case_text: then does one assess the overall impression of a design in infringement proceedings? As noted earlier, until recently there has been little Australian judicial consideration of the 2003 Designs Act. The principal cases to date include Review 2 Pty Ltd v Redberry Enterprise Pty Ltd [2008] FCA 1588 ; Review Australia Pty Ltd v Innovative Lifestyle Investments Pty Ltd (2008) 166 FCR 358 ; Review Australia Pty Ltd v New Cover Group Pty Ltd [2008] FCA 1589 and World of Technologies (Aust) Pty Ltd v Tempo (Aust) Pty Ltd (2007) 71 IPR 307. In Review Australia Pty Ltd v Innovative Lifestyle Investments Pty Ltd (2008) 166 FCR 358 ( Innovative ), Jessup J concluded that the word make in s 71(1) also includes those who direct, cause, or procure an infringing item to be made as well as those who make such an item themselves: Innovative at [21]. At first glance, therefore, it would seem that Ren and Olsen would be considered primary infringers. Although they did not make the products themselves, they directed, caused, or procured the Condor lights to be made by issuing purchase orders to their Chinese suppliers based on samples, designs, or other specifications. Elecspess and AAA, having only sold the products, would be secondary infringers. I say "at first glance," however, because in the Review cases, Kenny J added an important qualification to Jessup J's holding in Innovative . Her Honour noted the long-standing common law presumption, codified in s 21(1)(b) of the Acts Interpretation Act 1901 (Cth), that statutes are to be read as being confined to their operation within territorial limits: Review 2 Pty Ltd v Redberry Enterprise Pty Ltd [2008] FCA 1588 at [77] ; Review Australia Pty Ltd v New Cover Group Pty Ltd [2008] FCA 1589 at [48] . Although the Respondents in this case did not raise any extraterritoriality issue, I consider it appropriate to do so because the parties did not have the benefit of Kenny J's judgment at the time of trial and because the issue relates to the Court's jurisdiction - that is, it goes to a matter in respect of which the Court is required to satisfy itself regardless of the parties' submissions or lack thereof. For those reasons, Ren and Olsen could not be considered primary infringers, even though they procured the making of the infringing Condor lights, because the actual manufacture occurred outside of Australia. That is not to say that they would therefore escape liability completely. Rather, each of Elecspess, AAA, Ren and Olsen must be considered secondary infringers on the basis of their having imported (in the case of Ren and Olsen) or offered for sale (in the case of all four) in Australia the infringing Condor lights. I would consider the Director Respondents as secondary infringers as well, on a similar basis as that given by Jessup J in Innovative - namely, that importing or selling, as the case may be, should be understood to also include directing, causing, or procuring an infringing item to be imported or sold. The relevant provision of s 75 is therefore s 75(2)(b). That subsection requires the court to consider, in determining whether an affirmative defence is available, whether a secondary infringer was aware or could not reasonably have been expected to have been aware that the design was registered. Assuming that Ren and Olsen in fact had taken no steps to ascertain whether the Designs were registered at the time of the infringing conduct, that fact alone might not have disentitled them to rely upon the affirmative defence. The language of s 75(2)(b) ("could reasonably have been expected to be aware") shows that a Court cannot assume that there is always an affirmative duty to search the Register. Such a possibility was referred to by the ALRC at par 14.16 of its Report in the following terms: The register provides notice to the world that a design is registered. If a defendant has not searched the register, the court may conclude under s 32B that a search was a reasonable step that the defendant had neglected to take . It should not be mandatory for persons who claim innocence in infringement to search the register . However in exercising its discretion, the court may take into account whether it was reasonable in all the circumstances for a search to have been conducted. (Emphasis added.) The ALRC added at par 14.17, "It would be inappropriate for a retailer or importer, who may deal with a variety of products, to be required to check whether the products' designs have all been registered." I accept that it would be inappropriate to impose a per se duty on secondary infringers. However, in my view, there will be circumstances where a secondary infringer should reasonably be expected to check whether the products' designs have been registered. If, having checked, they would have ascertained the limits of the monopoly (which is the case here), then they would not be able to make out the affirmative defence. The question is therefore whether, in all the circumstances, it would have been reasonable in this case for the Respondents to have searched the Register? In my view, it would have been. That conclusion is dependent on two findings. First, having regard to the substantial similarity between the Designs and the Condor Products and in the absence of any evidence to the contrary, it would be reasonably open to infer that a representative of Ren and Olsen (and for that matter, AAA and Elecspess) saw the commercial embodiment of the Design: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298. Secondly and more importantly, the commercial embodiments of the Designs, in both their packaged and unpackaged form, contain a form of notice that would give rise at least to a duty to check the name LED Technologies on the Register. The notice is at the foot of the packaging and comprises the words "Registered Design". The rear of the base of each lamp has embossed on it a further notice, "Design Certificate Registration Number [NUMBER STATED]." There is no suggestion here that the notification on LED Tech's packaging was defective for s 75 purposes in any of the ways described by Kenny J or Jessup J: see Review 2 Pty Ltd v Redberry Enterprise Pty Ltd [2008] FCA 1588 at [80] - [81] (accepting that a design notification affixed to the product, such as a swing tag, could be sufficient to put a potential infringer on notice but finding on the facts that there was not such notice at the relevant time); and Innovative at [48]-[52] (finding that the swing tag did put the infringer on notice, but refusing to take the notification into account in determining damages because the tag was misleading in part).


