies , Ch 5 (4 th ed 2002); and, on proposed joint ventures having fiduciary characteristics, see Gibson Motorsport Merchandise Pty Ltd v Forbes [2006] FCAFC 44 ; (2006) 149 FCR 569 at 571-576. 261 It is sufficient to note for present purposes that (i) the distinguishing characteristic of a fiduciary relationship is that "its essence, or purpose, is to serve exclusively the interests of a person or group of persons" (which, as in the case of a partnership or fiduciary joint venture, can include the fiduciary): see generally Meagher, Gummow & Lehane, at 5-005 ff; (ii) a relationship may be fiduciary in part and non-fiduciary in part: Hospital Products Ltd v United States Surgical Corporation , at 97-98 ff; (iii) insofar as the fiduciary relationship is claimed to be founded on mutual trust and confidence, the circumstances must nonetheless be such that the parties to the relationship can reasonably expect loyalty from the other, i.e. the subordination of self interest to joint interest: Gibson Motorsport Merchandise Pty Ltd at [11]-[13]; (iv) a person who provides information, suggestion or advice to another upon which that other may reasonably be expected to rely is not for that reason alone necessarily in a fiduciary relationship with that other, though that person will be a fiduciary if the factual matrix is such that that other is in the circumstances reasonably entitled to expect that the information provider, etc is acting in the matter in that other's interest: cf Pilmer v Duke Group Ltd (in liq) [2001] HCA 31 ; (2001) 207 CLR 165; Commonwealth Bank of Australia v Smith (1991) 42 FCR 390; (v) the loyalty obligation imposed on a fiduciary is that he or she cannot (a) in any matter within the scope of the fiduciary relationship (see Bertchnell v Equity Trustees Executor & Agency Co Ltd [1929] HCA 24 ; (1929) 42 CLR 384 at 408) have a personal interest or an inconsistent engagement with a third party; or (b) use his or her position to own, or to a third party, possible advantage, unless this is freely and informedly consented to by the person(s) to whom loyalty is owed, or is authorised by law: Chan v Zacharia [1984] HCA 36 ; (1984) 154 CLR 178 at 199; Breen v Williams [1995] HCA 63 ; (1996) 186 CLR 71 at 113; (vii) outside of commercial agency, partnership and trust relationships, care needs to be taken in concluding that commercial parties are in a fiduciary relationship for some or all purposes - not because a commercial relationship cannot be fiduciary, but because such a relationship, commonly, possesses characteristics (e.g. known adversarial interests, the reasonable expectation of self-reliance, etc.) which negative a fiduciary finding: Gibson Motorsport Merchandise Pty Ltd , at [2]-[18]; News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 539-541. 263 It was also obvious to all concerned that to the extent that that exploitation was successful, Tiltform Licensing (and those with interests in it) stood in turn to benefit in virtue of the provisions of the licence agreement. In this sense the two companies shared, i.e. had common but several interests, in the prospering of their business relationship. But there was nothing fiduciary at all about that relationship. The licence agreement required considerable cooperation between the parties as well as ongoing trust and confidence in each other. But it was not for that reason fiduciary: cf Gibson Motorsport Merchandise Pty Ltd at [12]-[16]. Such is the commonplace in relational contracts, i.e. contracts which create an ongoing business relationship. Nonetheless there was nothing in the terms of the contract remotely suggesting that the parties were binding themselves in any way to promote "mutual interests". The agreement was designed to serve the several interests of each, and in this it gave Tiltform Licensing considerable powers over Tiltform Australia to protect its own interests. 264 The licence agreements of themselves created no fiduciary relationship as between Tiltform Licensing and Tiltform Australia. This, though, is not the relationship which, by virtue of the agreement "alone", is said to have been fiduciary. It is at this point that the difficulty with the applicants' submission becomes transparent. 265 It was clearly the case that, in their dealings with the WA investors, Bell and Sladojevic acted in the main on behalf of Tiltform Licensing in relation to a prospective investment in its licensee, Tiltform Australia. It was or should have been obvious to the investors that such was the case and that Tiltform Licensing had manifest interests in the making of the proposed investment. It was not necessary for the investors to have read the licence agreements for them to have reason to know that such was the case, although Parker's evidence is that he read it after returning to Perth from the 2 June meeting and he was aware that Tiltform Licensing's approval was necessary for any change in shareholding. The circumstances were redolent of Tiltform Licensing's own interest both in its relationship with Tiltform Australia and in any investment made in Tiltform Australia. To the extent that Bell and Sladojevic acted and were seen to act for Tiltform Licensing no possible foundation existed for characterising Bell and/or Sladojevic's relationship with the WA investors as fiduciary. As would have been apparent to anyone in the position of the WA investors, Bell and Sladojevic were seeking to protect and advance Tiltform Licensing's interests and, as is commonly the case in commercial dealings, they sought positively to encourage the investment in Tiltform Australia, both by enhancing its attractiveness (by, for example, introducing Dawkins to Benson) and by encouraging (through representations) its being made. The latter action was taken for the immediate benefit of Tiltform Australia, though self-interest was writ large in it.


case_outcome: cited

case_text: It is sufficient to note for present purposes that (i) the distinguishing characteristic of a fiduciary relationship is that "its essence, or purpose, is to serve exclusively the interests of a person or group of persons" (which, as in the case of a partnership or fiduciary joint venture, can include the fiduciary): see generally Meagher, Gummow & Lehane, at 5-005 ff; (ii) a relationship may be fiduciary in part and non-fiduciary in part: Hospital Products Ltd v United States Surgical Corporation , at 97-98 ff; (iii) insofar as the fiduciary relationship is claimed to be founded on mutual trust and confidence, the circumstances must nonetheless be such that the parties to the relationship can reasonably expect loyalty from the other, i.e. the subordination of self interest to joint interest: Gibson Motorsport Merchandise Pty Ltd at [11]-[13]; (iv) a person who provides information, suggestion or advice to another upon which that other may reasonably be expected to rely is not for that reason alone necessarily in a fiduciary relationship with that other, though that person will be a fiduciary if the factual matrix is such that that other is in the circumstances reasonably entitled to expect that the information provider, etc is acting in the matter in that other's interest: cf Pilmer v Duke Group Ltd (in liq) [2001] HCA 31 ; (2001) 207 CLR 165; Commonwealth Bank of Australia v Smith (1991) 42 FCR 390; (v) the loyalty obligation imposed on a fiduciary is that he or she cannot (a) in any matter within the scope of the fiduciary relationship (see Bertchnell v Equity Trustees Executor & Agency Co Ltd [1929] HCA 24 ; (1929) 42 CLR 384 at 408) have a personal interest or an inconsistent engagement with a third party; or (b) use his or her position to own, or to a third party, possible advantage, unless this is freely and informedly consented to by the person(s) to whom loyalty is owed, or is authorised by law: Chan v Zacharia [1984] HCA 36 ; (1984) 154 CLR 178 at 199; Breen v Williams [1995] HCA 63 ; (1996) 186 CLR 71 at 113; (vii) outside of commercial agency, partnership and trust relationships, care needs to be taken in concluding that commercial parties are in a fiduciary relationship for some or all purposes - not because a commercial relationship cannot be fiduciary, but because such a relationship, commonly, possesses characteristics (e.g. known adversarial interests, the reasonable expectation of self-reliance, etc.) which negative a fiduciary finding: Gibson Motorsport Merchandise Pty Ltd , at [2]-[18]; News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 539-541.


case_title: Commonwealth Bank of Australia v Smith (1991) 42 FCR 390


case_title: Bertchnell v Equity Trustees Executor & Agency Co Ltd [1929] HCA 24 ; (1929) 42 CLR 384


case_title: Breen v Williams [1995] HCA 63 ; (1996) 186 CLR 71


case_title: News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410


case_text: There is, in my view, no proper basis to support the fiduciary claims. I reject them. I would add for the sake of completeness that while I have had the decisions in Catt v Marac Australia Ltd (1987) 9 NSWLR 639 and Hill v Rose [1990] VR 129 pressed upon me by the applicants, I have found them to be of no real assistance in resolving the present question. As is common where fiduciary relationships are claimed to arise ad hoc, it will be the particular circumstances of the case in question which will ordain the appropriateness or otherwise of a fiduciary finding. It is unnecessary that I comment further on the above two cases: cf Meagher Gummow & Lehane at 5-015.


case_title: Hill v Rose [1990] VR 129


case_text: It is unnecessary for present purposes to characterise the effect of the stipulated condition, although I am satisfied that in this context it conditioned the performance not the formation of the contract: see Meehan v Jones [1982] HCA 52 ; (1982) 149 CLR 571. It is equally unnecessary, given what later occurred, to express a concluded view on the date on which the contract was made. My own view is that it probably was around the time of, but prior to, the 17 July meeting. What is clear is that it was on foot when the deposit of $10,000 was paid on 7 August. Even if that payment was to be regarded strictly as a deposit, the contract's conditional character was spent shortly thereafter when Chehade paid $50,000 on 25 August 2000 and began employment with Tiltform Australia on 1 September 2000. At best by then, it had become an instalment contract and no more. This, I would note, seems to be the submission put on behalf of Sladojevic in relation to the alleged Fifth Misrepresentation. In reaching the above conclusions I have accepted the essence of Benson's evidence. I have rejected much of Chehade's evidence. I do not accept either Bell's or Sladojevic's evidence concerning when and how they respectively became aware of Chehade's investment or decision to invest. In particular I am satisfied that by 17 July 2000 Bell was aware that Chehade had made a commitment to Benson to invest $500,000. 315 To foreshadow matters, my conclusions here have quite some bearing on my findings in relation to the alleged misrepresentations. 316 Bell's evidence is that he started to talk with Chehade about Chehade buying into the accountancy practice in late July 2000. He said that Sladojevic was by then suggesting to him that he should become a director of Tiltform Licensing. He met with Chehade on 26 July 2000 and then, it seems, offered to sell 90 per cent of the practice to Chehade and/or Tripodi for $200,000. I again note that Tripodi did not start work until 31 July although Bell in oral evidence suggested he must have started earlier. I would also note that there is no evidence that Tripodi was a qualified accountant. There is evidence that he was not.


