case_text: The definition of Manufacture-related activity , to the extent of pars (a), (b) and (c) as substantially extracted above, was described in the joint judgment of Heerey and Merkel JJ (with whom Carr J agreed other than to an extent not here material) in State Electricity Commission of Victoria v Commissioner of Taxation [1999] FCA 1329 ; (1999) 96 FCR 22 at 29, at [24], as follows: 'Paragraphs (a), (b) and (c) of Item 18(5) of the Exemptions Act deal with a continuum. The common feature is the application of a process or treatment. Paragraph (a) is concerned with the processing of raw materials prior to the stage of manufacture, whether the processor is or is not to be the manufacturer. Paragraph (b) is concerned with the actual process of manufacture. Again the processor can be the manufacturer or someone else. Paragraph (c) is concerned with a post-manufacture stage. But the person who is to market or use the goods has to be the manufacturer. Importantly, the paragraph contains an implicit assumption that bringing goods into a marketable form or condition need not necessarily form part of the process of manufacture of such goods.' 13 The Commissioner recorded that Chapter 2 ( Glossary of Terms ) of the Explanatory Memorandum to the STEC Act employed the term business inputs , though the Commissioner acknowledged that such a term did not appear in that legislation, and pointed out that the Explanatory Memorandum contained the following: 'Road vehicles of a kind ordinarily used for the transport of persons or the transport or delivery of goods or other property will be excluded from the exemptions for goods for use in mining, primary production, manufacturing, printing and other businesses, unless they are for use exclusively in the exemption user's premises or in going between adjacent premises.' So much was said by the Commissioner to be reflected in the abovementioned Item 2 headed Primary production activities [R] , appearing in Sub-Chapter 1.1 in turn headed Mining and primary production , and also in Item 18 headed Manufacture-related activities [R] , appearing in Sub-Chapter 1.2 in turn headed Manufacturing and industrial etc . Lindsay drew attention to the exclusion provisions of subItem (3) appearing in the context of Item 18, in so far as the same is picked up by reference in Item 36 headed Subcontractors appearing in Sub-Chapter 1.5 headed Miscellaneous . I will return shortly to the critical operation of Item 36 in relation to the circumstances postulated by Lindsay as allegedly produced of the operation of Item 36 critically (and solely) in its favour. 14 It will have been noticed that each of the headings to Items 2 and 18 bore the insignia [R] at all material times, in relation to which s 9 of the STEC Act stipulated as follows: '9 Certain exemption Items available only to registered persons Goods are not covered by an exemption Item marked [R] unless the exemption user is a registered person at the time specified in the Table in section 5.' Lindsay was not a registered person at any material time, being a matter upon which the Commissioner placed reliance, but as I have already foreshadowed, Lindsay's case at least on the appeal was confined to the operation of Item 36 upon the footing of its inclusion of reference relevantly and specifically to Item 18, and upon the further basis that unlike Item 18, the heading to Item 36 was not prefixed [R]. It was that critical circumstance of legislative drafting which Lindsay contended to have been overlooked or misunderstood by the Tribunal. 59 The Commissioner sought assistance also from State Electricity Commission , from which I have cited earlier the passage at [24] of the reasons for decision thereof concerning the operation generally of paras (a), (b) and (c) of Item 18(5). In that case, the Electricity Commissioner as taxpayer used transformers in its business to convert voltage and current so that it could be generated for domestic or industrial consumption, and it sought declaratory relief to the effect that a manufacture-related activity was involved by its use of transformers thus to apply a process or treatment within the scope of the subject subItem 18(5) expression. A Full Federal Court (Heerey Carr and Merkel JJ) held that neither of pars (a), (b) or (c) of subItem 18(5) applied in favour of the Commission. In relation to par (c), being that the subject of particular focus in the present dispute, all members of the Full Court agreed that electricity and electrical power constituted goods within Item 18(5)(c). At 30, at [28], of the reasons for joint judgment of Heerey and Merkel JJ, the following further appears: 'In the context of the Exemptions Act, and in particular Item 18, the tangible "goods" brought into existence for sale in the present case is electrical energy. Energy is a function of power over time. That is the "Commodit[y] of commerce"... which is bought and sold. The commodity is electrical energy, rather than electric current having a particular voltage. On this view, a change in current or voltage does not result in the manufacture or production of a different commodity or different goods.' Those circumstances are materially removed from the circumstances of this present litigation. 60 The perishable goods in the form of foodstuffs here involved are to be apparently marketed by or on behalf of a manufacturer of the goods , each of them being a primary producer or manufacturer of the goods , or in relation to whom the goods are wholesaler's-materials goods within the s 3 definition of that expression , or otherwise are within the par (c)(iii) description of qualifying goods within in turn the s 3 definition of that further expression. Lindsay submitted that in the present context therefore, a 'process or treatment to goods' , which has the purpose of bringing goods into and keeping goods in a marketable or usable condition, within the purport of subItem 18(5)(c), need not involve a change in the form, nature or condition of the goods the subject of scrutiny. Lindsay contended rather that it is enough that some action is applied to the goods which results in preserving their marketability or usability in the hands of the manufacturer of the goods, and additionally as here its transportation consignee Lindsay.


case_outcome: cited

case_title: Commissioner of Taxation v Reynolds Australia Alumina Ltd (1986) 18 FCR 29

case_text: In the determination of the issues of construction arising on the appeal, being issues on Lindsay's case related to the operation at least ultimately of Item 36 headed Subcontractors , it was submitted by Lindsay that a broad and beneficial approach is appropriate. I was referred in that regard to the Full Court decision in Commissioner of Taxation v Reynolds Australia Alumina Ltd and others (1986) 18 FCR 29, where Burchett J observed generally at 46, in relation to the then Item 14 and the then definition of aids to manufacture of the precursor to the present STEC Act, that 'the beneficial purpose of the legislation with which this appeal is concerned is as apparent as was that of Div 10 in the cases to which I have referred '. That case involved the exemption or otherwise of sales tax in relation to a conveyor in operation from a mine to a refinery, and in particular whether (to cite the description of Beaumont J at 35) that conveyor should be seen as 'something ancillary to the activities at the mine site and therefore part of the mining operations...'. In that latter regard his Honour expressed the need for appraisal of the character of a conveyor by the adoption of a broad perspective. Earlier in relation to an issue involving modifications appearing in the Third Schedule to that precursor legislation, Olney J (sitting as a single justice) in Commissioner of Taxation v Sherwood Overseas Pty Ltd (1985) 75 FLR 474 at 479 spoke of the need for 'a robust approach... to be taken to the construction of the Third Schedule, particularly in view of the fact that it is part of a statute imposing taxation... '. That latter dictum was subsequently cited with approval by Hope JA in Federal Commissioner of Taxation v Kentucky Fried Chicken Pty Ltd (1988) 12 NSWLR 643 at 654, in a context also of sales tax, and where his Honour observed that '[s]ales tax legislation is not intended to stultify trade and commerce but is intended to produce revenue for the government from trade or commerce'. More recently in Dick Smith Electronics Pty Ltd v Federal Commissioner of Taxation 97 ATC 5089 at 5094, Carr J (with whose reasons Foster and Tamberlin JJ agreed) endorsed what he termed the need for a 'somewhat robust approach to the problem [as] appropriate in sales tax cases' , and Tamberlin J (at 5096) added that 'a presumption... should be given [to] the most natural and ordinary meaning which is appropriate in the circumstances'. In that latter regard, his Honour referred to the High Court's decision in Downland Publications Ltd v Deputy Commissioner of Taxation (1983) 57 ALJR 286, where at 288, Gibbs CJ (with the concurrence of the other four members of the High Court) spoke of the need, in the context of construing an Item of the then sales tax legislation, '... to look at its form, its contents and its use', and endorsed earlier dictum of Stephen J Rotary Offset Press Pty Ltd v Deputy Federal Commissioner of Taxation (1972) 46 ALJR 609 that 'the test properly is one of popular usage and... that the matter is entirely a question of fact to be decided upon an inspection of the document guided by common knowledge'. The Full Court decision in Dick Smith related incidentally to the present sales tax exemption legislation.