case_outcome: cited

case_text: "informed user" concept in the 2003 Designs Act has been the subject of recent judicial consideration in Australia: Review 2 Pty Ltd v Redberry Enterprise Pty Ltd [2008] FCA 1588 at [19] - [27] ; Review Australia Pty Ltd v New Cover Group Pty Ltd [2008] FCA 1589. It is a concept the ALRC borrowed from European Community Design law, now codified in Council Regulation (EC) No. 6/2002 and in the Registered Design Act 1949 (UK): see ALRC Report, para 5.17-5.21 and 6.12-6.13; Proctor & Gamble Company v Reckitt Benckiser (UK) Ltd (2007) 73 IPR 605 at [32] and J Choo (Jersey) Ltd v Towerstone Ltd [2008] FSR 19 at [7]. How then does one assess the overall impression of a design in infringement proceedings? As noted earlier, until recently there has been little Australian judicial consideration of the 2003 Designs Act. The principal cases to date include Review 2 Pty Ltd v Redberry Enterprise Pty Ltd [2008] FCA 1588 ; Review Australia Pty Ltd v Innovative Lifestyle Investments Pty Ltd (2008) 166 FCR 358 ; Review Australia Pty Ltd v New Cover Group Pty Ltd [2008] FCA 1589 and World of Technologies (Aust) Pty Ltd v Tempo (Aust) Pty Ltd (2007) 71 IPR 307. I say "at first glance," however, because in the Review cases, Kenny J added an important qualification to Jessup J's holding in Innovative . Her Honour noted the long-standing common law presumption, codified in s 21(1)(b) of the Acts Interpretation Act 1901 (Cth), that statutes are to be read as being confined to their operation within territorial limits: Review 2 Pty Ltd v Redberry Enterprise Pty Ltd [2008] FCA 1588 at [77] ; Review Australia Pty Ltd v New Cover Group Pty Ltd [2008] FCA 1589 at [48] . Although the Respondents in this case did not raise any extraterritoriality issue, I consider it appropriate to do so because the parties did not have the benefit of Kenny J's judgment at the time of trial and because the issue relates to the Court's jurisdiction - that is, it goes to a matter in respect of which the Court is required to satisfy itself regardless of the parties' submissions or lack thereof.