case_text: I have already referred to cll 2.1 and 2.5 of the Policy which link the provision of the cover to full payment of the policy, cl 2.5 providing that if full payment of the gross premium is not made, "there is no cover". By way of contrast, cl 11.1(a)(v) of the Policy acknowledges the insurer's right to cancel the policy under s 60 of the Insurance Contracts Act where (inter alia) the insured "failed to pay the premium for this policy". This distinction between what I will call "cessation of cover" on the one hand and cancellation of the policy on the other is recognised explicitly in the Act in the manner in which it regulates instalment contracts of general insurance: see s 39 and s 62; and see generally Waterman v Gerling Australia Insurance Co Pty Ltd [2005] NSWSC 1066 ; (2005) 194 FLR 419; Sutton, Insurance Law in Australia , 7.42 (3 rd ed 1999). 393 It is a question of construction of the policy, admittedly under the shadow of the Insurance Contracts Act , as to whether in the circumstances Mr Bell had the cover provided by the CGU at the time of notification of the claims, i.e. 27/28 June 2001. Apart from recognising the difference between cessation of cover and cancellation, the Act does not apply to or regulate directly provisions such as cl 2.5. On its face that sub-clause is a self-executing one. Once the contingency on which it is premised occurs, the cover ceases. The cover may later be revived by the making of payment in full, assuming an election to cancel for non-payment had not by then been made. Unless and until that occurred, there would be no cover notwithstanding that the Policy itself may remain on foot. Far from throwing any doubt on this construction the policy itself supports it.


case_text: I have not considered it necessary to give detailed consideration to the principles applied in the construction of contracts of insurance. These have recently been essayed by Brereton J in Waterman's case. For my own part, I respectfully agree with his Honour's conclusion in that case. It deals with the very issue raised here though with a clause not quite as unmistakeably explicit as here. I would merely wish to emphasise that while I well understand that an automatic cessation of cover might have the same undesirable policy effects as the Australian Law Reform Commission identified in relation to automatic cancellation: see ALRC Report 20 Insurance Contracts , 1982 [246]-[247], I agree with Brereton J that there is nothing in the Insurance Contracts Act , that Report and the now accepted principles of interpretation of contracts: see e.g. Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (2005) 223 ALR 560 at [71] ff; affd [2006] FCAFC 144 ; (2006) 156 FCR 1; that would permit the torturing of the clear and coherent terms and text of a contract so as to effectuate that policy in some way. That is a matter for the legislature to address. 395 Accordingly, I am satisfied that there was no insurance cover on 27/28 June 2001; that CGU's defence has been made out; and that the cross-claims must be dismissed with costs. 396 I do not intend to consider the other defences raised by CGU, given that the only live issue between CGU and Bell is costs (having regard to my findings in the Rawley and Chehade matters). However, I should indicate this much. Those defences called into question (i) whether Bell's actions giving rise to the claims against him arose from the conduct of the business planning consultancy covered by the Policy, it being contended that he was acting in the management of Tiltform Licensing by June and July 2000; (ii) whether he was relevantly acting as an "officer of Tiltform Australia and so subject to an express exclusion of the Policy"; (iii) whether Bell's conduct fell within the "unintentional dishonest" acts or omissions exception to the Policy; (iv) whether the policy was voidable under s 28 of the Insurance Contracts Act on account of fraudulent representations contained in the proposal for insurance, or else CGU would have been entitled to reduce its liability to nil. I am of the view in respect of each of these that CGU had a reasonably arguable defence on the material before me.


case_outcome: related

case_text: the face of what I was told yesterday, I released the respondent from the undertaking which he had given on 13 March 2009 (see Resort Huntervalley Pty Limited v Commissioner of Taxation [2009] FCA 301). The matter was again listed before me this morning. When the matter was called on, I was informed by the legal representatives for the parties that the respondent sought an order that the Application be summarily dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and that the respondent also sought a further order that the applicants pay the respondent's costs as agreed, or failing agreement, as taxed. I was handed a document which bears the signature of the solicitor for the first and second applicants and the signature of an authorised officer of the respondent. I was also told that the respondent relied upon O 20 r 5 of the Federal Court Rules in support of his application. That rule is in the following terms: 5 Stay or dismissal (proceedings commenced on or after 1 December 2005) (1) This rule applies to a proceeding commenced on or after 1 December 2005 if the Court is satisfied that, for the proceeding generally or for a claim for relief in the proceeding: (a) the proceeding or claim is frivolous or vexatious; or (b) the proceeding or claim is an abuse of the process of the Court. (2) The Court may order that the proceeding be stayed or dismissed generally or in relation to the claim for relief. (3) The Court may receive evidence on the hearing of an application for an order under subrule (2). Note For a proceeding commenced on or after 1 December 2005 in which the prosecuting party has no reasonable prospect of success, see subsection 31A (2) of the Act. I have not been given a full explanation or, for that matter, much of an explanation as to what occurred on 13 March 2009 during the course of that day and before the undertakings were given on that day. Nor, indeed, have I been given any explanation of what has subsequently occurred insofar as the assets of the applicants are concerned.


case_text: is therefore not only Mr Jones' private interest that must be considered but the public interest in protecting "the effective administration of justice by demonstrating that the court's orders will be enforced": AMIEU v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 107. In this case, Dr Toben's conduct has amounted to a public defiance of the September 2002 orders and the November 2007 undertaking. He made it clear to the public immediately after the hearing before Moore J that he would not honour his undertaking or comply with the orders. The Court therefore has an interest over and above Mr Jones' private interest in securing the benefit of the September 2002 orders and the November 2007 undertaking and having Dr Toben comply with its orders. His public defiance of the Court's orders has called into play the "penal or disciplinary" jurisdiction of the Court: Whitham v Holloway (1995) 183 CLR 525 at 533; AMIEU v Mudginberri Station Pty Ltd [1986] HCA 46 ; 161 CLR 98 at 108. The primary purpose to be achieved in this case is the vindication of the Court's authority.


case_text: Court has the same power to punish contempts as the High Court: s 31 of the Federal Court of Australia Act 1976 (Cth). The High Court has the same power to punish for contempts as was possessed by the Supreme Court of Judicature in England at the time of the enactment of the Judiciary Act 1903 (Cth). The High Court Rules 2004 (r 11.04.1(a)) provide that the High Court may order "that the contemnor pay a fine, be committed to prison, or both pay a fine and be committed to prison". This Court has power to punish by way of fine: Coonan & Denlay Pty Ltd v Superstar Australia Pty Ltd (No 2) [1981] FCA 197 ; (1981) 57 FLR 118. The Court has the duty of ensuring that its orders are complied with. If its orders can be disobeyed with impunity, public confidence in the administration of justice will be undermined.


case_title: Whitham v Holloway (1995) 183 CLR 525

case_text: Court therefore has an interest over and above Mr Jones' private interest in securing the benefit of the September 2002 orders and the November 2007 undertaking and having Dr Toben comply with its orders. His public defiance of the Court's orders has called into play the "penal or disciplinary" jurisdiction of the Court: Whitham v Holloway (1995) 183 CLR 525 at 533; AMIEU v Mudginberri Station Pty Ltd [1986] HCA 46 ; 161 CLR 98 at 108. The primary purpose to be achieved in this case is the vindication of the Court's authority.


case_text: When the appeal was called on for hearing on 4 March 2008, the Appellant failed to appear. In the exercise of the power conferred by s 25(2B)(b)(ii) of the Federal Court of Australia Act 1976 (Cth) ("Federal Court of Australia Act"), I thereupon dismissed the appeal : SZKRJ v Minister for Immigration and Citizenship [2008] FCA 271. On 4 April 2008, the Appellant filed a notice of motion by which she sought that the orders made on 4 March 2008 be set aside and that appeal proceed. She filed an affidavit in support of that application that same day. 3 The order which I made on 4 March 2008 was entered on 12 March 2008. 4 The nature of today's application therefore is, in effect, for the reopening of the appeal as a consequence of a requested setting aside of an order of dismissal.