case_title: Commissioner of Taxation v Sherwood Overseas Pty Ltd (1985) 75 FLR 474


case_title: Federal Commissioner of Taxation v Kentucky Fried Chicken Pty Ltd (1988) 12 NSWLR 643


case_outcome: considered

case_title: Dick Smith Electronics Pty Ltd v Federal Commissioner of Taxation 97 ATC 5089


case_title: Downland Publications Ltd v Deputy Commissioner of Taxation (1983) 57 ALJR 286


case_title: Rotary Offset Press Pty Ltd v Deputy Federal Commissioner of Taxation (1972) 46 ALJR 609


case_text: Further as to Lindsay's case as to non-fulfilment of the statutory description of general-purpose road vehicle , the Commissioner drew attention nevertheless to dicta of the Full Court of the Supreme Court of Victoria in ICI Australia Operations Pty Ltd v Deputy Commissioner of Taxation (1987) 87 ATC 5110, where at 5112, Gray J (with whom Kaye J agreed) said: 'The test for inclusion in this category is that one can stipulate that the primary purpose of the vehicle and its customary use is to transport goods or persons in the course of commercial activity. In applying this test, the concept of "ordinarily used for" equals "whose primary but not necessarily exclusive purpose and customary use is". I say that because in my view the expression "ordinarily used" in the present context cannot be divorced from the concept of the primary purpose for which the vehicle is intended to be used and is in fact customarily used.' The Commissioner submitted on that footing that the expression general-purpose road vehicle is sufficiently wide as to connote any type of vehicle which travels on the road, provided it is used for the transport of persons or goods, irrespective of the vehicle not being capable of self-propulsion. Even if that be so, which in my opinion must be at least doubtful, the submission does not at least readily accommodate the statutory notion of a kind ordinarily used . A consideration of each of the descriptions of the relevant goods of Lindsay, at least when addressed individually, does not satisfactorily fulfil the ordinary or usual notion of vehicle, for instance as appearing in the Oxford and Macquarie dictionaries, nor that of road vehicle , so far as concerns the refrigeration unit and the rigid body in particular. The reefer is however at least more debateable as it potentially falls within the Macquarie Dictionary (Revised Third Edition) definition of vehicle as a 'carriage on wheels'. 21 The earlier foreshadowed s 13 of the STEC Act, which is headed Lower level operation of excluded property, and upon which the Commissioner placed reliance, provides as follows (so far as is material): '(1) In deciding whether exemption Item... 18... 36... applies, the exemption user cannot rely on: (a) the use of the exemption goods, so far as the use relates directly to: (i) excluded property; or ... (b) the use of other property so far as its use relates directly to: (i) excluded property; ... (2) In this section: excluded property means property that is expressly excluded from the exemption Item concerned....', ... The exceptions or non-inclusions thereafter set out refer to Items not here material. 22 The note to Item 36, which I have earlier substantially reproduced, makes reference of course to s 13 of the STEC Act which is not readily comprehensible in its scope of application, addressing as it does exemptions or exclusions from excluded property. Before addressing s 13, I should perhaps observe that at least no aspects of the so-called generally-excluded property , as exemplified in subss 12(2) and (3) of the STEC Act, are here relevant, referring as the same respectively do to 'motor vehicles covered by Item 1 in Schedule 5 (other than vehicles known as four-wheel drive vehicles)' or '[p]roperty... for use mainly for or in connection with the preparation or preservation of food or drink for human consumption, if the preparation or preservation takes place in: (i) a retail or catering establishment; or (ii) premises that are occupied in connection with a retail or catering establishment;...' Section 12 may therefore be put aside. 53 On the appeal in Hamersley Iron , Lush J (with whom Kaye J agreed) said at 607: 'The goods, so identified, are shown by the evidence to have been subjected to a desired change. If a chemical change is sought, the change wrought in the goods is a reduction of variability in the concentration of chemicals throughout the ore. If a change in form, nature or condition is sought, then the goods have been changed in such a way that, if they have not been made marketable, they have at least been made marketable to the better advantage of both seller and buyer. In a word, the change in the goods justifies the application of the word treatment to the mode of producing the change. If it be necessary, it should be held that in the context of item 14 chemical change is not of the essence of treatment.' And further at 607: 'Even if the decision on the meaning of "treatment" and the concept of what are the goods be rejected, the individual fragments of mineral are "processed" by the blending because they are, intentionally and usefully, re-arranged vis-à-vis one another.... The Commissioner contended that a change in form or nature of the goods was required, but that is inconsistent with [certain English authority decided in 1957]..., and can be regarded as consistent with such cases as [certain further English authority decided in 1956 and 1966] only if goods the subject of the operation are regarded as a general mass of useful goods together with dirt, waste or impurities, and not the separate individual pieces intended for delivery or sale.' Establishing and maintaining a requisite low temperature to foodstuffs, in order to preserve marketability, would seemingly satisfy the present Schedule 1 (ie Item 18(5)(c)) notions above addressed in those authoritative descriptions.


case_outcome: referred to

case_text: Section 5 of the STEC Act stipulates by subsection (1) that '[s]ome exemption Items require the exemption goods to be used in a particular way or by a particular person' , and in the Table thereafter set out in that section headed Use requirements for Schedule 1 , there appears ( inter alia ) under the column heading Use requirement that the ground for quoting must be the 'intended use by the quoter [maintained] during the whole of the statutory period' . The Commissioner pointed out uncontroversially that the operation of the statutory period in the subject circumstances was required by that Table to start at the time when the goods are first applied to a person's own use in Australia (the latter expression reflecting what I have earlier identified as the statutory abbreviation AOU ), and to end 2 years after the time of that first application to the person's own use. However the Commissioner contended controversially that '[i]t is to be inferred from the objective character of the relevant goods that it was [Lindsay's] intention at the time of purchase [thereof] to use the goods as part of or in conjunction with the road vehicles it used in its business of freight transport', being an intention 'borne out by the actual subsequent use made of the goods'. I was referred in that regard to the opinion expressed by Hill J in Davis v Deputy Federal Commissioner of Taxation 2000 ATC 4201 to the effect that the best evidence of purpose will ordinarily be found in the use to which the goods are in fact put by the taxpayer, a principle the applicability whereof was common ground. However that assertion of the Commissioner as to Lindsay's intention understated Lindsay's reasons for purchasing the relevant goods, namely the critical objective of maintaining the temperature, and thereby the condition, of perishable goods in transit. 31 It is appropriate at this point of recording the respective principal submissions of the parties to revert to the threshold theme of the Commissioner's case in relation to the definition contained in s 3(2) of the STEC Act of a general-purpose road vehicle, and the qualified exclusion by subsection (3) of each of Items 2 and 18 of a general-purpose road vehicle , subject to exceptions not here material. The Commissioner's contention was that the words road vehicle are '... alone... sufficiently wide to connote any type of vehicle which travels on the road provided it is used for the transport of persons or goods'. As will be seen, however, more is required to render that broad contention wholly supportable by the provisions of Schedule 1 falling for consideration in the present context . The expression 'any type of vehicle' is too imprecise as such in the context of the complexity of the STEC Act and Schedule 1 thereto. 32 The Commissioner drew further attention nevertheless to the following non-inclusive definition of parts further appearing in s 3(2) of the STEC Act: 'parts, in relation to road vehicles, includes: (a) bodies for those road vehicles (including insulated bodies, tank-bodies, and other bodies designed for the transport or delivery of goods or other property of particular kinds); (b) underbody hoists, and other equipment or apparatus of a kind ordinarily fitted to road vehicles for use in connection with the transport or delivery of goods or other property by those road vehicles.' The Commissioner emphasised in particular the words 'insulated bodies' and 'apparatus of a kind fitted to road vehicles for use in connection with the transport or delivery of goods... by those road vehicles', asserting that the same would cover the refrigeration unit. Whether however the definition extended to the rigid body or the reefer was not seemingly the subject of specific submission by the Commissioner.


case_text: The first basis was that it was unnecessary to adduce evidence to the effect that it is critical to refrigerate temperature-sensitive goods in the course of being transported; so much was described by Lindsay as 'so generally known that every ordinary person may be reasonably presumed to be aware of it'. In my opinion that first asserted basis is soundly conceived on Lindsay's part. I was referred in that regard to the evidentiary principle enunciated in Holland v Jones [1917] HCA 26 ; (1917) 23 CLR 149 at 153, where Isaacs J (with whose reasons Barton ACJ concurred) said as follows: 'The basic essential is that the fact is to be of a class that is so generally known as to give rise to the presumption that all persons are aware of it. This excludes from the operation of judicial notice what are not "general" but "particular" facts... . To import knowledge of a particular fact in issue would be to import evidence in the strict sense regarding a matter as to which the Court is supposed to have no knowledge whatever of its own.' More recently in Woods v Multi-Sport Holdings Pty Limited [2002] HCA 9 ; (2002) 208 CLR 460, McHugh J reviewed the doctrine of judicial notice generally at 478-481, at [64]-[70], of his reasons for judgment, and in so doing cited the above dictum of Isaacs J at 478, at [64], in particular. Under the heading 'Notorious facts judicially noticed without injury' at 479, at [66], his Honour exemplified the following as '[f]acts that have been judicially noticed without inquiry..., (namely) that cancer is a major health problem in the community and, despite research, little progress has been made in controlling it; that HIV is a life-endangering disease; that a child victim of sexual assault may be reluctant to resist, protest or complain about the sexual assault, due to fear of punishment or rejection; and that many lawyers now charge hundreds of dollars an hour for their services, that legal aid is often unavailable to litigants in tort cases and that the cost of those services is substantially increased when lawyers cannot give advice to their clients because the law is unpredictable'.