case_outcome: discussed

case_text: contrary to the Respondents' submissions, distinctiveness is to be assessed not by comparing the design in question to the prior art base as a whole but by comparing it individually to each relevant piece of prior art: s 15(1) read with ss 16(1) and (2). Part 4 of Chapter 2 of the 2003 Designs Act must be read as a whole. The Respondents cannot, as they do, simply selectively choose ss 15(1) and 19(2) to support their contention that a comparison is made of the design with the totality of the entire relevant prior art base for that design whilst ignoring the express words of the rest of Pt 4 including ss 16 and 19(1). It is those sections which expressly provide that a design is distinctive unless it is substantially similar in overall impression to a design that forms part of the prior art base for the design. As a result, a design that combines various features, each of which can be found in the prior art base when considered as a whole but not in any one particular piece of prior art, is capable of being distinctive: Review 2 Pty Ltd v Redberry Enterprise Pty Ltd [2008] FCA 1588 at [60] ; Karen Millen Ltd v Dunnes Stores Ltd [2008] ECDR 11 at [82]-[84] (stating that the registered design must be assessed with regard to particular prior designs rather than a hypothetical amalgam of a number of prior designs). See also Lockwood Security Products Pty Ltd v Doric Products Pty Ltd [2007] HCA 21 ; (2007) 235 ALR 202 (upholding the validity in the patent context of a combination of features known collectively in the prior art). Thirdly, the judgment is an objective one. In assessing substantial similarity in overall impression, the standard to be applied is that of the informed user - namely, the court standing in the shoes of a notional person who is familiar with the product to which the design relates, or products similar to the product to which the design relates: s 19(4); Review 2 Pty Ltd v Redberry Enterprise Pty Ltd [2008] FCA 1588 ; see also Dart Industries Inc v Decor Corporation Pty Ltd (1989) 15 IPR 403 , 408-409. That informed user , in assessing substantial similarity in overall impression: gives more weight to similarities between the designs than to differences between them: s 19(1); considers the state of development of the prior art base for the design: s 19(2)(a); considers the particular visual features of the design described in the statement of newness and distinctiveness in the context in which they appear: s 19(2)(b) and (c); if only part of the design is substantially similar to another design, considers the amount, quality and importance of that part in the context of the design as a whole: s 19(2)(c); and considers the freedom of the creator of the design to innovate: s 19(2)(d). The "informed user" concept in the 2003 Designs Act has been the subject of recent judicial consideration in Australia: Review 2 Pty Ltd v Redberry Enterprise Pty Ltd [2008] FCA 1588 at [19] - [27] ; Review Australia Pty Ltd v New Cover Group Pty Ltd [2008] FCA 1589. It is a concept the ALRC borrowed from European Community Design law, now codified in Council Regulation (EC) No. 6/2002 and in the Registered Design Act 1949 (UK): see ALRC Report, para 5.17-5.21 and 6.12-6.13; Proctor & Gamble Company v Reckitt Benckiser (UK) Ltd (2007) 73 IPR 605 at [32] and J Choo (Jersey) Ltd v Towerstone Ltd [2008] FSR 19 at [7]. The "informed user" concept has also been considered by the courts in the United Kingdom. In Woodhouse UK plc v Architectural Lighting Systems [2006] RPC 1 at [59], Judge Fysh QC of the Patents County Court defined an informed use r in the following terms: First, this notional person must obviously be a user of articles of the sort which is subject of the registered design - and I would think, a regular user at that. He could thus be a consumer or buyer or be otherwise familiar with the subject matter say, through use at work. The quality smacks of practical considerations. In my view the informed user is first, a person to whom the design is directed. Evidently he is not a manufacturer of the articles and both counsel roundly rejected the candidature of "the man in the street". " Informed " to my mind adds a notion of familiarity with the relevant rather more than what one might expect of the average consumer; it imports the notion of "what's about in the market?" and "what has been about in the recent past?" I do not think it requires an archival mind (or eye) or more than an average memory but it does I think demand some awareness of product trend and availability and some knowledge of basic technical considerations (if any). In connection with the latter, one must not forget that we are in the territory of designs and thus what matters most is the appearance of things; as Mr Davis reminded me, these are not petty patents. Therefore, focus on eye appeal seems more pertinent than familiarity with the underlying operational or manufacturing technology (if any). I feel uncomfortable with analogy to the "man skilled in the art" whose "nerd-like" (and other) attributes seem too technical: Technip France SA's Patent [2004] EWCA Civ 381 ; [2004] R.P.C. 46 at [6-12] ( CA). This formulation was considered and approved by Lewison J in Proctor & Gamble Company 73 IPR 605 at [31], [32] and [41] and was also applied in Application by Pauline Ann Walton to invalidate UK Registered Design in the name of Zap Ltd [2007] ECDR 10. To the extent that it matters (and it might not), the Australian Designs Office ("the ADO") has indicated that the informed user concept is an objective test where the user is an ordinary or typical member of a sample of users of the product who is reasonably informed, being neither barely informed nor fully expert: Apple Computer Inc (2007) 74 IPR 164 and Icon Plastics Pty Ltd [2007] ADO 2 as discussed in Review 2 Pty Ltd v Redberry Enterprise Pty Ltd [2008] FCA 1588 at [25] . How then does one assess the overall impression of a design in infringement proceedings? As noted earlier, until recently there has been little Australian judicial consideration of the 2003 Designs Act. The principal cases to date include Review 2 Pty Ltd v Redberry Enterprise Pty Ltd [2008] FCA 1588 ; Review Australia Pty Ltd v Innovative Lifestyle Investments Pty Ltd (2008) 166 FCR 358 ; Review Australia Pty Ltd v New Cover Group Pty Ltd [2008] FCA 1589 and World of Technologies (Aust) Pty Ltd v Tempo (Aust) Pty Ltd (2007) 71 IPR 307. With respect, I disagree with the proposition that as a general matter a court should start out by comparing product with product rather than registered design with product. First and most importantly, such an approach is inconsistent with the statutory language. Section 71(1)(a) directs the court to perform the substantial similarity analysis by comparing a product (the allegedly infringing item) to the registered design. Secondly, Jacob LJ's approach is inconsistent with that taken by Kenny J in Review 2 Pty Ltd v Redberry Enterprise Pty Ltd [2008] FCA 1588 at [28] , [35]. Significantly, the expert evidence in Review was challenged on the basis that the witness had improperly compared product with product (and had even tried the products on): see [33]. Although Kenny J ultimately allowed the evidence, her Honour nevertheless proceeded on the basis that the comparison for the court was between registered design and product and the expert evidence in question had to be taken subject to the complaints made by the other side: see [34]-[36]. I am of a similar view. While there may be circumstances in which it is appropriate (or at least not wholly inappropriate) for an expert witness giving evidence as an informed user to have regard to a product embodying the registered design in providing an opinion on the substantial similarity question, the task for the court itself as laid down by the statute remains to compare the registered design to the allegedly infringing product. Moreover, even if I were not inclined to the view of Kenny J, I could not, in light of the statutory language, consider her Honour's approach plainly wrong, and thus I would follow it in preference to Jacob LJ's approach in any event. I therefore conclude that infringement is determined by comparing the allegedly infringing product against the registered design, not by comparing a product embodying the registered design against the infringing product: s 71. Thus the fact that the actual LED light is similar to the Condor TL light is not relevant. Moreover, infringement is determined by comparing only the visible features of the design to the infringing product: ss 7 and 19. Thus the fact that the products have different materials in the lens or have different voltages is also irrelevant. If a visual comparison is made of the top view of a Condor product (such as the TL80ARW) against the registered design (eg figures 1, 2, 3 and 4 of 6 in Annexure A), the Condor product is "substantially similar in overall impression" to the Designs: s 71(1)(a) of the 2003 Designs Act. There is a continuous base. There is a flat strip or landing between each lens. The sides of the base of both the Designs and the Condor product comprise a sloping, rounded mounting bracket surrounding the lenses. I say "at first glance," however, because in the Review cases, Kenny J added an important qualification to Jessup J's holding in Innovative . Her Honour noted the long-standing common law presumption, codified in s 21(1)(b) of the Acts Interpretation Act 1901 (Cth), that statutes are to be read as being confined to their operation within territorial limits: Review 2 Pty Ltd v Redberry Enterprise Pty Ltd [2008] FCA 1588 at [77] ; Review Australia Pty Ltd v New Cover Group Pty Ltd [2008] FCA 1589 at [48] . Although the Respondents in this case did not raise any extraterritoriality issue, I consider it appropriate to do so because the parties did not have the benefit of Kenny J's judgment at the time of trial and because the issue relates to the Court's jurisdiction - that is, it goes to a matter in respect of which the Court is required to satisfy itself regardless of the parties' submissions or lack thereof. The question is therefore whether, in all the circumstances, it would have been reasonable in this case for the Respondents to have searched the Register? In my view, it would have been. That conclusion is dependent on two findings. First, having regard to the substantial similarity between the Designs and the Condor Products and in the absence of any evidence to the contrary, it would be reasonably open to infer that a representative of Ren and Olsen (and for that matter, AAA and Elecspess) saw the commercial embodiment of the Design: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298. Secondly and more importantly, the commercial embodiments of the Designs, in both their packaged and unpackaged form, contain a form of notice that would give rise at least to a duty to check the name LED Technologies on the Register. The notice is at the foot of the packaging and comprises the words "Registered Design". The rear of the base of each lamp has embossed on it a further notice, "Design Certificate Registration Number [NUMBER STATED]." There is no suggestion here that the notification on LED Tech's packaging was defective for s 75 purposes in any of the ways described by Kenny J or Jessup J: see Review 2 Pty Ltd v Redberry Enterprise Pty Ltd [2008] FCA 1588 at [80] - [81] (accepting that a design notification affixed to the product, such as a swing tag, could be sufficient to put a potential infringer on notice but finding on the facts that there was not such notice at the relevant time); and Innovative at [48]-[52] (finding that the swing tag did put the infringer on notice, but refusing to take the notification into account in determining damages because the tag was misleading in part).