case_text: In SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 648 , Jacobson J had occasion to consider the power of the court to entertain a notice of motion to set aside an order dismissing an appeal where an Appellant had failed to appear. The circumstances of that case were slightly different to the present in this sense, in the proceedings before Jacobson J the application to set aside the dismissal order was filed before the entry of the dismissal order. As it happened, his Honour considered that there were two sources of power to set aside the dismissal order. One related to the fact that the application had been made before the formal entry of the order. That need not be explored further in the circumstances of this case. The nature of the other basis of power is neatly summarised by the following quote from his Honour's decision at para 4: The second is an implied power under section 23 of the Act to overcome the court's failure to provide a party with a hearing; see Yevad Products Pty Limited v Brookfield [2005] FCAFC 263 at [26] - [33] and the authorities there cited; see also DJL v Central Authority (2000) 201 CLR 226 at [189]. 6 It was accepted by counsel appearing for the Minister that the Court has power to set aside the orders made by me on 4 March 2008. Having regard to the passage which I have quoted from Jacobson J's judgment and the authorities mentioned by his Honour, I am quite satisfied that this concession was appropriately made in law. 7 The principles to be applied in relation to the consideration of an application of this kind are, in my opinion, as follows: 1. is there a satisfactory explanation in respect of the failure to attend at the time and place appointed for the hearing of the appeal; 2. what are the merits of the prospective appeal in the sense that, does it enjoy at least a reasonable prospect of success. 8 Though separate, those considerations are not unrelated in the sense that a case which had patent merit might well attract a favourable exercise of the power to set aside a dismissal order, even though one might have reservations as to whether the explanation for absence was satisfactory. The prejudice occasioned by the initial failure to attend in such circumstances to the Respondent party could be ameliorated by an appropriate order in respect of costs, were the appeal successful. I proceed then to consider the application having regard to each of the considerations that I have mentioned.


case_outcome: referred to

case_text: leading authority on this question is the judgment of the High Court in Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45. In considering the nexus between the conduct and the likely misleading or deception of the prospective purchasers in the case of representations to the public it is necessary to isolate who are the "ordinary" or "reasonable" members of the class of prospective purchasers. In Campomar the Court explained that this process involves an objective attribution of certain characteristics. Such a person would not fail to take reasonable care of their own interests. It is necessary to isolate by some criterion a representative member of that class to determine whether a misconception is likely to arise from the conduct alleged (see [103]). Section 52 contemplates the effect of the conduct on reasonable members of a class. The parties did not dispute the applicable principles in determining the relevant audience though there was an issue about the result in the facts of this case. ACCC submitted, correctly (and it was an agreed fact), that the audience for each catalogue was the public at large but went on to submit that at least one material section of this audience would have been misled or deceived by Prouds' conduct, namely consumers without experience in purchasing jewellery and without knowledge of the Australian jewellery industry or Prouds' pricing or promotion practice. As noted earlier, discounting is common in the jewellery industry and is a feature of Prouds' business model. Discounting occurs both during promotional periods in relation to the items being promoted and also in relation to items being offered for sale at the regular marked price. Ultimately, ACCC described this material section of the public as: "a consumer without experience in purchasing jewellery and without knowledge of Australian jewellery industry or Prouds' pricing or promotion practice. It is a consumer who would be quite happy to pay the full "regular market price", and who if unhappy with that price would either go elsewhere or wait for a price promotion of the item in question. In short, it is a consumer who is ignorant that discounts are or would be available below a regular marked price" . I accept that the evidence establishes there are consumers with these various characteristics and, at base, consumers who would be ignorant that discounted prices are or would be available lower than the regular marked price. Support for this conclusion is found in the evidence concerning historical sales at the regular marked price. Schedule 4 reveals a material percentage of sales at the "was" price even though they were the minority of sales and often a small minority. It is probable that those sales were, in many instances, to consumers who were unaware that discounts were available. It is tolerably clear that in identifying the hypothetical individual contemplated by the joint judgment in Campomar and in considering the effect of the impugned conduct on that individual, the Court can identify from a general and diverse group which may constitute the audience, a hypothetical individual who is most likely to be misled but only in the sense used in the following quotation. That is, one can test the effect of the conduct on a subclass of that general and diverse group. So much is apparent from the judgment of the Full Court in Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247 ; (2004) 139 FCR 215. The Full Court said (at [24]): [The trial judge] (at [16]) summarised the text formulated by the High Court in Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45 at [103] - [105] in these terms: "First, where the persons allegedly misled are not identified individuals but are members of a class it is necessary to isolate "a representative member" of the class and enquire whether this hypothetical individual is likely to be deceived. Second, when considering the likely effect of the misrepresentation on this hypothetical person he (or she) should be judged as an 'ordinary' or 'reasonable' member of the class. In this way, reactions to the representation that are 'extreme' or 'fanciful' will be disregarded." Having identified the test his Honour then said (at [21]): "How then is one to identify and give characteristics to Campomar Sociedad 's hypothetical individual? Logic demands that if one is dealing with a diverse group then, for the purpose of determining whether particular conduct has the capacity to mislead, it is necessary to select a hypothetical individual from that section of the group which is most likely to be misled. If the court is satisfied that this hypothetical individual is likely to have been misled by that conduct, that would be sufficient." The appellants' complaint appears to be that his Honour should have considered the effect of the notices on the "ordinary or reasonable" recipient. However in our view his Honour accurately summarised the Campomar test. There is no inconsistency between testing the effect of the representation by reference to ordinary or reasonable members of the class and by reference to the hypothetical individual. The attribution of characteristics to the ordinary and reasonable members of the class must be objective in order to allow for the wide range of persons who would in fact make up the class: National Exchange Pty Ltd v Australian Securities and Investments Commission (2004) 49 ACSR 369 at [68] per Jacobson and Bennett JJ. Within a large class there may be a number of subclasses of ordinary and reasonable people. Thus in the present case there may be ordinary and reasonable persons who were well informed about the internet and the domain name registration system and other persons, equally ordinary and reasonable, who were not. The issue of how a Court determines whether conduct was misleading or deceptive was addressed by the High Court in Campomar . As noted earlier, the Court indicated the hypothetical person would not fail to take reasonable care of their own interests. Section 52 contemplates the effect of the conduct on reasonable members of a class. The Court noted that in an assessment of the reactions or likely reactions of the "ordinary" or "reasonable" members of the class of prospective purchasers of mass-marketed products for general use, the Court may well disregard assumptions by persons whose reactions are extreme or fanciful (at [105]).


case_text: is tolerably clear that in identifying the hypothetical individual contemplated by the joint judgment in Campomar and in considering the effect of the impugned conduct on that individual, the Court can identify from a general and diverse group which may constitute the audience, a hypothetical individual who is most likely to be misled but only in the sense used in the following quotation. That is, one can test the effect of the conduct on a subclass of that general and diverse group. So much is apparent from the judgment of the Full Court in Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247 ; (2004) 139 FCR 215. The Full Court said (at [24]): [The trial judge] (at [16]) summarised the text formulated by the High Court in Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45 at [103] - [105] in these terms: "First, where the persons allegedly misled are not identified individuals but are members of a class it is necessary to isolate "a representative member" of the class and enquire whether this hypothetical individual is likely to be deceived. Second, when considering the likely effect of the misrepresentation on this hypothetical person he (or she) should be judged as an 'ordinary' or 'reasonable' member of the class. In this way, reactions to the representation that are 'extreme' or 'fanciful' will be disregarded." Having identified the test his Honour then said (at [21]): "How then is one to identify and give characteristics to Campomar Sociedad 's hypothetical individual? Logic demands that if one is dealing with a diverse group then, for the purpose of determining whether particular conduct has the capacity to mislead, it is necessary to select a hypothetical individual from that section of the group which is most likely to be misled. If the court is satisfied that this hypothetical individual is likely to have been misled by that conduct, that would be sufficient." The appellants' complaint appears to be that his Honour should have considered the effect of the notices on the "ordinary or reasonable" recipient. However in our view his Honour accurately summarised the Campomar test. There is no inconsistency between testing the effect of the representation by reference to ordinary or reasonable members of the class and by reference to the hypothetical individual. The attribution of characteristics to the ordinary and reasonable members of the class must be objective in order to allow for the wide range of persons who would in fact make up the class: National Exchange Pty Ltd v Australian Securities and Investments Commission (2004) 49 ACSR 369 at [68] per Jacobson and Bennett JJ. Within a large class there may be a number of subclasses of ordinary and reasonable people. Thus in the present case there may be ordinary and reasonable persons who were well informed about the internet and the domain name registration system and other persons, equally ordinary and reasonable, who were not.