case_title: Woods v Multi-Sport Holdings Pty Limited [2002] HCA 9 ; (2002) 208 CLR 460


case_text: Lindsay drew attention furthermore to what was described as the leading authority on the meaning of the combined expression process or treatment, as appears in the context of sub-paragraph (a)(iii) of the definition of 'aids to manufacture' contained in the legislative precursor to the STEC Act, being the Sales Tax (Exemptions and Classifications) Act 1935 (Cth), the words process or treatment appearing of course in each of pars (a), (b) and (c) of the Item 18(5) definition of manufacture-related activity. That authority is Federal Commissioner of Taxation v Hamersley Iron Pty Ltd (1981) 33 ALR 251, which was decided by the Supreme Court of Victoria (Gobbo J) at first instance, and which decision was upheld on appeal to a Full Court (Lush, Kaye and Brooking JJ) (1981) 37 ALR 595. At first instance, Gobbo J reviewed (at 268) dictionary meanings of processing and treatment , as follows: 'Turning first to the meaning of "processing or treatment", there is nothing in the context of Item 113C to suggest that the ordinary meaning of treatment found for Item 14 should not be adopted. Treatment was there taken to mean the act of subjecting to chemical or physical action so as to bring about a change in form nature or condition. I further found that in its context such treatment had to be directed to a relevant result, namely to use or marketability. As to processing this in my view should in its context in Item 113C and Reg 4 be taken to have a different and probably wider meaning than treatment.... These meanings all suggest that a change in nature form or condition is effected. I am disposed to the view that even in processing some change must result if this procedure is to be regarded as a process.' Lindsay drew attention in particular to 'subjecting to... physical action... [and] condition' , and also to 'use or marketability', appearing above, being expressions reflected explicitly or implicitly in Item 18(5)(a) to (c) within the definition of manufacture-related activity . After referring to Davies Coop and Company Limited v Federal Commissioner of Taxation [1947] HCA 64 ; (1948) 77 CLR 299, Gobbo J observed at 269 in Hamersley Iron that authority 'supports a meaning of processing that does not require that there be a change producing a commercially distinct article...', and his Honour referred to recent English authority which had 'adopted the view... that alteration of the material was not necessary to involve subjecting it to a process'. That submission was soundly conceived.


case_title: Federal Commissioner of Taxation v Hamersley Iron Pty Ltd (Full Court) (1981) 37 ALR 595


case_text: Lindsay drew attention furthermore to what was described as the leading authority on the meaning of the combined expression process or treatment, as appears in the context of sub-paragraph (a)(iii) of the definition of 'aids to manufacture' contained in the legislative precursor to the STEC Act, being the Sales Tax (Exemptions and Classifications) Act 1935 (Cth), the words process or treatment appearing of course in each of pars (a), (b) and (c) of the Item 18(5) definition of manufacture-related activity. That authority is Federal Commissioner of Taxation v Hamersley Iron Pty Ltd (1981) 33 ALR 251, which was decided by the Supreme Court of Victoria (Gobbo J) at first instance, and which decision was upheld on appeal to a Full Court (Lush, Kaye and Brooking JJ) (1981) 37 ALR 595. At first instance, Gobbo J reviewed (at 268) dictionary meanings of processing and treatment , as follows: 'Turning first to the meaning of "processing or treatment", there is nothing in the context of Item 113C to suggest that the ordinary meaning of treatment found for Item 14 should not be adopted. Treatment was there taken to mean the act of subjecting to chemical or physical action so as to bring about a change in form nature or condition. I further found that in its context such treatment had to be directed to a relevant result, namely to use or marketability. As to processing this in my view should in its context in Item 113C and Reg 4 be taken to have a different and probably wider meaning than treatment.... These meanings all suggest that a change in nature form or condition is effected. I am disposed to the view that even in processing some change must result if this procedure is to be regarded as a process.' Lindsay drew attention in particular to 'subjecting to... physical action... [and] condition' , and also to 'use or marketability', appearing above, being expressions reflected explicitly or implicitly in Item 18(5)(a) to (c) within the definition of manufacture-related activity . After referring to Davies Coop and Company Limited v Federal Commissioner of Taxation [1947] HCA 64 ; (1948) 77 CLR 299, Gobbo J observed at 269 in Hamersley Iron that authority 'supports a meaning of processing that does not require that there be a change producing a commercially distinct article...', and his Honour referred to recent English authority which had 'adopted the view... that alteration of the material was not necessary to involve subjecting it to a process'. That submission was soundly conceived. 57 The Commissioner submitted however that the reasons for decision in Hamersley Iron at first instance and on appeal did not support Lindsay's case, upon the basis that '[r]efrigeration is not a chemical change, and it is doubtful whether it would be regarded as a physical action on the goods of the sort contemplated by the definition of a manufacture-related activity within subItem 5(5)'. The difficulty for the Commissioner is that even if a chemical change is not effected by refrigeration, refrigeration must at least involve physical action. Lindsay pointed out that in Hamersley Iron, '[t]he stacker and reclaimer were machines which physically stacked, and then physically blended the iron ore to ensure homogeneity', which the Commissioner appeared to accept was sufficient to enable the Court to conclude that a process or treatment was involved. However the Commissioner contended further that 'the mere cooling of goods during transport is qualitatively different from the process under consideration in Davies ', because there the winding of the yarn onto the cones and tubes was described as 'part of the process of bringing the ultimate product, namely the piece goods, into a form or condition in which they could be marketed' . The difficulty for the Commissioner flowing from any comparison of the factual circumstances in Hamersley Iron , and also in Davies , is that whilst the physical outcome of the process or treatment might be described in each case as more significant in terms of process and extent of change, the STEC notion of applying a process or treatment of goods appearing in the Item 18(5) definition of manufacture-related activity would clearly enough accommodate situations of varying degree, depending upon the nature and extent of the process or treatment the subject of application. I have not found the Commissioner's endeavours to distinguish the circumstances in Hamersley Iron (or Davies for that matter) from the present to be persuasive.


case_outcome: distinguished

case_title: Deputy Commissioner of Taxation v Australian Safeway Stores Pty Ltd 85 ATC 4276

case_text: The Commissioner sought to demonstrate, contrary to Lindsay's submissions, that the subItem 18(5) notion of process or treatment did not extend further to Lindsay's advantage, once comparison was made to the circumstances in Deputy Federal Commissioner of Taxation v Australian Safeway Stores Pty Ltd 85 ATC 4276 (Gray J), and on appeal in 86 ATC 4406 (Crockett King and Beach JJ). The Supreme Court of Victoria there held that a machine which weighed, priced and labelled trays of meat in plastic bags could not be viewed as manufacture , and hence that the weighing machine was not an aid to manufacture . However I am unable to discern sufficient analogy between the circumstances the subject of that latter authority and those circumstances here postulated by Lindsay. 55 Lindsay emphasised moreover that the dicta in Hamersley Iron ( ante ) occurred in the context of determining whether certain stacking equipment was used in a process or treatment for the purpose of bringing goods into a marketable or usable condition within at least subItem 18(5)(c), that is to say, in order to put the iron ore as mined into a blended and stored condition ready for shipping. SubItem 18(5) being said by Lindsay to be analogous to Item 14 of the schedule to the precursor exemption legislation to the STEC Act. Lindsay further contended that the foregoing dicta in Hamersley Iron occurred in the further context of determining whether there was at any material time a change in the form, nature or condition of the goods. In that respect, Lindsay asserted that goods cannot be maintained and changed at the same time. Lindsay submitted therefore that on the tests stated in Hamersley Iron to the extent I have recorded, where incidentally the exemption related in part to '... apparatus... for use in the mining industry in carrying out mining operations and in the treatment of the products of those operations', no change in form, nature or condition of the goods is required. The description treatment appears of course throughout each of the definitions of manufacture-related activity appearing in subItem 18(5). The foregoing was described by Lindsay as an established conclusion, fortified by the statutory language having implicitly incorporated the notion of 'keep[ing] the goods refrigerated', as postulated by Mr Cooper in his expert evidence. Lindsay submitted therefore that by prescribing a sales tax exemption for equipment used in applying a process or treatment for the purpose of keeping goods in a marketable or usable condition, the Legislature did not require that any change in form, nature or condition must necessarily occur. 56 That thesis was said by Lindsay to be supported by the example given in the STEC Act, by way of footnote to par (c) of the definition of manufacturer-related activity appearing in the context to subItem 18(5) which I have earlier extracted, and which reads '... applying a coating of grease to manufactured hand tools to prevent corrosion' . It was said by Lindsay, rightly in my opinion, that the application of a coating of grease to a hand tool would not bring about any change in the form, nature or condition of the hand tool, but rather would serve to keep the hand tool in the condition in which it would be appropriately marketed by the manufacturer.