case_text: is little doubt that first impressions are important when comparing a registered design with an allegedly infringing product in the manner prescribed by the 2003 Designs Act: ALRC Report para 5.15. In the United Kingdom, in applying an "overall impression" test, the approach is to hold a product embodying the registered design (provided that the Court is satisfied that it is a true embodiment of the registered design) and the alleged infringing product in hand and undertake a reasonably careful comparison between the two: Proctor & Gamble Company 73 IPR 605 at [12]. See also J Choo (Jersey) Ltd v Towerstone Ltd [2008] FSR 19 at [6] (citing Proctor & Gamble for the proposition that court may have regard to a physical embodiment of the registered design in making the comparison to the allegedly infringing product); but see Rolawn Lawn Ltd v Turfmech Machinery Ltd [2008] EWHC 989 Pat at [124] (stating that the exercise involves comparing the registered design to a photograph of the allegedly infringing product rather than the product itself).


case_text: next matter to be considered is the claim of secondary liability of the Directors under the TPA. The principles are well established. Natural persons will be liable in damages for a contravention by a corporation if they had a "close, rather than a remote involvement in the contravention": Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 , 584. Moreover, the participation in the contravention requires actual, rather than constructive, knowledge of the essential matters that make up the contravention: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 , 666-670 and 677, Rural Press Ltd v ACCC [2002] FCAFC 213 ; (2002) 118 FCR 236 at [67] and Quinlivan v ACCC (2004) 160 FCR 1 at [8]-[9].


case_text: is an Administrator of Vehicle Standards: s 22 of the MVSA. It is common ground that proof of vehicle standards is not required: s 143(1)(b) of the Evidence Act 1995 (Cth). The Minister has determined the following relevant standards as vehicle standards pursuant to s 7 of the MVSA: Vehicle Standard (Australian Design Rule 1/00 Reversing Lamps) 2005 White dated 21 November 2005 ("ADR 1"), prescribes the photometric requirements for reversing lamps which will warn pedestrians and other road users that the vehicle is about to move or is moving in the reverse direction, and which during the hours of darkness will aid the driver in reversing manoeuvres; Vehicle Standard (Australian Design Rule 6/00 Direction Indicators) 2005 Yellow / Amber dated 13 December 2006 ("ADR 6"), prescribes the photometric requirements for a device mounted on a motor vehicle or trailer which when operated by the driver signals the latter's intention to change the direction in which the vehicle is proceeding; Vehicle Standard (Australian Design Rule 49/00 Front and Rear Position (Side) Lamps, Stop Lamps and End Outline Marker Lamps) 2005 Red dated 3 April 2007 ("ADR 49"), prescribes the photometric requirements for light-signalling devices which will indicate the presence, width and position of the vehicle when viewed from the front and from the rear. The determination accompanying ADR 1 suggests that the ADR was determined to be a vehicle standard under s 7(1) of the MVSA. No such provision exists. For the purposes of this analysis I have assumed that the determination was in fact made under s 7 of the MVSA. None of the parties suggested that this apparent error invalidated or otherwise altered the operation of the standard, and in any event the authorities hold that, as a general matter, judicial redrafting of obvious typographical errors is permitted: Saraswati v The Queen [1991] HCA 21 ; (1991) 172 CLR 1 , 21-22; Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) [1981] HCA 26 ; (1981) 147 CLR 297 , 305, 311, 321.


case_text: the circumstances, the better approach is to assess damages doing the best I can, even if such quantification necessarily involves a degree of speculation and guesswork: eg Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10 ; (2003) 196 ALR 257 at [37] - [38] ; Adidas-Solomon AG v Turner (2003) 58 IPR 66 at [4]-[5]; Enzed Holdings Ltd v Wynthea Pty Ltd (1984) 57 ALR 167 , 183; Sony Computer Entertainment Australia Pty Ltd v Stirling [2001] FCA 1852 at [7] .


case_title: Quinlivan v ACCC (2004) 160 FCR 1


case_outcome: referred to

case_text: .au Domain Administration Ltd v Domain Names Australia Pty Ltd [2004] FCA 424 ; (2004) 207 ALR 521 at [12] - [26] , Finkelstein J provided a useful summary of the approach that might be taken where a court is required to assess conduct by reference to a specific class or classes of consumers and did that by particular reference to Taco Co of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136 ; (1982) 42 ALR 177 , 202-203 per Deane and Fitzgerald JJ and Nike at [100]-[103]. The approach may be summarised in six points, as follows:


case_text: that one or more of the Representations conveyed was false, misleading or deceptive or likely to mislead or deceive, LED Tech's claims under the TPA fail because LED Tech did not establish an essential element of the cause of action damage: Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 , 525 (per Mason CJ). Although never properly articulated, the causation and damages theory of LED Tech's TPA claims seemed to be a lost sales theory similar to that underpinning the infringement claim: (1) (a) consumers prefer to buy, or (b) in some cases will only buy; (2) products that are marked as complying with applicable safety standards and that do comply with those standards; (3) LED Tech's lamps comply with the ADRs; (4) had it been known to the market that the Corporate Respondents' products did not comply with the ADRs (ie if they did not bear the Captions); (5) all those who purchased the Corporate Respondents' products; (6) would instead have purchased LED Tech's lamps; (7) such that the Representations caused LED Tech to lose sales in the amount of the Corporate Respondents' sales. As noted earlier, LED Tech's claim seemed to assume that every sale made by the Corporate Respondents of a Condor Product would have been a sale that LED Tech would have made. That is not an assumption that can be made in the infringement context, and it is even more remote in the TPA context. It is not supported by human experience or, more importantly, by the evidence. As I noted at the outset, the market in Australia for LED automotive lamps was highly competitive. There was evidence that certain large manufacturers would only buy from suppliers holding CRNs; however, there was no evidence to show that ordinary consumers, particularly aftermarket consumers, considered safety compliance to be so material as to prevail over factors such as price and convenience. Furthermore, it goes without saying that LED Tech's lost sales, whatever the precise number of units, cannot be double counted. In no event could they be more than the number of units actually sold by the Corporate Respondents. As noted earlier, I calculated infringement damages based on the assumption that the Respondents' sales data reflected the number of units actually sold by them, less a certain (not precisely quantifiable) discount based on the fact that their data was on the conservative side. To receive any damages under the TPA over and above the infringement award, LED Tech would have to satisfy the Court that the TPA contraventions caused it to lose additional sales.