case_text: Next, under this ground, it is said that the decision of the Tribunal in matter N2004/1410 that the applicant was not entitled to compensation attributable to the nature and conditions of his employment is so inconsistent with the evidence as to be Wednesbury unreasonable. This is particularised in the following way: The Tribunal found the following: (i) That Dr Griffith and Dr Wong were of the opinion that the work place was implicated in the applicant's present condition [99]; (ii) That Dr Dalton concluded that the nature and conditions of the applicant's employment involved physical activities which quite reasonably could have aggravated the underlying degenerative condition [99]; (iii) That Dr Griffith also opined that he agreed with Dr Dalton that had the applicant's employment been office based he would have been less likely to have suffered a disc lesion as an aggravation to the degenerative changes in the applicant's spine [100]; The Tribunal then went on at [101] to decide that it was satisfied from the medical evidence, which it had discussed in [99] and [100], that the impairment of the applicant was not attributable to the nature and conditions of the applicant's employment and at [102] that the Tribunal was not satisfied that the available evidence established an entitlement to compensation on the basis of the nature and conditions of the applicant's employment with the respondent. 50 The applicant essentially asserts that there was no evidence which supported the Tribunal's decision that the applicant's impairment was a result of the natural progression of the applicant's lumbar spine and was not attributable to the nature and conditions of his employment. 51 That assertion wrongly presumes, however, that the only evidence relied upon by the Tribunal in arriving at that decision was that referred to in [96] [100] of the Tribunal's reasons for decision. The content of what was said by the Tribunal in [101] of its reasons for decision denies that presumption and evidence capable of supporting the Tribunal's conclusion was referred to in the Tribunal's reasons at [64], [69], [71] [74], [76] and, especially at [93]. 52 The giving by a tribunal of allegedly inadequate weight to certain matters and undue weight to others does not, itself, establish a case of unreasonableness of the kind referred to in Associated Provincial Picture Houses Ltd v Wednesbury Corporation Ltd [1947] EWCA Civ 1 ; [1948] 1 KB 223; Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24. 53 A decision will be vitiated by Wednesbury unreasonableness, unless no decision-maker, acting reasonably, could have made that decision or it is shown that the decision was so unreasonable that no reasonable person could have come to it. In applying this standard a court must proceed with caution lest it exceed its supervisory role by reviewing the decision on the merits: Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 41 42, per Mason J; Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 36 37, per Brennan J. It is not enough to show that another decision-maker might have reached a different result or even that the Court takes the view that a different decision would have been more appropriate: Eshetu at 626 627, per Gleeson CJ and McHugh J; 'Friends of Hinchinbrook Society Inc v Minister for Environment (No. 2) (1997) 69 FCR 28 at 59 65, per Sackville J.


case_text: A decision will be vitiated by Wednesbury unreasonableness, unless no decision-maker, acting reasonably, could have made that decision or it is shown that the decision was so unreasonable that no reasonable person could have come to it. In applying this standard a court must proceed with caution lest it exceed its supervisory role by reviewing the decision on the merits: Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 41 42, per Mason J; Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 36 37, per Brennan J. It is not enough to show that another decision-maker might have reached a different result or even that the Court takes the view that a different decision would have been more appropriate: Eshetu at 626 627, per Gleeson CJ and McHugh J; 'Friends of Hinchinbrook Society Inc v Minister for Environment (No. 2) (1997) 69 FCR 28 at 59 65, per Sackville J.


case_text: The parties agreed before the Tribunal that the decision of 6 January 2004 be set aside: it could not stand in the terms in which it was expressed, since it is not permissible to cease liability 'on and from' , thereby apparently precluding any future claims which may be made: Australian Postal Corporation v Oudyn [2003] FCA 318 and Rosillo v Telstra Corporation Limited [2003] FCA 1628.


case_title: Comcare v Hill (1999) 56 ALD 487

case_text: In Comcare v Hill (1999) 56 ALD 487, Spender J in particular at [9] endorsed the approach of Sackville J.


case_outcome: considered

case_text: This latter question of law was encapsulated by Moore J in Hannaford v Telstra Corporation Limited [2005] FCA 1298 at [27] , where his Honour said: 'In issue is whether, in reviewing determinations under ss 16, 19, 24 or 27 (but not a determination under s 14) it is open to the Tribunal to consider whether the facts underpinning a determination earlier made under s 14, ever existed and affirm determinations under any of these four sections on the basis that a material fact (necessary to support the determination under s 14) did not exist. Counsel for the respondent submitted it was open to the Tribunal to do so. Counsel for the applicant submitted, in effect, that a s 14 determination was immune from reconsideration by the Tribunal, including the facts underpinning it, unless the reviewable decision before the Tribunal was itself a decision under s 62 reconsidering the determination under s 14.' 34 In Hannaford , supra, at [29] Moore J said: 'In the second emphasised passage, Sackville J was indicating that Comcare could, when reconsidering issues of liability under provisions such as s 24 and s 27, revisit factual issues founding an earlier determination under s 14 even though there was no reconsideration being undertaken of that earlier determination under s 62. In so doing, it was open to Comcare to reach conclusions on matters of fact inconsistent with those founding the earlier s 14 determination.' 36 The same question of law was recently considered by Moore J in Hannaford , supra, which I understand is presently on appeal to the Full Court. At [43] his Honour said: 'The Full Court indicated at [39] of its judgment [in Lees ] ... that the powers and discretions exercisable by the Tribunal in reviewing a reviewable decision are limited to the powers that could have been exercised by the person who had reconsidered the determination or determinations under s 62 and who made the reviewable decision. It is not a large step to say, and it would be consistent with the approach taken by the Full Court, that the power to make a finding about one of the five matters arising under s 14, inconsistent with findings earlier made in a determination under that section, exists only when the decision maker is reconsidering that determination and not otherwise. If that is correct then the Tribunal only has power to make a finding that a claimant did or did not suffer from a disease or injury and, if so, the disease or injury had the requisite connection with the employment when the reviewable decision entailed a reconsideration of the determination made under s 14. In my opinion, this is the way the Act (together with the AAT Act) was intended to operate having regard to the Full Court's construction of various provisions of the Act.' 41 What is said in [40], is exemplified in Hannaford itself. First, it has the potential to lead to a situation where a claimant must repay money paid under one or a number of determinations made under other sections unless the relevant body exercises its power under s 114D of the SRC Act to waive its right to recover, assuming the power of waiver under that provision so extends. Second, it will be an exercise in futility for the applicant, in cases such as this, because as was said by his Honour at [47]: 'Potentially the applicant will gain little from his success in these proceedings as the determination under s 14 may be reconsidered and revoked under s 62 for the reasons which prompted the Tribunal to determine the matter as it did.' 42 For the foregoing reasons, I do not think the ground of appeal can be sustained, but even if I am wrong, and it was not open to the Tribunal to make the first finding at [101], I do not think this infects the second finding at [101] namely, that Mr Riddle's impairment was as a result of natural progression of his degenerative lumbar spine and was not attributable to the nature and conditions of his employment, a finding, as I observed at [29], which was not inconsistent with any findings underpinning the s 14 determination because none of the findings went that far. 43 For the foregoing reasons, this ground of appeal must fail.


case_title: Lees v Comcare (1999) 56 ALD 84

case_text: The applicant submitted that the Tribunal wrongly assumed for itself power to exercise jurisdiction under s 62(1) of the SRC Act reconsideration of a determination by a determining authority on its own motion and purported to exercise that jurisdiction. In support of this submission, the applicant pointed to [43] and [48] of the Tribunal's reasons in particular, the Tribunal's observation at [43] that it had been submitted by the respondent '... that on the basis of the evidence, the Tribunal could find that section 14 liability ought never to have been accepted in relation to Mr Riddle ...' and its observations at [48]: 'The Tribunal has noted the submissions of the parties, and relies on the powers regarding reconsideration of own motion accorded to the Commonwealth pursuant to section 62(1) of the Act, and the jurisdiction of the Tribunal ( Lees [v Comcare (1999) 56 ALD 84] (supra)).' 15 I cannot accept, by reference to these passages from the Tribunal's reasons, that it was purporting to exercise jurisdiction under s 62(1). Counsel for the applicant relied on the Tribunal's findings at [94] and [95] of its reasons that it '... was satisfied in relation to Mr Riddle's back pain, that there was only a temporal, and no causal connection with the employment ...' and that it '... was not satisfied that Mr Riddle suffers permanent impairment of the lumbar spine arising out of an injury or aggravation he suffered on the way home from work on 19 February 2003' for a submission that this involved a consideration of s 14 liability, presumably made under s 62(1). Likewise, he relied on the Tribunal's finding at [101] of its reasons that it '... was satisfied ... that Mr Riddle had not suffered a disc lesion or other injury or aggravation on the way home from work on 19 February 2003, and that his impairment was as a result of the natural progression of his degenerative lumbar spine, and was not attributable to the nature and conditions of his employment' for a submission that this involved a consideration of s 14 liability, again presumably made under s 62(1). 16 I cannot agree. The Tribunal made it clear at [9] of its reasons that liability pursuant to s 14(1) of the SRC Act was not in question, but even if it was, the Tribunal's reasons do not provide a sufficient basis for a presumption that such consideration was made under s 62(1). 26 In Lees v Comcare (1999) 56 ALD 84, the Full Court said at [35]: '... a determination under s 14 ... will involve findings on the following matters. First, that an appropriate notice of injury has been given to the relevant authority as required by s 53 of the Act; secondly, that a claim for compensation has been made as required by s 54 of the Act; thirdly, that the person who made the claim or on whose behalf the claim was made was "an employee" at the time of the alleged injury (ss 4 and 5); fourthly, that the employee suffered an injury (s 4); and finally, that the injury has resulted in death, incapacity for work or impairment.' 27 These observations were part of an overall review of the scheme of the SRC Act and the place of a determination under s 14 in that scheme. But they were not critical to the decision in either appeal that was before the Court and therefore do not think that, persuasive as they may be, having been embraced in subsequent decisions of single judges of the Court, they are binding upon me. In any event, my departure is small, even if important. I do not think that a determination under s 14 necessarily involves the final finding that the injury 'has resulted in' death, incapacity for work or impairment. It may, but it may not. Such a finding, it seems to me, is ultimately a matter for determination under ss 17, 19 or 24, not s 14. The wording of s 14 is '... if the injury results in death, incapacity for work or impairment' . Thus, a determination under s 14 may determine that Comcare (or a body in a similar position such as the respondent) is liable to pay compensation in respect of an injury suffered by an employee before it results in death, incapacity for work or impairment, on the basis that it will only be so liable 'if the injury results' in death, incapacity for work or impairment. And that is what seems to have occurred in this case. The s 14 determination involved no finding that Mr Riddle's injury had resulted in death, incapacity for work or impairment. The Statement of Reasons merely said: '5. In order for compensation benefits to be payable, I must be satisfied on the balance of probabilities that the claimant sustained an injury, namely aggravation of pre-existing spinal canal stenosis at L4/5 , which has arisen out of or in the course of his employment with Telstra. I have relied on the specialist opinion of Dr Nall in making a decision and that there is no evidence presently available to indicate that the injury did not arise out of or in the course of the claimant's employment.' The s 14 determination undoubtedly involved findings on the first four matters referred to in the extract from the Full Court's judgment in [26], but not the final matter. 28 It follows, in my view, that the Tribunal's findings at [94] and [95] of its reasons that, in relation to Mr Riddle's back pain, there was only a temporal, and no causal connection with the employment; and that having reviewed the medical evidence, the Tribunal was not satisfied that Mr Riddle suffers permanent impairment of the lumbar spine arising out of an injury or aggravation he suffered on the way home from work on 19 February 2003 were not inconsistent with any findings underpinning the s 14 determination because none of those findings went that far. 29 It also follows, in my view, that the Tribunal's second finding at [101] of its reasons that Mr Riddle's impairment was as a result of natural progression of his degenerative lumbar spine and was not attributable to the nature and conditions of his employment was not inconsistent with any findings underpinning the s 14 determination because none of those findings went that far. 30 On the other hand, the first finding at [101] of the Tribunal's reasons that Mr Riddle had not suffered a disc lesion, or other injury or aggravation on the way home from work on 19 February 2003 is inconsistent with a finding underpinning the s 14 determination that Mr Riddle had suffered an injury on that day, namely, aggravation of pre-existing spinal canal stenosis at L4/5 , which had arisen out of or in the course of his employment with Telstra. 36 The same question of law was recently considered by Moore J in Hannaford , supra, which I understand is presently on appeal to the Full Court. At [43] his Honour said: 'The Full Court indicated at [39] of its judgment [in Lees ] ... that the powers and discretions exercisable by the Tribunal in reviewing a reviewable decision are limited to the powers that could have been exercised by the person who had reconsidered the determination or determinations under s 62 and who made the reviewable decision. It is not a large step to say, and it would be consistent with the approach taken by the Full Court, that the power to make a finding about one of the five matters arising under s 14, inconsistent with findings earlier made in a determination under that section, exists only when the decision maker is reconsidering that determination and not otherwise. If that is correct then the Tribunal only has power to make a finding that a claimant did or did not suffer from a disease or injury and, if so, the disease or injury had the requisite connection with the employment when the reviewable decision entailed a reconsideration of the determination made under s 14. In my opinion, this is the way the Act (together with the AAT Act) was intended to operate having regard to the Full Court's construction of various provisions of the Act.'