case_title: ICI Chemicals & Polymers Ltd v The Lubrizol Corporation Inc [2000] FCA 1349 ; (2000) 106 FCR 214

case_text: Lindsay further drew attention to the notion of process appearing in subItem 18(5)(c) as an aspect of the definition of manufacture-related activity, being a notion addressed in the patent case of ICI Chemicals & Polymers Ltd v Lubrizol Corporation Inc [2000] FCA 1349 ; (2000) 106 FCR 214. The relevant subItem 18(5) expression is of course that of process or treatment to goods , being words of wide import and operation. In the reasons for joint judgment of the Full Court (Lee, Heerey and Lehane JJ) at [7], the following appears, upon which Lindsay placed reliance by way of illustration and analogy: 'Refrigeration involves a transfer of heat. A refrigerant is contained within what is described as a refrigeration loop. Liquid refrigerant, under pressure, is released into an evaporator, where, now under low pressure, it boils, absorbing heat from the space to be refrigerated. In the course of that process, the liquid refrigerant is entirely evaporated. It is drawn into a compressor in which it is both compressed and further heated. Thence it passes through tubing to a condenser. There, still under pressure, it loses heat through the walls of the condenser, condensing into liquid. It is then piped once more to the evaporator. The process continues so long as the compressor operates. In general terms, that is the way in which both refrigerators, domestic and industrial, and air conditioning systems (including those installed in motor vehicles) work.' The Commissioner's response was that the foregoing dicta was of no assistance to Lindsay, emanating as it did from 'a different statutory and factual context', and moreover that ICI Chemicals referred to 'refrigeration abstractly as a process or treatment to goods, and cannot assist in determining whether the process concerned was a manufacture related activity process'. I have not found that response on the Commissioner's part to be persuasive, and such as to reflect any distinction relevantly of the authorities cited by Lindsay and identified above by way of illustration. Refrigeration does involve to my mind, both conceptually and realistically, a process or treatment by way of transfer of heat of temperature (as probably reflected in ICI Chemicals above), and I therefore am of the opinion that the analogy advanced by Lindsay was soundly or sufficiently conceived.


case_title: The Queensland Cement and Lime Co Ltd v Deputy Federal Commissioner of Taxation (1986) 86 ATC 4771

case_text: So much was contended by Lindsay moreover to be no different in principle, materially or relevantly, from the process or treatment involved in maintaining the slurry in Queensland Cement & Lime Co Ltd v Deputy Federal Commissioner of Taxation (1986) 86 ATC 4771, being a decision of the Supreme Court of Queensland, in which the following views were expressed by de Jersey J (at 4773), albeit in the context of the 1935 precursor to the STEC Act: 'I should add, with regard to a submission made on behalf of the defendant, that it would in my view be artificial to regard the conversion of limestone power to slurry, and the transporting of that slurry to Fisherman's Landing, as standing apart from the process of manufacture of the clinker. This is, of course, apart from what I have already referred to as a concession on the pleadings. As I have indicated, fairly read, the material before me suggests one continuous process of manufacture, commencing at the latest with the grinding of the limestone... ... I should also record my view that the pumps were for use in the "processing or treatment" of the slurry. The defendant's submission appeared to me to involve the views first, that the transporting through the pipes was not part of the overall manufacturing process (the matter with which I have just dealt), and second, that the primary and principal use of the pumps was not in the "processing or treatment" of the slurry being confined to its transportation to Fisherman's Landing. In my opinion, the use of the pumps to move the slurry through the pipes, and manage it at homogeneous and therefore usable consistency, did involve their use in the processing or treatment of the slurry. Clearly such use was and is the "primary and principal" use of the pumps.' 62 The Commissioner asserted that there was a difference in the present factual context between 'maintaining the slurry' and Lindsay's 'activity of refrigeration', both being descriptions framed by the Commissioner, and sought to rely on the following passage earlier in the reasons of de Jersey J also at 4773: '... more than mere transportation is involved: the pumps continue the mixing process necessary for manufacture of the clinker by ensuring the homogeneity of the mixture delivered at Fisherman's Landing...' . Of course Lindsay disputed that any such notion of mere transportation was here involved, which I think to be correct as an evidentiary proposition, and significantly to my mind, the Commissioner nevertheless acknowledged that Queensland Cement and Lime constituted 'a further example of a process falling within the continuum of manufacture'. Of course, issues of the kind here arising fall ultimately to be determined having regard to their own circumstances, as well as of course in the light of legislative stipulations of sufficient operation. 63 The Commissioner further submitted that Lindsay '... only contracted to provide freight services between two points and on any view it did not have any subjective or objective purpose to manufacture goods', and that 'its purpose in carrying out the activity of refrigeration was extraneous to any purpose warranted or contemplated under subItem 18(5)(c) that was directed to a manufacture related activity'. So much seemingly boiled down to perhaps the essence of the Commissioner's case, and was of course disputed by Lindsay as not addressing the substance of Lindsay's case founded on subItem 18(5)(c), for reasons which I have generally as well as specifically outlined already at some length. The Commissioner further asserted that '... there is no evidence as to whether the goods once unloaded, remained at the temperature of the insulated bodies or were returned to room temperature, when for example, they are placed on display in a Woolworth's store'. That latter contention hardly bore upon the significance or otherwise of the condition in which Lindsay was required to deliver the transported foodstuffs etc to their appointed destination, and in any event was not only speculative but seemingly at odds with the thrust of Lindsay's extensive evidence.


case_text: It was therefore submitted by Lindsay that the evidence, which I have sought thus far to summarise, sufficiently established that its refrigeration unit was used in conjunction with the reefer or rigid body (all three of course together comprising the relevant goods the subject of the proceedings) in order to control the environment in which a manufacturer's temperature-sensitive goods were to be held and maintained in the course of transit, and in order thereby to prevent those goods from spoiling or perishing and to maintain their marketable condition for the benefit of the manufacturer or other principal involved. So much was described by Lindsay as reflective of 'a paradigm case illustrating the purpose which subItem 18(5)(c) was intended to serve'. In any event, so Lindsay's submissions continued, if contrary to that submission, the subItem 18(5)(c) notion of 'process or treatment to goods for the purpose of bringing them into, or keeping them in, the form or condition in which they are to be marketed or used by a person' does require change to occur in order for goods to be subjected to a process or treatment , the in transit refrigeration process applied by Lindsay did involve a physical change to the goods subjected thereto, being a change from that prevailing at the time prior to any process or treatment by way of establishment of the requisite degree of coolness in relation to the goods. I was referred in that regard, by way of purportedly analogous exemplification, to a decision of the Supreme Court of Tasmania in Ranicar v Frigmobile Pty Ltd and Royal Insurance Australia Ltd (1983) TasR 113, where Green CJ said as follows (at 117): 'The question which remains is whether in the circumstances of this case that change in temperature amounted to damage in the scallops. In my view, it plainly did. An alteration in temperature undeniably involves a physical change to a substance and in this case that change had the effect of removing one of the primary qualities which the scallop had their exportability. As a result, it is plain that their usefulness was impaired and their value reduced. That is not to say, of course, that in every case a change in temperature would amount to damage. It would depend upon the circumstances and the nature of the goods.' Reliance was placed by Lindsay in particular upon the implications there stated of '[a]n alteration in temperature [involving] a physical change to a substance' . The Commissioner rejoined that when a supermarket places frozen chickens in its freezer, it could not be said that it was thereby engaging in part of a manufacturing process', but the analogy is hardly compelling. Either way, arguments by way of analogy so often carry at least marginal difficulty, but I do not think that the dictum in Ranicar can be so radically rejected merely by the analogy proffered by the Commissioner.