case_outcome: approved

case_text: "informed user" concept has also been considered by the courts in the United Kingdom. In Woodhouse UK plc v Architectural Lighting Systems [2006] RPC 1 at [59], Judge Fysh QC of the Patents County Court defined an informed use r in the following terms: First, this notional person must obviously be a user of articles of the sort which is subject of the registered design - and I would think, a regular user at that. He could thus be a consumer or buyer or be otherwise familiar with the subject matter say, through use at work. The quality smacks of practical considerations. In my view the informed user is first, a person to whom the design is directed. Evidently he is not a manufacturer of the articles and both counsel roundly rejected the candidature of "the man in the street". " Informed " to my mind adds a notion of familiarity with the relevant rather more than what one might expect of the average consumer; it imports the notion of "what's about in the market?" and "what has been about in the recent past?" I do not think it requires an archival mind (or eye) or more than an average memory but it does I think demand some awareness of product trend and availability and some knowledge of basic technical considerations (if any). In connection with the latter, one must not forget that we are in the territory of designs and thus what matters most is the appearance of things; as Mr Davis reminded me, these are not petty patents. Therefore, focus on eye appeal seems more pertinent than familiarity with the underlying operational or manufacturing technology (if any). I feel uncomfortable with analogy to the "man skilled in the art" whose "nerd-like" (and other) attributes seem too technical: Technip France SA's Patent [2004] EWCA Civ 381 ; [2004] R.P.C. 46 at [6-12] ( CA). This formulation was considered and approved by Lewison J in Proctor & Gamble Company 73 IPR 605 at [31], [32] and [41] and was also applied in Application by Pauline Ann Walton to invalidate UK Registered Design in the name of Zap Ltd [2007] ECDR 10. To the extent that it matters (and it might not), the Australian Designs Office ("the ADO") has indicated that the informed user concept is an objective test where the user is an ordinary or typical member of a sample of users of the product who is reasonably informed, being neither barely informed nor fully expert: Apple Computer Inc (2007) 74 IPR 164 and Icon Plastics Pty Ltd [2007] ADO 2 as discussed in Review 2 Pty Ltd v Redberry Enterprise Pty Ltd [2008] FCA 1588 at [25] .


case_text: second item is in fact a group of items published by the Administrator and known as "Circulars". The Circulars do not have legislative or regulatory force. The Court cannot have regard to them under s 143 of the Evidence Act 1995 (Cth). What then is the status of the Circulars? One was tendered in evidence (Circular 0-4-26). Others (Circulars 0-2-11, 0-3-2, 0-3-4, 0-3-6, 0-4-18, 0-12-0 and 0-13-1) were provided to the Court following the hearing, although leave to reopen for the purpose of tendering them was neither sought nor granted. I have read the Circulars. They do not contain matters "so generally known that every person may be reasonably presumed to be aware" of them: Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9 ; (2002) 208 CLR 460 at [64] (per McHugh J). Accordingly, the Court cannot have regard to them under s 144 of the Evidence Act 1995 (Cth). Putting Circular 0-4-26 to one side, the other Circulars are therefore not properly before the Court and I have not relied on them in coming to the views expressed in these reasons. Circular 0-4-26 is entitled "Application for Component Registration Numbers (CRNs)". It "sets out the requirements and conditions regarding the application for, and issuing of, [CRNs] for vehicle components": par 1.1. Applicants for a CRN can be the component manufacturer, component supplier or the vehicle manufacturer: par 1.5. The CRN process is directed at registering vehicle components to be used in new motor vehicles. The Department of Transport and Regional Services (now known as the Department of Infrastructure, Transport and Regional Services) ("DOTARS") creates a register of components that are commonly used in new vehicles for administrative convenience. The Circular provides that the Administrator of Vehicle Standards will accept CRNs as evidence of compliance in Summary of Evidence submissions. What those submissions are or the use to which they are put, is not explained. In any event, CRNs will only be issued for components that are fitted to new motor vehicles or trailers (par 1.4) and for, inter alia, "(i) Lighting and light signalling devices (various ADRs)": par 1.6. However, CRNs will not be issued for lighting and light-signalling devices using UNECE (United Nations Economic Committee for Europe) regulation approvals (par 1.7) or for components exclusively for the aftermarket (par 1.8). The Circular then goes on to specify the manner in which an applicant applies for a CRN. For example, a separate application is required for each Make-Model and, in the case of combined lighting and signalling devices, separate applications are also required for each different function (eg stop, position or indicator): par 2.4.


case_text: then does one assess the overall impression of a design in infringement proceedings? As noted earlier, until recently there has been little Australian judicial consideration of the 2003 Designs Act. The principal cases to date include Review 2 Pty Ltd v Redberry Enterprise Pty Ltd [2008] FCA 1588 ; Review Australia Pty Ltd v Innovative Lifestyle Investments Pty Ltd (2008) 166 FCR 358 ; Review Australia Pty Ltd v New Cover Group Pty Ltd [2008] FCA 1589 and World of Technologies (Aust) Pty Ltd v Tempo (Aust) Pty Ltd (2007) 71 IPR 307.