case_title: March v E & MH Stramare Pty Ltd [1991] HCA 12 ; (1991) 171 CLR 506

case_text: For a disease to be compensable under the SRC Act something more than a mere temporal connection must be found; there must be a material contribution towards either the contraction of the disease or an aggravation of it: See the definition of 'disease' in s 4(1) of the SRC Act and Treloar v Australian Telecommunications Commission (1990) 26 FCR 316. The Tribunal's finding that there had been a temporal connection only between the onset of the applicant's symptoms and his work precludes any finding that the applicant had suffered a work-related disease which was therefore compensable. That finding was a finding of fact: March v (E & MH) Stramare Pty Ltd [1991] HCA 12 ; (1991) 171 CLR 506 esp. per Mason CJ at 515-517.


case_text: The giving by a tribunal of allegedly inadequate weight to certain matters and undue weight to others does not, itself, establish a case of unreasonableness of the kind referred to in Associated Provincial Picture Houses Ltd v Wednesbury Corporation Ltd [1947] EWCA Civ 1 ; [1948] 1 KB 223; Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24. 53 A decision will be vitiated by Wednesbury unreasonableness, unless no decision-maker, acting reasonably, could have made that decision or it is shown that the decision was so unreasonable that no reasonable person could have come to it. In applying this standard a court must proceed with caution lest it exceed its supervisory role by reviewing the decision on the merits: Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 41 42, per Mason J; Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 36 37, per Brennan J. It is not enough to show that another decision-maker might have reached a different result or even that the Court takes the view that a different decision would have been more appropriate: Eshetu at 626 627, per Gleeson CJ and McHugh J; 'Friends of Hinchinbrook Society Inc v Minister for Environment (No. 2) (1997) 69 FCR 28 at 59 65, per Sackville J.


case_title: Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611


case_outcome: applied

case_title: Power v Comcare (1998) 89 FCR 514

case_text: The judgment of Sackville J in Power v Comcare (1998) 89 FCR 514 at 525 526 supports the proposition that it is open to the Tribunal to consider whether the facts underpinning a determination earlier made under s 14, ever existed and affirm determinations under any of the four sections mentioned on the basis that a material fact (necessary to support the determination under s 14) did not exist. His Honour said: 'Only Comcare addressed in submissions the character of the 22 March 1995 decision. In supplementary written submissions, Mr Johnson argued that Comcare's powers under ss 69(a) and 70 of the SRC Act authorised it to make a decision as to whether Comcare continued to be liable to compensate the applicant after March 1995. Mr Johnson did not identify explicitly the sections "under" which any such decision could be made, other than ss 69(a) and 70 (neither of which is referred to in the definition of "determination" in s 60(1) of the SRC Act). However, it was implicit in his submissions that the decision to terminate Comcare's liability to compensate the applicant as from 9 March 1995 was made "under" ss 14 and 19 of the SRC Act . If this is correct, it would follow that Comcare had power to reconsider the decision under s 62. On this analysis, s 43(1) of the AAT Act conferred on the AAT the same powers and discretions as were available to the decision-maker, including the power under s 62(5) to affirm, revoke or vary the delegate's decision that Comcare's liability had ceased from 9 March 1995. I should interpose that it was common ground that the decision of 22 March 1995 was not a reconsideration, pursuant to s 62(1) of the SRC Act, of either the 1990 or the 1993 determinations. In other words, both parties explicitly agreed that Comcare had not purported to exercise the power, conferred by s 62(1) of the SRC Act, to reconsider the earlier determinations on its own motion. I must confess to thinking that, although the delegate who decided to terminate the applicant's compensation for his coronary disease did not direct attention to the source of power for such a decision, the view adopted by the parties is not entirely self-evident, particularly having regard to the breadth of the power in s 62(1) and the absence of a temporal limitation on its exercise: De La Cruz v Australian Postal Commission (1997) 73 FCR 204 at 207-208 per Emmett J. Nonetheless, both parties were adamant on this question and the case proceeded on the basis that the decision of 22 March 1995 was not made pursuant to the power of reconsideration conferred by s 62(1) of the SRC Act. In these circumstances, I accept Mr Johnson's analysis of the nature of the decision of 22 March 1995, namely, that it was made in exercise of the power conferred by s 69(a), but was also a decision under ss 14 and 19 of the SRC Act. This analysis is consistent with the authorities giving a broad construction to the power in s 69(a) of the SRC Act to make "determinations... in relation to claims ": Australian Postal Corporation v Nguyen (1996) 71 FCR 516 at 521-522 per Jenkinson J. Moreover, leaving s 62(1) to one side, unless a decision to cease compensation from a particular date is regarded as being made "under" ss 14 or 19 (or both), the claimant adversely affected by the decision would not be entitled to have the decision reconsidered under s 62(2) and, consequently, would not be entitled to seek review by the AAT. Parliament cannot have intended this result. Mr McManamey, who appeared on behalf of the applicant, did not suggest otherwise. The reconsideration decision of 7 April 1995 was made pursuant to s 62(4) of the SRC Act. As I have noted, the decision-maker had power to affirm, revoke or vary the determination made by the delegate on 22 March 1995: s 62(5). For the purpose of reviewing the reconsideration decision (the "reviewable decision"), the AAT could exercise all the powers and discretions conferred by the SRC Act on the reconsideration decision-maker: AAT Act, s 43(1); Fletcher v Commissioner of Taxation (Cth) (1988) 19 FCR 442 at 453. The question is then whether the reconsideration decision-maker was entitled to affirm the decision of 22 March 1995, on the basis of a finding that the applicant's coronary disease had never been causally related to his employment. If so, the AAT was also entitled to approach the matter on this basis. I think the better view is that the reconsideration decision-maker, for the purpose of determining whether Comcare had a continuing liability to compensate the applicant for his coronary condition, had power to consider whether that condition had ever been causally related to his work. The question of Comcare's liability arose because Comcare was empowered under s 69(a) of the SRC Act to make a determination "in relation to" the claim made by the applicant to Comcare in about 1990 for compensation for acceleration of his coronary heart disease. It was required to make that determination accurately (s 69(a)) and in accordance with the "substantial merits of the case" (s 72(a)).' (Emphasis added) 40 Moore J's observation at [40] that Sackville J in Power , supra, recognised the conclusion he reached was not the only one reasonably open by Sackville J's use of the words 'I think the better view is that ...' in the last paragraph of the quotation in [33] supra may well be right; on the other hand, and with respect, I think Sackville J's view is the better one. Moore J's approach may not, as his Honour says, render the scheme of the SRC Act unworkable, but it has the potential, with respect, to render it cumbersome in determining claims for compensation under specific heads which are rejected, such as in this case, following upon a determination of liability under s 14, unless that determination is itself reconsidered (by the determining authority's own motion) under s 62(1) of the SRC Act.