case_text: For completeness, I should further record that attention was also drawn to Federal Commissioner of Taxation v Rochester [1934] HCA 17 ; (1934) 50 CLR 225, which related to precursor sales tax legislation, and where it was held that by preparing and cooking fish and chips, the defendant taxpayer had neither produced nor manufactured goods. In that earlier statutory context, manufacture was defined non-exclusively to include 'production and also the combination of parts or ingredients,... except such combination as... is customary or reasonably practical for users or customers of those articles or substances to undertake' . The statutory formula there prevailing is somewhat removed from the notion of applying a process or treatment to goods formulated in subItem 18(5). Each case must of course be considered in the light of its contextual circumstances, and that the retail example derived from Rochester was conceptually removed to my mind from that here subject to consideration. 66 Lindsay submitted in summary in relation to the Item 36 issue as follows: (i) the relevant goods were used mainly (being of course the Item 18(1) expression) in refrigerating temperature-sensitive goods; (ii) refrigeration is a process or treatment which was applied to temperature-sensitive goods ( process or treatment to goods being an element in each of pars (a), (b) and (c) of the subItem 18(5) meaning of manufacture-related activity ); and (iii) the refrigeration was 'for the purpose of... keeping [temperature-sensitive goods] in the form or condition in which they [were] to be marketed [or otherwise] used by... the... manufacturer of the goods', within the scope of subItem 18(5)(c). 67 Upon that footing it was concluded by Lindsay that the relevant goods were each used by Lindsay 'mainly in carrying out... a manufacture-related activity... in the course of a business' within subItem 18(1)(a) of Schedule 1 to the STEC Act, and thus involved the 'use [of] [g]oods... mainly in carrying out one or more activities described in subItem (1) of exemption Item 18... on behalf of one or more other persons (the principals)...' within subItem 36(1) of Schedule 1. As a consequence, so Lindsay further submitted, the goods qualified for sales tax exemption under subItem 36(1), provided that the condition in Item 36(2), which relates to 'use by the principal concerned mainly in carrying out the countable activity at the place at which the activity is to be carried out by the exemption user...' was satisfied. In that regard, it was Lindsay's case that subItem 36(2) 'will be satisfied as long as the relevant goods (or any of them) would be covered by subItem 18(1) and if the applicant's principals used the goods [ mainly ] in carrying out the same [ countable ] activities for instance the subject of Item 18, and further that 'the relevant goods will be covered by subItem 18(1) unless they are excluded either as a general-purpose road vehicle by subItem 18(3)(b) or by section 13 of the STEC Act'. I have of course earlier reproduced s 13, which is headed Lower level operation of excluded property. Item 36(1) requires for its operation that '... either the condition in subitem (2) of this Item or the conditions in subitem (3) of this Item must be met for each activity (countable activity) that is relied on to establish that this subitem applies' , and in the present circumstances, subItem 36(2) uses the more conceptually apposite expression place , and subItem 36(3) uses the perhaps less apposite expression premises . 68 The issues falling for resolution are of course complex, in relation to which both parties provided comprehensive written submissions by way of analysis of the legislation, judicial authority and the evidence tendered to the Tribunal below. In the course of presentation of the respective cases of the parties to the Federal Court, Lindsay appears to have chartered additions and modifications at least of detail to its case presented to the Tribunal below, a course which is perhaps understandable given the complexity and detail of the prospectively or conceivably relevant provisions of the STEC Act, and in particular of the extensive Schedule 1 thereto. In the context of a statutory appeal by way of review of administrative decision-making, an appellant tends to take the opportunity to vary, modify or refine the emphasis and scope of its case conducted earlier at first instance in an administrative tribunal below, and I think that the present application by way of statutory appeal has adopted that course to some extent. 69 Lindsay's contextual foundation for the relief invoked on the present appeal was of course its operations of road haulage and freight transportation which were undertaken as a subcontractor for principals whose business operations involved the production of fresh primary products, and the subsequent merchandising thereof at distant markets in that condition. In relation to the first of the five issues tendered by Lindsay for resolution on the appeal (being the issues set out in [5] of these reasons for judgment), Item 36 of Schedule 1 to the STEC Act was primarily invoked by Lindsay, and so invoked in its capacity as a transport subcontractor of those primary products. It was in relation to its capacity as a haulage subcontractor that Lindsay has sought to establish its fiscal status as an exemption user under the STEC Act, and hence within the scope more specifically of its activities in relation to exemption Items the subject of Schedule 1 to the STEC Act, and to do so in particular in respect of a countable activity within the scope of Item 36 headed Subcontractors .


case_text: The urgency of the circumstances may limit the period in which a person may have a right to be heard: see Alfred Thangarajah Durayappah v W J Fernando and Others [1967] 2 AC 337 at 346; see also Re Refugee Tribunal and Another; Ex parte Aala [2000] HCA 57 ; (2000) 176 ALR 219 at [60] . The period in which to show cause provided in the Notice was short. However, the operation of the Mutitjulu community was in a state of crisis, and had been so since 1 July 2006. Accordingly I consider that in these circumstances the period prescribed was reasonable. Even if such period of notice were not regarded as reasonable, the Court would not grant the relief sought in view of the urgency and exceptional circumstances surrounding the need for an administrator's appointment.


case_text: Mutitjulu further submits that the Registrar was subconsciously motivated to issue the Notice based upon untested information supplied to it by FaCSIA: see Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2005] HCA 72 ; 222 ALR 411 at [19] . Mutitjulu submits that the Registrar, prior to the issue of the Notice, was bound to put the allegations made by FaCSIA to Mutitjulu as being ' credible, relevant and significant ' information, and to obtain a response from Mutitjulu prior to the issue of the Notice. 44 In VEAL the Court was concerned with the failure of the Tribunal to inform the appellant of the existence of a letter which could have influenced the decision which it was required to make. In Kioa and Others v West and Another [1985] HCA 81 ; (1985) 159 CLR 550, the Court determined that the decision-maker was required to provide an opportunity to a party to respond to information which was adverse to the interests of that party, and which the decision maker proposes to take into account in making the decision (at 628). 45 Although generally an opportunity should be given to a party whose interests are affected by a decision to deal with adverse information that is ' credible, relevant and significant to the decision to be made ' (see Kioa v West at 629), the allegations influencing the decision of FaCSIA was not information which was credible, relevant and significant to the decision of the Registrar to appoint an administrator. That information ' can and should be put aside from consideration by the decision-maker as not, credible, not relevant, or of little or no significance to the decision to be made.' (see VEAL at [17]).


case_text: Mutitjulu submits that the Notice was unreasonable in the Wednesbury sense (see: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223) or that it was otherwise procedurally unfair because only one day was allowed for a response. 42 Mutitjulu submits that prior to the issue of the Notice, the Registrar was bound to satisfy herself that adequate grounds existed to warrant the issue of the Notice. Mutitjulu submits that the grounds relied upon by FaCSIA to cease funding to Mutitjulu were based upon unproven allegations that were broadcast in the ' Lateline' program on ABC television which related to alleged unlawful conduct of several persons holding office within the Mutitjulu community. Mutitjulu submits that it was the duty of the Registrar to ascertain whether there was any truth in such allegations. It submits that Mr Armstrong was aware of this possibility when, in a memorandum prepared by him in support of the issue of the Notice he observed: 'Whilst the reply [of Mutitjulu] does raise some interesting points surrounding procedural unfairness by FaCSIA (which is not for ORAC to consider).' 49 In the circumstances it was not unreasonable, in the Wednesbury sense, for the Registrar to issue the Notice. The Wednesbury unreasonableness alleged is of the kind referred to by Weinberg J in Australian Retailers Association and Others v Reserve Bank of Australia [2005] FCA 1707 ; (2005) 148 FCR 446 at 585 [570] where His Honour said: 'Many of the particulars relied upon by the applicants in support of Wednesbury unreasonableness seem to me simply to manifest disagreement on their part with some detail or other of PSB's reasoning. Even if there is substance in some of their points, this does not give rise to reviewable error.' 50 The Registrar had before her information that was ' credible, relevant and significant ' ( Kioa v West , per Brennan J 628-9) namely that funding to the community had ceased; that Mutitjulu was in debt; and that there was no prospect of any income to support the operations of the community unless an administrator was appointed which justified the issue of the Notice. These were relevant considerations for the Registrar. For the reasons specified above I consider that the Registrar's decision was reached ' by a process of logical reasoning ': see Hill v Green [1999] NSWCA 477 ; (1999) 48 NSWLR 161. I therefore reject Mutitjulu's Wednesbury submissions.


case_text: In the circumstances it was not unreasonable, in the Wednesbury sense, for the Registrar to issue the Notice. The Wednesbury unreasonableness alleged is of the kind referred to by Weinberg J in Australian Retailers Association and Others v Reserve Bank of Australia [2005] FCA 1707 ; (2005) 148 FCR 446 at 585 [570] where His Honour said: 'Many of the particulars relied upon by the applicants in support of Wednesbury unreasonableness seem to me simply to manifest disagreement on their part with some detail or other of PSB's reasoning. Even if there is substance in some of their points, this does not give rise to reviewable error.'


case_outcome: followed

case_text: Even if, contrary to the above finding, Mr Andrews did not possess the requisite power for the purpose of the appointment, the circumstances surrounding the appointment were such that the Court would exercise its discretion to decline the relief claimed. Considering the arrangements that may have been made in the intervening period the consequences of deeming the appointment invalid are such as may cause considerable inconvenience. The 'defacto officers' doctrine' was considered by Kirby J in Cassell v The Queen [2000] HCA 8 ; (2000) 201 CLR 189 at [71] in which it was observed that the doctrine was usually invoked to cure an accidental or unintentional lack of authority: see also GJ Coles & Co Ltd and Others v Retail Trade Industrial Tribunal and Others (1987) 7 NSWLR 503 at 525-526. At 527 it was said: 'Whatever is the true account of the origin of the de facto officer rule, its rationale in modern times is the protection which affords the public' Such doctrine would have application with equal force in the present circumstances.