case_text: to ground 3 in the court below, the federal magistrate was correct to say that there is no general obligation on the Tribunal, to conduct its own independent investigation of the appellant's claims. That proposition is now the subject of further authority by the High Court, in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (2009) 259 ALR 429. That authority confirms the proposition that the Tribunal did not have a general obligation to make its own independent inquiries. To the extent to which the appellant placed material before the Tribunal, the Tribunal did conduct a thorough investigation of that material. The Tribunal's reasons for decision run to 48 pages. They are detailed. The Tribunal spent a good deal of time listening to the appellant's case on the two days on which it conducted parts of its hearing. It reasoned in great detail about the difficulties it had in accepting the appellant's account of events that had occurred in relation to him in Bangladesh. Unfortunately, for the appellant, the Tribunal found that it could not accept the truth of most of that account. As to ground 4 in the court below, the appellant has not attempted to suggest in this Court that the federal magistrate was in error in relation to the Tribunal's reliance on independent information. It would have been necessary for the appellant to isolate exactly what items of information the Tribunal regarded as a reason, or part of the reason, for affirming the decision of the Minister's delegate, which it had failed to give particulars of, to the appellant, in accordance with s 424A. Only information that did not fall within one of the exceptions in subs (3) of that section could have been relied on. As to ground 5 in the court below, the three reasons given by the federal magistrate for rejecting that ground were all correct.


case_text: preference that the federal magistrate expressed for not following the judgment of another federal magistrate in SZNAV , has now been confirmed as correct by the judgment of the Full Court in Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109. In that case, the Full Court allowed an appeal from the judgment of the federal magistrate who had decided SZNAV . To the extent to which the grounds of appeal to this Court seek to raise different issues from those raised in the Federal Magistrates Court, the appellant cannot succeed on those issues. Manifestly, all of his grounds and his written submissions are seeking to agitate again, matters of fact, determined by the Tribunal. I repeat that this Court does not have the power to deal with those matters of fact. The Tribunal made its findings about the fabrication of police records in Bangladesh, and the unreliability of the documents tendered by the appellant. It is not for this Court to overturn those findings. They were matters of fact for the Tribunal only. The findings certainly do not support the conclusion that the Tribunal made its decision in bad faith, or came to the case with a preset mind. The Tribunal was doing its job of evaluating the evidence relating to the appellant's claim. The fact that the Tribunal did not find in the appellant's favour about his fear of persecution because of his political affiliations or his religion is not a ground for overturning the Tribunal's decision. Again, the Tribunal's function was to evaluate whether the appellant's expressed fear of persecution for those two reasons was a well-founded fear. In each instance, the Tribunal held that the fear was not well-founded. This Court cannot overturn that conclusion on a matter of fact. There is no suggestion that the Tribunal failed to understand the nature of persecution, or the test that it was to apply in reaching that conclusion. Nor is there any evidence of denial of procedural fairness. One ground again raised the issue of the reliability of the documents from Bangladesh. The appellant claimed in his written submission that the Tribunal did not comply with s 424A of the Migration Act , by inviting him to make a written comment before it made those findings. The Tribunal was not obliged to comply with s 424A of the Migration Act in respect of any information in relation to the findings about the documents. There was no information on which the Tribunal relied, as the reason or part of the reason for affirming the decision of the delegate of the Minister in that respect. There was no information, therefore, of which the Tribunal could give the appellant particulars, and seek his comment about the effect of the information. For all of these reasons, the appeal must be dismissed.


case_text: federal magistrate then went on to consider the various provisions of the Migration Act imposing procedural requirements on the Tribunal, to determine whether there had been any failure to comply with the requirements of those provisions. In doing so, his Honour declined at [60]-[61] to follow the judgment of another federal magistrate in SZNAV v Minister for Immigration & Anor [2009] FMCA 693. His Honour concluded that the Tribunal had not fallen into jurisdictional error by means of any failure to comply with any requirement of the provisions of the Migration Act . Both in his notice of appeal to this Court and in his outline of submissions, the appellant has raised three grounds. They do not address the grounds of the application to the Federal Magistrates Court specifically. Nor do they address themselves to the reasons for judgment of the federal magistrate. The first ground is that the Tribunal made its decision in bad faith. That is justified by reference to the Tribunal's findings that the appellant fabricated the documents concerning police records in Bangladesh and that the Tribunal did not believe that the documents from Bangladesh were reliable. The second ground is that the Tribunal failed to consider persecution on the basis of the appellant's Christian religion. The third ground is that the Tribunal failed to exercise its jurisdiction under the Act and the Federal Magistrates Court failed to identify that issue. This ground is particularised as involving a lack of procedural fairness. The denial of procedural fairness is exemplified by reference to the Tribunal's findings in relation to the documents from Bangladesh. In his oral submissions, the appellant has been keen to persuade me that the documents he tendered to the Tribunal were all genuine. He pointed to the relative ease of investigating the genuineness of those documents, particularly to the presence of telephone numbers in some of them, and to the failure of the Tribunal to conduct any such investigation. He submitted that the Tribunal came to the case with a preset mind.


case_text: appeal is from the judgment of the Federal Magistrates Court of Australia in SZNKU v Minister for Immigration & Anor [2009] FMCA 791. That judgment was delivered on 27 August 2009. The learned federal magistrate dismissed with costs an application by the appellant, seeking to set aside a decision of the Refugee Review Tribunal ("the Tribunal"), the second respondent to this appeal, signed on 10 March 2009 and delivered on 11 March 2009. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Citizenship ("the Minister"), the first respondent in this appeal, not to grant the appellant a protection visa. The appellant is a citizen of Bangladesh who arrived in Australia on 17 July 2008. On 28 August 2008, he applied for a protection visa. The decision of the Minister's delegate refusing to grant him that visa was made on 4 November 2008. The Tribunal conducted a hearing on two days, 17 February and 4 March 2009. By s 36 of the Migration Act 1958 (Cth) ("the Migration Act "), there is a class of visas to be known as protection visas. A criterion for a protection visa is that the applicant for the visa be a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol. The terms "Refugees Convention" and "Refugees Protocol" are defined respectively in s 5(1) of the Migration Act to mean the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to call those two documents, taken together, the "Convention". For present purposes, it is sufficient to say that, pursuant to the Convention, Australia has protection obligations to a person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country