case_title: Rosillo v Telstra Corporation Limited [2003] FCA 1628


case_title: Treloar v Australian Telecommunications Commission (1990) 26 FCR 316


case_title: Friends of Hinchinbrook Society Inc v Minister for Environment (No. 2) (1997) 69 FCR 28


case_text: Monday, 7 December 2009 the first applicant applied for further orders restraining the publication of T.I.G.A. 12/2:2009 but, for reasons which I gave at that time, I refused that application: Metcash Trading Limited v Bunn [2009] FCA 1468. I am advised that Mitre 10 held meetings on Monday, 7 December 2009 and that further meetings are to be held today which may lead to the parties negotiating and seeking to agree upon an Implementation Agreement. If an agreement can be reached, the parties will need to apply to the Court and seek shareholder approvals for the schemes of arrangement which are proposed. The first applicant seeks a continuation of the interim orders made on Saturday, 5 December 2009 until at least the schemes of arrangement have been effected, which will be some time in the first quarter of 2010.


case_text: purpose of an interlocutory injunction is to preserve the status quo until trial when the rights of the parties can be determined: Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63 ; (2001) 208 CLR 199.


case_text: Castlemaine Tooheys Limited v South Australia [1986] HCA 58 ; (1986) 161 CLR 148 at 153, Mason ACJ identified the principles which govern the grant or refusal of an interlocutory injunction in both private and public law litigation. He said: In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.


case_text: principles were addressed by the High Court in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 where Gummow and Hayne JJ said at [65]: The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd . This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued: The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the tiral of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted. By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal: How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks. (Footnotes omitted.)


case_text: principles were addressed by the High Court in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 where Gummow and Hayne JJ said at [65]: The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd . This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued: The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the tiral of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted. By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal: How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks. (Footnotes omitted.) That case was concerned with a publication by the national broadcaster and a claim for defamation as a result of the material broadcast. Gleeson CJ and Crennan J agreed with the principles stated by Gummow and Hayne JJ and, in particular, that the proper principle for the grant of an interlocutory injunction was as stated in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618. They said at [19]: In the context of a defamation case, the application of those organising principles will require particular attention to the considerations which courts have identified as dictating caution. Foremost among those considerations is the public interest in free speech. This is not a case in defamation but it is a case in injurious falsehood and for a contravention of s 52 of the TPA. The first applicant seeks to have this Court restrain the respondent making statements about the way in which the first applicant has carried on its business and might carry on its business if the first applicant were to succeed in having Mitre 10 accept its proposal. It seeks an order restraining the respondent's right to freedom of speech. The status quo is sometimes difficult to establish and depends upon the viewpoint one might take. Mr Livesey QC, who appeared on the second hearing, said that the status quo was effectively identified as his client's right to make a proposal to the Mitre 10 shareholders/franchisees uncontaminated by any misrepresentations made by the respondent to those shareholders/franchisees. The respondent on the other hand would say that the status quo was his right to communicate with people (shareholders/franchisees) who might be affected in the future by the way in which the applicants conduct their business.


case_text: Between those two situations is the present type of case, namely, those cases in which the Court has heard some evidence, whether by way of preservation or early evidence, and is able to draw on that evidence in assessing the appropriateness of making the orders. An example of such a case is Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 ( Lovett ). 18 Whilst the particular circumstances of each application require individual consideration, some principles are generally applicable. In Lovett it was said at [36] [37]: 36. The focus of the section is on the making of an agreement by the parties. This reflects the importance placed by the Act on mediation as the primary means of resolving native title applications. Indeed, Parliament has established the National Native Title Tribunal with the function of conducting mediations in such cases. The Act is designed to encourage parties to take responsibility for resolving proceedings without the need for litigation. Section 87 must be construed in this context. The power must be exercised flexibly and with regard to the purpose for which the section is designed. 37. In this context, when the Court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6 ; [2002] FCA 660 , Ward v State of Western Australia [2006] FCA 1848. 21 The extent to which it is necessary for a State respondent to investigate the claim for the purpose of persuading the Court to act under s 87 was further explained in Lovett at [37] [38]: 37. ... Insofar as this latter consideration [whether the agreement was entered into on an informed basis] applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109 ; [2001] FCA 1229. There is a question as to how far a State party is required to investigate in order to satisfy itself of a credible basis for an application. One reason for the often inordinate time taken to resolve some of these cases is the overly demanding nature of the investigation conducted by State parties. The scope of these investigations demanded by some States is reflected in the complex connection guidelines published by some States. 38. The power conferred by the Act on the Court to approve agreements is given in order to avoid lengthy hearings before the Court. The Act does not intend to substitute a trial, in effect, conducted by State parties for a trial before the Court. Thus, something significantly less than the material necessary to justify a judicial determination is sufficient to satisfy a State party of a credible basis for an application. The Act contemplates a more flexible process than is often undertaken in some cases.


case_text: An important issue which has been addressed in much native title litigation is the significance of change in the traditional laws acknowledged and traditional customs observed by applicants. The history of the impact of white settlement on indigenous peoples means that change is an almost invariable feature of these cases. In Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 ; [2002] HCA 58 ( Yorta Yorta ) the joint judgment of Gleeson CJ, Gummow and Hayne JJ addressed the issue thus (at [83]): The relevant criterion to be applied in deciding the significance of change to, or adaptation of, traditional law or custom is readily stated (though its application to particular facts may well be difficult). The key question is whether the law and custom can still be seen to be traditional law and traditional custom. Is the change or adaptation of such a kind that it can no longer be said that the rights or interests asserted are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples when that expression is understood in the sense earlier identified? 29 The application of these principles on a case by case basis allows for a good deal of flexibility in approach. Where, as in this case, parties seek orders under s 87 as the result of agreements reached after extensive negotiations, the Court is not privy to the basis on which agreement is reached. Those negotiations are confidential. In the present case the Fletcher document gives some insight into the approach taken by the State to the information in its hands. On the central issue of the Thalanyji laws and customs concerning land holding the Fletcher document states the following: 23. Rights to Thalanyji land were traditionally held and transmitted patrilineally at the local, estate, group level. However, in response to the dramatic decline in their population following British sovereignty and other effects of settlement, the traditional system of conferring rights and interests in Thalanyji country adapted to a system whereby today all Thalanyji people hold generalised rights to Thalanyji country, however some Thalanyji families are also responsible for certain areas in Thalanyji country and have primacy over that area. 24. These families are recognised as the primary spokespersons or custodians with responsibility for designated parts of Thalanyji country, referred to as 'special places' or 'districts'. The Thalanyji rule is that a senior member (or members) of the family may be described as being the custodian or maatha ('boss') for each special place. These people represent their families as the primary spokespersons in relation to these special places and, under Thalanyji law and custom, are to be consulted in relation to the use of this land. 25. The evidence suggests that some Thalanyji families have occupied estate group or special areas for generations. Further, members of certain Thalanyji families have also been handed responsibility for a number of other estate group areas, as well as various special places, throughout the claim area, from other Thalanyji predecessors (who often died without surviving offspring). 26. These more recent patterns of transmission of responsibilities or rights to speak for particular areas of land generally reflect an attenuation of the traditional laws of patrilineal clan inheritance to accommodate the population decline that occurred following sovereignty. The succession of present-day Thalanyji people to the country of extinct Thalanyji local groups occurred under an ongoing system of law and custom in relation to the land whereby estates of extinct local groups were cared for, and gradually succeeded to, by custodians from other Thalanyji local groups. 30 The conclusion arrived at by the State concerning the impact of the change in acknowledgment of traditional laws and observance of traditional customs concerning land holding demonstrates a liberal, flexible, fair and just application of the principles expounded in the joint judgment in Yorta Yorta . That approach is particularly appropriate to the process envisaged by the agreement making provisions of the Act such as s 87. The State is to be commended on its approach in this regard. Having said this, it should be emphasised that the Court is not in a position to know whether or not the connection material required to be provided by the applicants was excessive. There have been instances in other cases where excessive demands for information seem to have been made. As explained earlier in these reasons, that approach is inconsistent with the concept of agreement making provided by the Act. 31 In this case, all of the parties to the application were represented by independent competent lawyers. The process adopted by the State was comprehensive. The preservation evidence allowed the Court to hear the voice of the Thalanyji people directly and the evidence went a considerable way to establishing the requirements of the Act for a determination of native title. 32 The parties are to be congratulated for their efforts over a long period in arriving at this agreement. No doubt the work of the Tribunal, and particularly members Dan O'Dea and John Catlin who oversaw the mediation, were central to the positive outcome. Mr Bower, who appeared at the hearing as counsel for the applicants, described the great assistance given by the Tribunal to resolving the key problems of overlaps with other application areas. Mr Bower also described the overall approach of the State as demanding but helpful. 33 For these reasons I am satisfied that it is appropriate to act in accordance with the agreement and make the orders sought. 34 Where a native title determination is made, the Court must make a determination concerning the holding of the native title rights and interests, involving the nomination of a prescribed body corporate. Section 55 of the Act relevantly provides: Determinations by Federal Court If: (a) the Federal Court proposes to make an approved determination of native title; and (b) the determination is that native title exists at the time of making the determination; the Federal Court must, at the same time as it makes the determination, make the determinations in sections 56 (which deals with holding the native title on trust)...