case_title: GJ Coles & Co Ltd and Others v Retail Trade Industrial Tribunal and Others (1987) 7 NSWLR 503


case_text: The Registrar had before her information that was ' credible, relevant and significant ' ( Kioa v West , per Brennan J 628-9) namely that funding to the community had ceased; that Mutitjulu was in debt; and that there was no prospect of any income to support the operations of the community unless an administrator was appointed which justified the issue of the Notice. These were relevant considerations for the Registrar. For the reasons specified above I consider that the Registrar's decision was reached ' by a process of logical reasoning ': see Hill v Green [1999] NSWCA 477 ; (1999) 48 NSWLR 161. I therefore reject Mutitjulu's Wednesbury submissions.


case_text: Mutitjulu claims that the period of notice of one day was unreasonably short. It submits that s 71(1) requires ' a reasonable period ' and that the period allowed was simply too short to satisfy this requirement. Mutitjulu refers to the decision of Stone J in Jamieson v Guri War Ngundagar Aboriginal Corporation [2001] FCA 1104 wherein Her Honour observed that a period of seven days was ' a very short time '. 36 The Registrar was aware, prior to the issue of the Notice, that Mutitjulu's accounts recorded a deficit of $171,595.60, that funding had ceased from 1 July 2006, and that no funds would be available to pay staff or to provide for any of the services necessary for the continued operation of the community. Accordingly, Mutitjulu was unfunded. 37 Despite meetings between FaCSIA and Mutitjulu, no arrangement had been made acceptable to FaCSIA for a resumption of funding in the absence of an administrator. The Registrar was aware that Mutitjulu had been afforded an opportunity to respond to the allegations made against it by FaCSIA and despite Mutitjulu's representations contained in its letter of 11 July 2006 to the Minister, the situation remained unchanged. The letter from Mutitjulu to the Registrar did not offer any plan of action which might have led to a restoration of funding. Accordingly the Registrar was entitled to believe that the funding of Mutitjulu would not be resumed.


case_text: In VEAL the Court was concerned with the failure of the Tribunal to inform the appellant of the existence of a letter which could have influenced the decision which it was required to make. In Kioa and Others v West and Another [1985] HCA 81 ; (1985) 159 CLR 550, the Court determined that the decision-maker was required to provide an opportunity to a party to respond to information which was adverse to the interests of that party, and which the decision maker proposes to take into account in making the decision (at 628). 45 Although generally an opportunity should be given to a party whose interests are affected by a decision to deal with adverse information that is ' credible, relevant and significant to the decision to be made ' (see Kioa v West at 629), the allegations influencing the decision of FaCSIA was not information which was credible, relevant and significant to the decision of the Registrar to appoint an administrator. That information ' can and should be put aside from consideration by the decision-maker as not, credible, not relevant, or of little or no significance to the decision to be made.' (see VEAL at [17]). 46 The ground of failure to take into account a relevant consideration similarly does not arise in this instance as this ground is only established if the decision maker fails to take into account a consideration which he or she is bound to take into account in making the decision: see Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40 ; (1985-1986) 162 CLR 24 at 39; Kioa v West at 630. The Registrar was not obliged to consider the material relied upon by FaCSIA because the Registrar had no power to control FaCSIA's decision making. The Registrar was only concerned with the consequence of the disputed matters between Mutitjulu and FaCSIA, namely that funding had ceased on 30 June 2006 and that Mutitjulu had no source of income from that time. 47 Section 71(2) of the ACA Act provides that the Registrar may appoint an administrator if satisfied that any of the grounds specified in that section have been established. The statute does not require the Registrar to consider matters which were relevant to a separate decision made by FaCSIA. Accordingly the Registrar was not bound to take those matters in to consideration in her decision to appoint an administrator. The impugned allegations are of a kind referred to by Brennan J in Kioa v West where His Honour said at 628: 'Administrative decision making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made' The events which caused FaCSIA to determine that funding should not be continued is not a matter which was relevant and significant to that consideration by the Registrar to appoint the administrator. 48 Further, the Registrar was aware that FaCSIA had provided an opportunity for Mutitjulu to respond and that Mutitjulu had done so. Despite such response, FaCSIA remained unmoved. 50 The Registrar had before her information that was ' credible, relevant and significant ' ( Kioa v West , per Brennan J 628-9) namely that funding to the community had ceased; that Mutitjulu was in debt; and that there was no prospect of any income to support the operations of the community unless an administrator was appointed which justified the issue of the Notice. These were relevant considerations for the Registrar. For the reasons specified above I consider that the Registrar's decision was reached ' by a process of logical reasoning ': see Hill v Green [1999] NSWCA 477 ; (1999) 48 NSWLR 161. I therefore reject Mutitjulu's Wednesbury submissions.


case_title: Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40 ; (1985-1986) 162 CLR 24 ,

case_text: The ground of failure to take into account a relevant consideration similarly does not arise in this instance as this ground is only established if the decision maker fails to take into account a consideration which he or she is bound to take into account in making the decision: see Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40 ; (1985-1986) 162 CLR 24 at 39; Kioa v West at 630. The Registrar was not obliged to consider the material relied upon by FaCSIA because the Registrar had no power to control FaCSIA's decision making. The Registrar was only concerned with the consequence of the disputed matters between Mutitjulu and FaCSIA, namely that funding had ceased on 30 June 2006 and that Mutitjulu had no source of income from that time.


case_title: Re Refugee Tribunal and Another; Ex parte Aala [2000] HCA 57 ; (2000) 176 ALR 219


case_text: It was alleged, in the particulars given to par 31, that that conversation occurred between Mr Llewellyn and Mr John Alexander who was the Chief Executive Officer and Managing Director of another company, Publishing and Broadcasting Limited. In Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63 ; (2001) 208 CLR 199 at 226 [42] Gleeson CJ said that: 'There is no bright line which can be drawn between what is private and what is not. Use of the term " public " is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private. An activity is not private simply because it is not done in public. It does not suffice to make an act private that because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality and the disposition of the property owner combine to afford. Certain kinds of information about a person such as information relating to health, personal relationships or finances may be easy to identify as private, as may certain kinds of activity which a reasonable person applying contemporary standards of morals and behaviour would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary person of ordinary sensibilities is in many circumstances a useful practical test of what is private.' 33 In my opinion the way in which public broadcasting licences are conducted and the responsibility of those in senior positions within them as to their conduct is a matter is capable of being of genuine public interest and is not such as would ordinarily be regarded as entirely private. 34 I am unable to accept without any evidence to support the submission of Nine Network that what is contained in par 31 on p 7 of the statement of claim is simply a matter of prurience. I accept that it is at this stage an untested allegation, as indeed any fair report of the statement of claim or the proceedings would need to make clear for it to carry the privilege against being liable for publication of defamatory matter. That is so even if it is now the law under the uniform Defamation Acts 2005 and 2006 of the various States and Territories that corporations employing more than 10 persons cannot sue for defamation. Necessarily, corporations act through individuals and those individuals, to the extent that their conduct is impugned in material reported about what goes on in courts, can be identified and can raise causes of action if there is unfair and inappropriate reporting. But it is a fundamental of a free society that there be the opportunity of members of the public to see and know what goes on in courts, including pursuant to the rules of this court, what allegations are made in open court.


case_outcome: applied

case_title: Batistatos v The Roads and Traffic Authority of New South Wales [2006] HCA 27

case_text: In Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 at [9] Gleeson CJ and Gummow, Hayne and Crennan JJ said that: '... what amounts to an abuse of the court process is insusceptible of a formulation comprising closed categories. Development continues.' 14 Their Honours referred to the grant of an anti-suit injunction and said that the counterpart of the power of the court to prevent an abuse of its processes was the power of the court to protect the integrity of those processes once set in motion.


case_title: Coco v The Queen (1994) 179 CLR 425

case_text: The right of any suitor to approach a court of justice is a fundamental right in a free society. The right is protected by the power of the court to commit persons who interfere with that right for contempt. In Coco v The Queen (1994) 179 CLR 425 at 436 Mason CJ, Brennan, Gaudron and McHugh JJ said: 'In Raymond v Honey Lord Bridge of Harwich stated that ([1983] 1 AC 1 at 14) a citizen's right to unimpeded access to the courts can only be taken away by express enactment.' 16 This court has proceedings initiated in it either by the filing of either an application and affidavit or an application and a statement of claim. The rules of the court have been devised in a way that ensures that its processes are transparent. Where it is necessary to prevent persons knowing of the bases upon which the court has had its jurisdiction invoked, O 46 r 6(1) enables a judge to decide that material is truly confidential and ought not otherwise to be made available.