case_text: The other basis upon which the learned Magistrate rejected the application was that there would be prejudice to public administration. His Honour relied on well known remarks of Wilcox J in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305, at 310 and following. Wilcox J, speaking of extensions of time generally and comparing the situation of public administration with that where merely private rights are involved, said (at 312): 'By contrast, in cases involving public administration, especially day-to-day matters such as personnel management, the public interest may well dictate refusal of an extension, even after only a short delay. ... An applicant concerned to challenge a decision which has implications for other people or for day-to-day public administration may properly be regarded as being under a heavier duty to act expeditiously than is an applicant who is aware that his case has no such implications.' 14 The case for the respondent was that the APSC is: 'only a relatively small agency and the reinstatement of Mr Twining would impact on its administration'. Evidence accepted by his Honour showed that the APSC's current financial year budget provided for a reduction in staff numbers which would continue for at least another three financial years, that at the time the hearing before his Honour there was only one vacancy at the APS 3/4 level (the level at which the appellant had been engaged), and other matters. His Honour accepted the submission that: 'There was no regular staff turnover such as expected in larger organisations. Although reinstatement of Mr Twining would not be an impossibility it would be difficult and a burden. An adjustment would need to be made to [the respondent's] budget and programs offered by [the respondent, I gather to persons in the Australian Public Service Commission] could be affected.' 15 Speaking for myself, I would not have attached the same weight to those matters as did his Honour. However, I am unable to say that for him to have taken that view lay outside the scope of the sound legal exercise of his discretion. 16 In the course of examination of the matter today, other aspects of prejudice to the respondent emerged. As I observed in the course of argument, to some extent these are co-extensive with questions that might arise in the Court's discretion as to whether a remedy might be granted if, otherwise, purely legal grounds of challenge to the termination decision were made out, and the matters could be more fully debated in that context. However, given the way the matter has proceeded including that, for the benefit of the appellant, I have been prepared to review his Honour's findings about the adequacy of the explanation without seeing the transcript, and have perhaps gone further than one ordinarily would in departing from the findings of a court at first instance which has had the benefit of hearing and seeing highly relevant evidence given I think that the fact that the matters might later be considered, if time were enlarged, does not prevent them being considered on the question of whether time should be enlarged. 17 One of the factors that motivated Mr Jones, the respondent's delegate, to dismiss the appellant was that he had displayed behaviour to other employees which had very much upset them and made working relationships difficult. The material in the appellant's own affidavits shows that at a time in early 2005 when, albeit in ignorance, he believed that he had no firm legal basis for obtaining a remedy in the courts, he had quite gratuitously, and offensively, abused two officers of the respondent, including the delegate, who were senior to him and quite inappropriately broadcast to other people his offensive and rather unrestrained criticisms of them. The appellant says he was upset, 'out of his mind with worry', about his position at the time. 18 Be that as it may, it is quite clear that it would be irresponsible to put him back in the Programs Group in which he was employed. That means that about 35 to 40 of the 130 positions in the respondent's organisation would not be available to him. The other officer whom he calumniated was the head of the Corporate Group, which comprises another 35 or 40 people. Much less offensive, but quite inappropriate remarks were also directed to the head of the respondent Commission. 19 If time were extended and if the appellant were to succeed, it would be in that environment that his reinstatement on probation for a period of about a month would occur. At the end of that month, if not before, a decision would have to be made about whether overall his conduct and behaviour had been such that he should be taken on permanently. To the extent that there would be difficulty about fitting him in, it would, by reason of his own conduct, be very greatly magnified. Notwithstanding the public interest in decisions affecting the termination of employment of persons in the public sector being regularly and lawfully made, it seems to me that, in the circumstances, there would be likely such a disruption of public administration that the public interest dictates refusal of an extension of time. 20 For these reasons, I consider that the decision of the learned federal Magistrate was correct, even though I would reach it by a slightly different route. 21 Leave to appeal will be granted. The appeal is dismissed with costs I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate: Dated: 14 March 2006 Solicitor for the Applicant: The applicant appeared in person Counsel for the Respondent: Mr H Burmester QC Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 16 February 2006 Date of Judgment: 16 February 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/129.html


case_outcome: applied

case_text: The principles of construction of international tax treaties are not in dispute: Thiel v Commissioner of Taxation [1990] HCA 37 ; (1990) 171 CLR 338 at 356 357 per McHugh J; Unisys Corporation Inc v Federal Commissioner of Taxation (2002) ATC 5146 ; Applicant 'A' v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225. Those principles permit the object and purpose of a treaty to be considered in construing it, where necessary.


case_text: To the extent DAPFI relies on the 'deeming' effect of the provisions of Div 974, it is important to note that those 'deeming' provisions should be construed 'strictly and only for the purpose for which they are resorted to': Federal Commissioner of Taxation v Comber (1986) 10 FCR 88 at 96; East Finchley Pty Ltd v Federal Commissioner of Taxation (1989) 20 ATR 1623 at 1643.


case_text: Neither Emu Bay Railway Company Limited v Federal Commissioner of Taxation [1944] HCA 28 ; (1944) 71 CLR 596 nor Federal Commissioner of Taxation v Firth [2002] FCAFC 95 ; (2002) 120 FCR 450 is a useful analogy with this case. 112 The taxpayer in Emu Bay Railway Company 71 CLR had issued a debenture, the interest on which was only payable out of its 'net income' (akin to profit). It sought to deduct interest payments on this debenture under s 51(l), even though none were made because the company had no net income. All that was decided in that case was that no interest expense was 'incurred' because the interest was contingent on net income, of which there was none.