case_text: One consideration bearing on this question is whether the parties have had independent and competent legal representation: Munn for and on behalf of the Gunggari People v Queensland (2001) 115 FCR 109 ; [2001] FCA 1229 ( Munn ). 20 In Munn at [29] [30] the role of a State respondent was referred to thus: 29. Next, the Court must have regard to the question of whether or not the parties to the proceeding, namely, those who are likely to be affected by an order, have had independent and competent legal representation. That concern would include a consideration of the extent to which the State is a party, on the basis that the State, or at least a Minister of the State, appears in the capacity of parens patriae to look after the interests of the community generally. The mere fact that the State was a party may not be sufficient. The Court may need to be satisfied that the State has in fact taken a real interest in the proceeding in the interests of the community generally. That may involve the Court being satisfied that the State has given appropriate consideration to the evidence that has been adduced, or intended to be adduced, in order to reach the compromise that is proposed. The Court, in my view, needs to be satisfied at least that the State, through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicants rely. 30. However, that is not to say that the Court would itself want to predict the State's assessment of that evidence or to make findings in relation to those matters. On the other hand, in an appropriate case, the Court may well ask to be shown the evidence upon which the parties have based their decision to reach a compromise. Either way, I would not contemplate that, where the Court is being asked to make an order under s 87, any findings would be made on those matters. The Court would look at the evidence only for the purpose of satisfying itself that those parties who have agreed to compromise the matter, particularly the State on behalf of the community generally, are acting in good faith and rationally. 21 The extent to which it is necessary for a State respondent to investigate the claim for the purpose of persuading the Court to act under s 87 was further explained in Lovett at [37] [38]: 37. ... Insofar as this latter consideration [whether the agreement was entered into on an informed basis] applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109 ; [2001] FCA 1229. There is a question as to how far a State party is required to investigate in order to satisfy itself of a credible basis for an application. One reason for the often inordinate time taken to resolve some of these cases is the overly demanding nature of the investigation conducted by State parties. The scope of these investigations demanded by some States is reflected in the complex connection guidelines published by some States. 38. The power conferred by the Act on the Court to approve agreements is given in order to avoid lengthy hearings before the Court. The Act does not intend to substitute a trial, in effect, conducted by State parties for a trial before the Court. Thus, something significantly less than the material necessary to justify a judicial determination is sufficient to satisfy a State party of a credible basis for an application. The Act contemplates a more flexible process than is often undertaken in some cases.


case_text: The power under s 87(1)(c) has been exercised in a variety of circumstances. In some cases it has been exercised after the Court has reserved its decision following the hearing of all the evidence: Nangkiriny v State of Western Australia (2002) 117 FCR 6 ; [2002] FCA 660. In such cases the Court has before it material on which to assess the appropriateness of the orders sought by consent. 18 Whilst the particular circumstances of each application require individual consideration, some principles are generally applicable. In Lovett it was said at [36] [37]: 36. The focus of the section is on the making of an agreement by the parties. This reflects the importance placed by the Act on mediation as the primary means of resolving native title applications. Indeed, Parliament has established the National Native Title Tribunal with the function of conducting mediations in such cases. The Act is designed to encourage parties to take responsibility for resolving proceedings without the need for litigation. Section 87 must be construed in this context. The power must be exercised flexibly and with regard to the purpose for which the section is designed. 37. In this context, when the Court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6 ; [2002] FCA 660 , Ward v State of Western Australia [2006] FCA 1848.


case_text: The way in which native title jurisprudence has developed provides a significant contextual factor which should influence a State respondent in specifying the extent to which applications should be investigated where orders under s 87 are to be sought. In broad terms the learning relating to extinguishment has shown that successful applications will not interfere significantly with the rights and interests of respondent parties. To the extent that native title rights and interests are inconsistent with the rights of respondents, those latter rights will prevail: Western Australia v Ward (2002) 213 CLR 1 ; [2002] HCA 28. 23 This circumstance moderates the degree of verification required by a State respondent acting in the interests of citizens on questions such as the constitution of the relevant society at settlement, and the requirements of continuity in the acknowledgement of traditional laws and the observation of traditional customs. It is necessary to emphasise that, in the context of s 87, State respondents are not required, in effect, to conduct a trial of the application in order to satisfy the Court that it is appropriate to make the orders sought. Section 87 is designed to avoid that necessity and all the disadvantages which are involved in the conduct of litigation. 24 In the present case the starting point for consideration of the appropriateness of making the orders sought is the preservation evidence heard by the Court between 12 and 15 September 2004. Evidence was given by senior, and mostly elderly, Thalanyji people. Many were not in good health and their effort in giving evidence should be particularly acknowledged. Those witnesses were Albert Hayes, Leslie Hayes, Judy Hughes, Valerie Ashburton and Laura Hicks. Sadly one other of the elders who gave evidence has passed away. The Court travelled to, among other places, Buurabalayji, Five Mile Pool, Mount Mary, Gurruda Pool near Dickson's Crossing, Mumbarda Rocks, Gnungarnu, Wundarie Hill and Barradale. The evidence provided a firm foundation for findings, if they had become necessary, that there was and is a rich and enduring history of Thalanyji life in the area. Particularly significant and powerful evidence was given at several sites associated with the water serpent visited by the Court. A document entitled The Thalanyji People, their history and connection to country was prepared by Ms Debbie Fletcher, the Research Director at the Office of Native Title within the Western Australian Department of Treasury and Finance, to summarise the connection material accepted by the State (the Fletcher document). It described some of that evidence relating to connection with land thus: 14. The normative system of the Thalanyji people is characterised by a belief that their totemic ancestors gave form to the landscape and provided the Thalanyji people with their languages, law and customs. 15. The Thalanyji people speak of being taught by their forebears about the spiritual forces that inhabit Thalanyji country, including the spiritual beings that gave the Thalanyji country its form. These creator ancestors or "old people" as they are described by the Thalanyji continue to inhabit the land and have done so since time immemorial and are the source of all tradition, custom and law. The Thalanyji people also believe that the spirits of their more recent ancestors who have passed away are also present within the country. Connection is thus with a line of human ancestors whose spirits remain in the country and who mediate the relationship between the living Thalanyji and the land. ... 19. The mythological being most commonly referred to by the claimants as inhabiting thalu [totem] places is the wanamangurra or water snake, and there are stories of its powerful reactions when thalu have been disturbed. Certain sites which are associated with the wanamangurra and through which the wanamangurra travelled are known to be dangerous places and are not supposed to be touched or talked about as it could result in sickness. An example is the important Buurabalyji site on the outskirts of the town of Onslow. The Court visited Buurabalyji during the hearing of preservation evidence and Albert Hayes said it was a very dangerous place due to the presence of wanamangurra. 25 The preservation evidence also included testimony about the continued use of language, of the enduring marriage and avoidance rules, as well as the use of the area for hunting and fishing. Many instances of current practice of laws and customs occurred during the course of the preservation hearing as evidenced by Albert Hayes' strong reaction to the Court's visit to Buurabalyji on 12 September 2004. As indicated by the Court to the parties at the end of the preservation hearing, the evidence provided a strong basis for negotiating an agreement. 26 Mr Gary Hamley is the Executive Director of the Office of Native Title. He swore an affidavit on 5 September 2008 in support of the application which sets out the process which was undertaken by the State of Western Australia in coming to the agreement. He said that the applicants' legal advisors had provided material to the State which included a genealogy prepared by Kim Barber provided in February 1999, a mediation report prepared by Kim Barber provided in May 2000, and anthropological comments and reports prepared by Dr Edward McDonald provided in December 2004, June 2005, August 2005 and, with Paul Greenfield, in June 2006. Mr Hamley also told of a two day meeting between the State and the applicants at Onslow on 10 and 11 May 2006. There were detailed discussions between the Thalanyji people and the State about the nature and extent of the Thalanyji people's continuing connection to country. Mr Ranson, who appeared at the hearing on behalf of the State, expanded on this meeting in his oral submissions and described it as a "breakthrough point in the negotiations". Such initiatives and co-operative techniques which have developed in the course of managing native title litigation point the way to helpful and positive methods by which agreement can be reached. This experience should be transmitted amongst practitioners of native title as a template for future practice.


case_text: At the other end of the spectrum are cases where the Court has no evidence before it of the underlying claim but only evidence of the agreement of the parties: Ward v State of Western Australia [2006] FCA 1848. 18 Whilst the particular circumstances of each application require individual consideration, some principles are generally applicable. In Lovett it was said at [36] [37]: 36. The focus of the section is on the making of an agreement by the parties. This reflects the importance placed by the Act on mediation as the primary means of resolving native title applications. Indeed, Parliament has established the National Native Title Tribunal with the function of conducting mediations in such cases. The Act is designed to encourage parties to take responsibility for resolving proceedings without the need for litigation. Section 87 must be construed in this context. The power must be exercised flexibly and with regard to the purpose for which the section is designed. 37. In this context, when the Court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6 ; [2002] FCA 660 , Ward v State of Western Australia [2006] FCA 1848.