case_text: Those exceptions, as identified by his Lordship, have been accepted by courts in Australia ever since, see Dickason v Dickason [1913] HCA 77 ; (1913) 17 CLR 50 at 51, where Barton ACJ for the High Court of Australia said: '... there is no inherent power in a Court of justice to exclude the public, inasmuch as one of the normal attributes of a Court is publicity, that is, the admission of the public to attend the proceedings. Power to exclude may be conferred expressly by law but there is no law which empowers us to proceed otherwise than with the ordinary publicity of a Court of justice. On the contrary, secs. 15 and 16 of the Judiciary Act show clearly an intention on the part of the legislature that the jurisdiction of this Court should be publicly exercised. Order 46 rule 6 provides relevantly that any member of the public: '... may search in a registry for, and inspect, a document in proceedings that is specified in subrule (2), unless the Court or a Judge has ordered that the document is confidential.' 10 Those documents include an application and a pleading or particulars of a pleading. Yesterday Mr Bannon SC for Nine Network agreed that there was nothing in the application in this matter which could possibly be confidential and I ordered that it be made available immediately. 11 That was an important concession because until then it had been the desire of the parties to the proceedings to conceal material that could not possibly be the subject of a claim for confidentiality. Where the rule has provided that documents must be in the opinion of the court or a judge confidential I am of the opinion that that imports confidentiality of the nature to which s 50 of the Federal Court of Australia Act 1976 (Cth) ('the Act') refers. Section 50 provides that: 'The Court may, at any time during or after the hearing of a proceeding in the Court, make such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth.'


case_text: The importance of the exercise of judicial power with those consequences was explained by Gleeson CJ, Gummow Hayne and Hayden JJ in D'Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12 ; (2005) 79 ALJR 755 at 761 [31] - [33] . Their Honours observed [32] that: 'Judicial power as an element of the government of society and its aims are wider than and more important that the concerns of the particular parties to the controversy in question, be they private persons, corporations, polities or the community as personified in the Crown or represented by a Director of Public Prosecutions. No doubt the immediate parties to a controversy are very interested in the way in which it is resolved. But the community at large has a vital interest in the final quelling that controversy. That is why reference to the 'judicial branch of government' is more than a mere collocation of words designed to instil respect for the judiciary. It reflects a fundamental observation about the way in which this society is governed.' 25 The controversy which Mr Llewellyn brought to this court was required to be pleaded. It was. It may or may not have been quelled. I have been informed that it has been but no orders have been filed in the court bringing these proceedings to an end. So far as the court is concerned they are current and pending. The allegations in these proceedings are matters which I have been informed from the bar table have attracted a fair degree of public interest and have involved litigation brought by Nine Network against Mr Llewellyn on his employment contract in the Supreme Court of New South Wales.


case_title: Home Office v Harmon [1983] 1 AC 280

case_text: Reliance was then placed on a principle in the decision of the House of Lords in Home Office v Harmon [1983] 1 AC 280 in which, over a very powerful dissenting speech by Lord Scarman with whom Lord Simon of Glaisdale agreed, a bare majority of the House of Lords came to a view which may not necessarily represent the law in this country as to the availability of documents which have been tendered and relied in open court at a time after the hearing had finished. I need not refer further to that question. 21 Significantly, the rules of the Supreme Court of New South Wales are not the same as those in O 46 r 6. That court had a rule in SCR Part 65 rule 7 , which provided that: 'A person may not search in a registry for or inspect any document or thing in the proceedings without the leave of the Court.' 22 This court has clearly taken a very different approach in its rule and has not left it to the parties to keep confidential that which has at least been relied on as the process by which proceedings in this court are initiated. Parties know that when they file in this court the rules provide that applications and pleadings are, unless the court orders they be kept confidential, available for inspection. If there is a reason at the time of the filing of documents that any such document, ought not be available for inspection, O 46 r 6(1) provides a means for it to be kept confidential. The need for that exceptional course ought to be established on evidence at the time it is filed. Of course there may be cases of urgency or necessity where it is not always possible to do so and the court is able, pursuant to its inherent powers and the powers under s 50 of the Act, to accommodate such situations. No such situation was made apparent in this case. 23 In my view the approach taken by Santow J and Barrett J is fundamentally erroneous. It misunderstands the function of fair reports of proceedings and the availability to all persons of the right to be able to make fair reports of proceedings that have been initiated in courts. Ordinary members of the public are well aware of the difference between allegations made in courts and findings made by courts. People who make allegations or cause the processes of courts to be invoked do so in the circumstance that they are asking for the judicial power of the state or, here, the Commonwealth to be applied to the resolution of their dispute.


case_text: That power appears to reflect the inherent power of every superior court and the implied power of every court to prevent abuse of its own processes and to protect the administration of justice and, in the case of superior courts, to protect the administration of justice not merely in the proceedings before the court but generally: see John Fairfax & Sons Pty Ltd v McRae [1955] HCA 12 ; (1955) 93 CLR 351 at 364-365.


case_text: In John Fairfax and Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 481 McHugh JA identified the substantial importance of the right to publish fair and accurate reports of court proceedings as a common law right the enjoyment of which fell within the common law presumption of immunity from statutory interference. That presumption is of course reinforced by the availability of the statutory defence of fair report.


case_text: In Mirror Newspapers Limited v Harrison [1982] HCA 50 ; (1982) 149 CLR 293 at 300-301 Mason J said: '...there is now a strong current of authority supporting the view that a report which does no more than state that a person has been arrested and has been charged with a criminal offence is incapable of bearing the imputation that he is guilty or probably guilty of that offence. ... The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty. Although he knows that many persons charged with a criminal offence are ultimately convicted he is also aware that guilt or innocence is a question to be determined by a court, generally by a jury, and that not infrequently the person charged is acquitted.' 27 I am of opinion that a similar principle is well known to members of the community in respect of civil litigation. The proposition that untested allegations in civil proceedings are somehow to be shielded from public view merely because they are untested allegations and could only possibly be properly understood in the context of a fully contested hearing is, in my opinion, not one that can sit with the principle of open justice or the right of anyone fairly to report proceedings in a court of justice. 36 Those who report untested allegations in court do so every day when they report what happens in Local and Magistrates Courts, when persons are first brought before those courts charged with serious criminal offences. Generally, all the allegations that are made on behalf of the prosecution are untested allegations about some of the most serious things that can be said of persons. Those persons stand daily before such courts charged with crimes which might be thought to be minor or as major as crimes like murder, sexual assault or those of a terrorist nature. Members of the public, as Mason J made clear in Mirror Newspapers v Harrison (1982) 149 CLR at 300-301, understand that it is fundamental to the open administration of justice that, as a routine, courts have allegations made in them which are untested at stages in the course of proceedings. At the end of the day the ordinary reasonable member of the community understands that it is the responsibility of the court, be it a judge or jury, to make findings about those allegations and then to decide cases. Ordinary members of the community understand that those matters are part of the administration of justice. Members of the media generally have a similar understanding. 37 I am of opinion that the material put to the court for the purposes of seeking to have access to the application and statement of claim denied under order 46, rule 6 , was utterly inadequate to justify that claim. I note that, when offered the opportunity over night to either put on evidence or further submissions, the parties to the proceedings chose, and they may well have done so for other reasons, not pursue that matter. However, in seeking to restrict the rights of inspection under O 46 r 6 given to every member of the public, including the media applicants who appeared before the court yesterday and today, the parties to the proceedings caused the court to convene yesterday on an urgent basis because the right of access to the court's files was being interrupted. 38 Such matters are, in my opinion, matters which ought to be dealt with promptly and urgently. Interferences with the principle of open justice are matters which are of fundamental importance to the administration of justice and require prompt adjudication.


case_text: The originating process and pleadings in proceedings initiated in a court of justice such as this court with rules such as O 46 r 6, are intended by the rules of the court to be available to the public. That is so that they may see what is the controversy brought to the court for resolution by it in its ordinary function as a court constituted under Chapter III of the Constitution . That function is to resolve controversies that arise under laws of the Commonwealth or under the Constitution itself and to determine finally all matters in dispute between the parties. Hence, the jurisdiction of this court to deal finally with the whole of the matter between parties even though only a part of it, and perhaps only a small part of it, involves an issue which is a 'matter' within the meaning of ss 75 and 76 of the Constitution : see Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511. 29 It was suggested by senior counsel for Nine Network yesterday that what appears on page 7 in the statement of claim was a confidential matter involving a private communication within the Nine Network companies and was only of prurient interest to those seeking to exercise their right to inspect under O 46 r 6. That was put as a substantive basis for the resistance to the right of access being afforded and a suggestion that the material was confidential within the terms of r 6(1). 30 The allegation the subject of that submission was that on or about 11 January 2006 Mr Llewellyn was directed by an agent of Nine Network to prepare a news story attacking Mr Kerry Stokes of Channel 7 in relation to a news story on Channel 7 which in turn had attacked Mr James Packer. Mr Llewellyn alleged that he refused to follow that direction. There was then another allegation that a week later he was directed by Mr Chisholm to terminate a Mr John Lyons' employment due to what was alleged to be poor performance. Mr Lyons was at that time employed in the position of an executive director of the Sunday program.