case_text: One method for assessing damages is the licence fee or royalty method. Under this approach, the owner of the copyright recovers "a sum equal to the fee that would fairly be charged for use of the copyright work": TS&B at [206]. As Vawdrey properly conceded, such a method is often rejected if the court takes the view that the applicant would not have granted such a licence to the respondent because, for example, the parties are competitors or the copyright work was devised for a particular purpose and that purpose was frustrated or destroyed by the infringing use of the work by the respondent: see Bailey v Namol 53 FCR at 112 (concluding that lost profits is the better measure of damages where the copyright work was created for a specific purposes which has been frustrated by the infringement) and TS&B at [206] (stating that the a lost profits approach is preferable to a licence fee approach where the plaintiff and infringer are "in actual or potential competition in relation to the copyright work"). See also Aristocrat Technologies Australia Pty Ltd v DAP Services (Kempsey) Pty Ltd (2007) 157 FCR 564 at [27]-[29]; Norm Engineering Pty Ltd v Digga Australia Pty Ltd (2007) 162 FCR 1 at [257], appeal allowed in part on other grounds at 166 FCR 268.


case_outcome: followed

case_text: Damages under s 115(2) of the Copyright Act are to compensate for the loss suffered as a result of the infringement: Bailey v Namol Pty Ltd [1994] FCA 1401 ; (1994) 53 FCR 102 , 110-111. The measure of damages is to be, so far as is possible, that sum which will put Krueger in the same position as it would have been in if it had not suffered the wrong: Bailey 53 FCR 110-111. 29 In valuing Krueger's damages claim, there are some essential principles: First, Krueger has the burden of proving its loss; secondly, the object is to compensate Krueger and not to punish Vawdrey; and, finally, although reported cases may be of assistance, each case must be decided on its own particular facts: Bailey 53 FCR at 111. 31 One method for assessing damages is the licence fee or royalty method. Under this approach, the owner of the copyright recovers "a sum equal to the fee that would fairly be charged for use of the copyright work": TS&B at [206]. As Vawdrey properly conceded, such a method is often rejected if the court takes the view that the applicant would not have granted such a licence to the respondent because, for example, the parties are competitors or the copyright work was devised for a particular purpose and that purpose was frustrated or destroyed by the infringing use of the work by the respondent: see Bailey v Namol 53 FCR at 112 (concluding that lost profits is the better measure of damages where the copyright work was created for a specific purposes which has been frustrated by the infringement) and TS&B at [206] (stating that the a lost profits approach is preferable to a licence fee approach where the plaintiff and infringer are "in actual or potential competition in relation to the copyright work"). See also Aristocrat Technologies Australia Pty Ltd v DAP Services (Kempsey) Pty Ltd (2007) 157 FCR 564 at [27]-[29]; Norm Engineering Pty Ltd v Digga Australia Pty Ltd (2007) 162 FCR 1 at [257], appeal allowed in part on other grounds at 166 FCR 268. 34 The appropriate measure of damage in circumstances such as these (ie where the plaintiff and defendant are in actual or potential competition in relation to the copyright work) was described by Finkelstein J in TS&B at [207] as follows: ... Then lost profit is usually the best measure of damage. The plaintiff must show that he has lost sales to the defendant as a result of the infringement and quantify the loss suffered. This requires the court to explore the counterfactual hypothesis of the contracts the plaintiff would have obtained absent the infringement and the costs associated with them . Necessarily the process will involve a degree of speculation, but that is no bar to recovery. The claim is not for loss of revenue but for loss of profits. The profits to be calculated are the lost net profits. By net profits I mean revenue less all costs including variable and indirect costs, but not including income tax. Care must be taken to ensure that costs savings are brought to account. If a plaintiff sells less of his products he will have less costs and that should be treated as a gain to be offset against the lost revenue which forms the basis of the computation of lost profits. The plaintiff is also entitled to recover indirect losses (such as damage to goodwill) as long as the cause is the infringement, the loss is foreseeable and is not unduly speculative. It will often be impossible to be precise in the calculation of lost profit. If needs be, the calculation can be rough and ready, with the benefit of any doubt favouring the plaintiff. (Emphasis added.) See also Bailey 53 FCR at 111-112 (acknowledging that the lost profits assessment depends upon a counterfactual). 58 I come now to Krueger's claim for additional damages. In a claim for additional damages under s 115(4) of the Copyright Act , some general observations were made by Besanko J in Futuretronics.com.au Pty Limited v Graphix Labels Pty Ltd (No 2) [2008] FCA 746 at [17] : First, there is no need ... to consider if an award of additional damages can be made under s 115(4) [even where] no damages are awarded under s 115(2) because I have awarded ... damages under s 115(2) ( Polygram Pty Ltd v Golden Editions Pty Ltd (No 2) 38 IPR 451 at 459-461 per Lockhart J; MJA Scientifics [International Pty Ltd v S C Johnson and Son Pty Ltd (1998) 43 IPR 275] at 283-284 per Sundberg J). Secondly, it is not necessary that there be a proportionate relationship between the additional damages awarded under subs (4) and the damages awarded under subs (2): Flags 2000 Pty Ltd v Smith (2003) 59 IPR 191 at 198 per Goldberg J. An award of additional damages under subs (4) is not dependent upon the adequacy or inadequacy of an award of damages under subs (2). Thirdly, the matters in subs (4)(b)(i)-(iv) inclusive are not preconditions to an award of additional damages. In other words, and using the flagrancy of the infringement as an example, the Court must have regard to the flagrancy of the infringement in determining whether to award additional damages, but is not the case that additional damages can be awarded only if the breach involves a particular degree of flagrancy. Fourthly, ...there is a distinction between conduct of a defendant after an infringement (or after being informed that he has allegedly infringed the plaintiff's copyright) and relevant to the substantive allegations against him on the one hand, and the defendant's conduct of his defence to an action for an infringement of copyright in relation to procedural matters on the other. The former matter is within the terms of s 115(4)(b)(ib) of the [Copyright] Act, whereas ... the latter matter is a matter to be taken into account in determining the appropriate order as to costs. ... Fifthly, an award under s 115(4) of the [Copyright] Act can encompass damages which at common law would be aggravated damages and exemplary damages: Bailey 53 FCR at 113-114.


case_text: Dowsett J helpfully canvassed the principal tort authorities in Louis Vuitton at [148]-[170]; see also Bialkower v Acohs Pty Ltd (1998) 83 FCR 1 , 12. In deciding whether two defendants should be held jointly liable for copyright infringement, his Honour also relied on The Koursk , concluding that it must be shown that they acted in concert; that is, that there was a "concurrence in the act or acts causing damage, not merely a coincidence of separate acts which by their conjoined effect cause damage": Louis Vuitton at [171]. Again, this is such a case. Camerons and Vawdrey concurred in the acts which caused Krueger the damage of which it complains; there was more than a coincidence of separate acts joining together to cause damage to Krueger. Accordingly, each of Camerons and Vawdrey is jointly and severally liable for the copyright infringement.


case_outcome: approved

case_text: However, as Krueger accepted in this case, the amount that was received by Krueger in settlement from Camerons must be deducted from any damages awarded against Vawdrey for the same infringement in recognition of the elementary principle of tort law allowing only one recovery for a wrong: BUC International Corp v International Yacht Council Ltd (11 th Cir 2008) 571 F3d 1271, 1278; see also Baxter v Obacelo Pty Ltd [2001] HCA 66 ; (2001) 205 CLR 635 at [37] (per Gleeson CJ and Callinan J) and at [64] (per Gummow and Hayne JJ) (describing the bar against double satisfaction as a universal rule and accepting that credit must given for any amount received in settlement from a co-ordinately liable tortfeasor). Accordingly, any final award of damages must reflect a deduction of the principal sum (but not interest) received by Krueger from Camerons in settlement of the claims against the Cameron parties. 27 As noted earlier, Krueger elected to take damages and seeks two categories of damages: compensatory damages under s 115(2) of the Copyright Act , including damages for loss of goodwill and mitigation costs, and additional damages under s 115(4) of the Copyright Act .


case_text: This section has been the subject of previous judicial analysis: e.g. Golden Editions Pty Ltd v Polygram Pty Ltd (1996) 61 FCR 479 ; see also Boyapati v Rockefeller Management Corporation [2008] FCA 995 ; Milwell Pty Ltd v Olympic Amusements Pty Ltd [1999] FCA 63 ; (1999) 85 FCR 436 ; Sheldon & Hammond Pty Ltd v Metrokane Inc [1999] FCA 63 ; (2004) 85 FCR 436 ; Cody Opal (Australia) Pty Ltd v Dimasi (2004) 64 IPR 378 ; Kalamazoo (Aust) Pty Ltd v Compact Business Systems Pty Ltd (1985) 84 FLR 101. Adopting the language of Burchett and Tamberlin JJ in Golden Editions at 480 when considering a s 115(3) defence: [I]n general the question is not whether [Vawdrey] knew the identity of the owner of the copyright but whether [Vawdrey] has established a lack of awareness, and of reasonable grounds for suspecting, that the relevant act was an infringement of the copyright, in whomsoever that copyright might be vested. (Emphasis added.)


case_title: Cody Opal (Australia) Pty Ltd v Dimasi (2004) 64 IPR 378


case_title: Golden Editions Pty Ltd v Polygram Pty Ltd (1996) 61 FCR 479