case_title: Scott v Scott [1913] AC 417

case_text: Senior counsel for Nine Network submitted me that the word 'confidential' in O 46 r 6(1) could be read as being more limited than relating to the kinds of confidences which the court protects under the exceptions to the principle of open justice. Those principles were identified by Viscount Haldane, Lord Chancellor, in Scott v Scott [1913] AC 417 at 437-438. His Lordship explained that the first two of those classes dealt with cases of wardship and what, was in those days called lunacy and today may be called, mental illness. 8 The third class was where the effect of the publicity would destroy the subject matter of the proceedings. His Lordship said that class stood on a different footing: 'There it may well be that justice could not be done at all if it had to be done in public. As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration.'


case_text: By virtue of s 664, the respondent bears the onus of proving that it did not terminate the applicant's employment for a proscribed reason, or for reasons that included a proscribed reason. Section 664 reads as follows: In any proceeding under s 663 relating to a termination of employment in contravention of section 659 for a reason (a proscribed reason ) set out in a paragraph of subsection (2) of that section: (a) it is not necessary for the employee to prove that the termination was for a proscribed reason; but (b) it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 659(3) or (4) applies). (Emphasis original) Section 664 is substantially identical to s 170CQ of the Act as it stood prior to the Workplace Relations (Work Choices) Act 2005 (Cth). The authorities on s 170CQ and predecessor provisions are therefore relevant: see, e.g., Laz v Downer Group Ltd (2000) 108 IR 244 (' Laz ') at 255 per Moore J. 9 Counsel for Mr Claveria argued that Pilkington had terminated Mr Claveria's employment in contravention of s 659(2)(e) of the Act, because Pilkington included in its reasons for termination the fact that: (1) Mr Claveria had recourse to competent administrative authorities; and (2) that he had filed a complaint against his employer involving alleged violation of laws or regulations. Relying on s 664, Mr Claveria submitted that it was incumbent on Pilkington to establish, on the balance of probabilities, that his complaint to the union was not one of the reasons for Mr Dunstan's decision to terminate his employment. 142 Whether there can be a satisfactory working relationship between Mr Claveria and the respondent's representatives in the event of reinstatement is a relevant consideration. Counsel for Mr Claveria referred me to various authorities concerning s 170EE of Industrial Relations Act 1988 as it then was: see Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 (' Perkins '); Abbott-Etherington v Houghton Motors Pty Ltd (1995) 63 IR 394; and Liddell v Lembke (1994) 127 ALR 342. This provision differed in terms from s 665. Some care must therefore be taken with these authorities. What they demonstrate, however, is that the Court has taken a reasonably robust attitude to an employer's claim of relationship breakdown with an employee following termination in contravention of a provision such as s 659(2)(e) of the Act: compare Perkins at 191. Moore J adopted much the same approach in Laz , in determining to make an order under s 170CR(1)(b) of the Act, which was in virtually identical terms to s 665. Although Mr Dunstan, Mr Findlay and Mr Claveria have been the subject of some strong criticisms in the course of this litigation, I doubt that this has created an insurmountable obstacle to Mr Claveria's reinstatement. The nature of Mr Claveria's work must be borne in mind, as well as the fact that he has worked for the respondent for many years. His long experience with Pilkington indicates that he has the capacity to take up employment with the company again. I accept that, if Mr Claveria returns to the Laverton factory, Mr Dunstan is likely to find the situation difficult initially, but I also accept that his embarrassment is likely to be short-term. Furthermore, the nature and extent of the Pilkington's workforce should be borne in mind. There was evidence, which was undisputed, that Pilkington employs about 15 workers on afternoon shift at the Laverton factory and about 23 on the day shift. It also operates a large plant in nearby Geelong. 143 In any event Mr Claveria's interests must be borne in mind. Mr Claveria impressed me as an employee who greatly desired to have back his job with Pilkington and would do all he could to retain it. He had worked for the respondent for some thirteen years before his termination in contravention of the Act. Since this happened, Mr Claveria has since struggled to find work. He worked a few shifts as a labourer/store-person with one employer and some other irregular shifts with another employer. He also found some other casual work. At the time of the hearing, Mr Claveria was employed on an irregular on-call basis. An order for compensation would be an inadequate remedy in view of these employment difficulties. In these circumstances, Mr Claveria should not be left to compensation as a remedy for termination of his employment in breach of s 659(2)(e) of the Act: compare Laz at 259. 144 An order for Mr Claveria's reinstatement should be made. Mr Claveria argued that any order for reinstatement should be reinstatement "with continuity of service and in the same position and on the same terms and conditions of employment as he had immediately prior to his dismissal". He relied on Anthony Smith & Associates Pty Limited v Sinclair (1996) 67 IR 240. This was a decision concerning the former s 170EE of the Industrial Relations Act 1988 , which was relevantly different in terms to s 665: compare Laz at 259 per Moore J concerning s 170CR(1) of the Workplace Relations Act 1996 (which was in the same terms as s 665(1)). The respondent argued that in truth Mr Claveria had confused the Commission's power under s 654(3) with the Court's power under s 665(1). It contended that the orders that Mr Claveria sought were beyond the power of the Court. 146 Mr Claveria sought an order for compensation under s 665(1)(c). In Laz at 261, Moore J thought it arguable that compensation and reinstatement could not be ordered in the same matter. Instead, his Honour considered that s 665(1)(d), or s 665(1)(d) and (e), would support an order for back pay. Indeed, in Laz at 260, Moore J thought that the power to order reinstatement may include the power to require the payment of lost wages or salary. There is, however, nothing in s 665(1) that in terms provides that an order for compensation under s 665(1)(c) calculated by reference to the remuneration lost by an employee as a result of the wrongful termination cannot be made where an order for reinstatement under s 665(1)(a) is appropriate. However characterized, Mr Claveria is entitled to an order for payment of wages lost as a result of his termination on 24 January 2007 until the date of his reinstatement. The parties stated at the hearing that they would be in a position to make this calculation in the event the Court made an order of this kind. 147 Mr Claveria also sought the imposition of a penalty under s 665(1)(a) of the Act. In Laz at 261, Moore J held that the mere fact that there has been a termination in contravention of the Act does not, without more, give rise to a situation where a penalty should (as opposed to might) also be imposed. In Laz , Moore J referred to French J's comment in Fox v St Barbara Mines Ltd [1998] FCA 621 that: [penalties] are punitive in character and must be assessed having regard, inter alia, to the gravity of the conduct complained of, the existence of mitigating circumstances and the need to deter the repetition of the conduct whether by the employee in question or generally. In Fox , the employer terminated the employee's employment with a calculated and contemptuous disregard for the law and the Court imposed a penalty of $9,000. The employer's conduct in Laz was not of this kind and the Court did not impose a penalty: see generally Laz at 261 per Moore J. 148 I consider a penalty should be imposed in this case. The respondent terminated Mr Claveria's employment with it on 24 January 2007 for reasons that included retaliation for Mr Claveria's having recourse to the union in connection with perceived bullying and harassment on his manager's part. The evidence in this regard was clear. The respondent acted so as to deny Mr Claveria the freedom to pursue a basic right protected by the Act. Further, there has been less than straight dealing on the respondent's part. This was evident in Mr Findlay's seeking to stop Mr Dunstan from reiterating to Mr Seneviratne and Mr Vari on 1 February 2007 that he had terminated Mr Claveria because he had gone behind his back to the union. Mr Findlay acknowledged in evidence that he knew that termination in retaliation for "going to the union" would be wrong and in breach of the Act. Mr Findlay and Mr Dunstan knew that Mr Claveria's going to the union had cost him his job on 24 January 2007, and the reasons that Mr Dunstan advanced to justify Mr Claveria's termination that day did not represent the whole picture. 149 The amount of penalty falls for consideration. The respondent submitted that, given the size of the company, there were "remarkably few" termination proceedings issued against it and that there was only a minimal need for specific deterrence. There was no evidence of these matters, however, and, if they are not common ground, then the respondent should have the opportunity to call evidence about its previous record. Indeed counsel for Mr Claveria accepted as much. 150 If it be necessary, I would also grant leave to file and serve the amended statement of claim dated 5 September 2007 and the Amended Defence also dated 5 September 2007. Further, for the reasons set out above, I would dismiss the respondent's strike out motion, notice of which is dated 17 July 2007. 151 I propose to adjourn the matter to 19 November 2007 to enable the parties to prepare short draft minutes of order to give effect to these reasons. I certify that the preceding one hundred and fifty-one (151) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate: Dated: 7 November 2007 Counsel for the Applicant: Ms L Doust Solicitor for the Applicant: Maurice Blackburn Cashman Counsel for the Respondent: Mr T Donaghey Solicitor for the Respondent: Victorian Employers' Chambers of Commerce and Industry Date of Hearing: 4, 5 and 6 September 2007 Date of Judgment: 7 November 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1692.html