case_title: Federal Commissioner of Taxation v Comber (1986) 10 FCR 88


case_text: DAPFI referred to the authoritative exposition of the relevant principles in the judgment of McHugh J in Applicant A 190 CLR applied to the interpretation of double tax treaties in Federal Commissioner of Taxation v Lamesa Holdings BV (1997) 77 FCR 597. In McDermott Industries (Aust) Pty Ltd v Federal Commissioner of Taxation [2005] FCAFC 67 ; (2005) 142 FCR 134 , a Full Court of Hill, Sundberg and Stone JJ (at [38]) summarised those principles in four sub-paragraphs: '. Regard should be had to the "four corners of the actual text". The text must be given primacy in the interpretation process. The ordinary meaning of the words used are presumed to be "the authentic representation of the parties' intentions": Applicant A [at 143] . . The courts must, however, in addition to having regard to the text, have regard as well to the context, object and purpose of the treaty provisions. The approach to interpretation involves a holistic approach. . International agreements should be interpreted "liberally". . Treaties often fail to demonstrate the precision of domestic legislation and should thus not be applied with "taut logical precision".'


case_text: Neither Emu Bay Railway Company Limited v Federal Commissioner of Taxation [1944] HCA 28 ; (1944) 71 CLR 596 nor Federal Commissioner of Taxation v Firth [2002] FCAFC 95 ; (2002) 120 FCR 450 is a useful analogy with this case. 113 Firth 120 FCR also concerned the deductibility of interest, in that case on a so-called 'capital protected' loan. The case does not bear on the interpretation of 'determined with reference to profits' in the Treaty. 114 The Commissioner submitted that the expression 'determined with reference to profits' is well able to accommodate a situation, such as this, where the calculation of the amount paid depends entirely upon the profits (here, the Adjusted Net Income) of the issuer. 115 In the Commissioner's submissions at para [104] above, it is contended that: (a) The whole of each partnership distribution was required by the terms of the partnership deed to be determined with reference to profits; and (b) there is no mechanism in the Treaty (or elsewhere) which permits apportionment.


case_text: Luca LP received interest income on its investments. Luca LP was treated as a company for Australian tax purposes (Div 5A of Pt III of the - ('the 1936 Act')) and paid tax at the rate of 30%. It distributed its after tax income to Industrie LP and DAPFI as general and limited partners respectively. 13 Under the terms of the Industrie Limited Partnership Deed dated 24 August 2005, as amended by amending deed dated 7 September 2005, the entitlement of DAPFI to annual receipts of income was to so much of the 'Adjusted Net Income' of each year as equalled the 'RLPI(US) Distribution Amount' for the year, subject to a proviso that if the Adjusted Net Income differed from the total of the RLPI(US) Distribution Amount and the GPI Distribution Amount payable to the general partners, the excess or shortfall should be shared pro-rata. 14 The 'RLPI(US) Distribution Amount' was calculated by multiplying DAPFI's capital contribution by the 'Agreed Rate,' which was Reuters BBSW less a stipulated spread. 84 Turning to object and purpose, Art 31 of the Vienna Convention on the Law of Treaties (the Vienna Convention), referred to in Koowarta v Bjelke-Petersen [1982] HCA 27 ; (1982) 153 CLR 168 at 265 per Brennan J (as he then was) as the 'leading and general rule of the interpretation of treaties', provides: '1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.' 85 In Applicant A 190 CLR at 253, McHugh J, after referring to what was said by Brennan J in Koowarta 153 CLR, said: 'Commentators differ as to the correct interpretation of Art 31. Differences of opinion exist as to the circumstances in which the "context ... object and purpose" of the treaty may be used to supplement the "ordinary meaning" of the treaty. Inherent in this debate is the question of whether the textual interpretation of the words, embodied in the phrase "ordinary meaning", should be afforded interpretative precedence. Some commentators have argued that the literal meaning has no precedence and that the object of the treaty must always be taken into account [O'Connell, International Law, 2nd ed (1970), vol 1, p 253]; some have argued that the two general levels of inquiry embodied in par 1 of Art 31 have a single combined operation [Brownlie, Principles of Public International Law, 4th ed (1990), p 628; Ris, "Treaty Interpretation and ICJ Recourse to Travaux Préparatoires: Towards a Proposed Amendment of Articles 31 and 32 of the Vienna Convention on the Law of Treaties:, Boston College International & Comparative Law Review, vol 14(1) (1991) 111]; and some have argued that words and phrases of a treaty are in the first instance to be construed according to their plain and natural meaning and that it is only when the result of such an inquiry is doubtful that one should look to a treaty's context, object and purpose [Shearer, Starke's International Law, 11th ed (1994), pp 435-436]. Australian decisions provide no clear answer as to whether Art 31 requires or merely allows recourse to the context, object and purpose of a treaty in interpreting one of its terms. It is clear that such recourse is, in some circumstances, permissible. On numerous occasions, Australian courts have sought to discern the purpose of a treaty so as to construe a treaty term [Koowarta [1982] HCA 27 ; (1982) 153 CLR 168 at 265-266; Thiel v Federal Commissioner of Taxation (1988) 21 FCR 122 at 160; Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 413; SS Pharmaceutical v Qantas [1991] 1 Lloyd's Rep 288 at 295-299]. What is not clear from the decided cases, however, are the circumstances which require or allow recourse to the context, object and purpose of a treaty. Nor have those cases clarified the nature of the relationship between the context, object and purpose of a treaty and the 'ordinary' textual analysis of one of its provisions.'


case_text: DAPFI referred to the authoritative exposition of the relevant principles in the judgment of McHugh J in Applicant A 190 CLR applied to the interpretation of double tax treaties in Federal Commissioner of Taxation v Lamesa Holdings BV (1997) 77 FCR 597. In McDermott Industries (Aust) Pty Ltd v Federal Commissioner of Taxation [2005] FCAFC 67 ; (2005) 142 FCR 134 , a Full Court of Hill, Sundberg and Stone JJ (at [38]) summarised those principles in four sub-paragraphs: '. Regard should be had to the "four corners of the actual text". The text must be given primacy in the interpretation process. The ordinary meaning of the words used are presumed to be "the authentic representation of the parties' intentions": Applicant A [at 143] . . The courts must, however, in addition to having regard to the text, have regard as well to the context, object and purpose of the treaty provisions. The approach to interpretation involves a holistic approach. . International agreements should be interpreted "liberally". . Treaties often fail to demonstrate the precision of domestic legislation and should thus not be applied with "taut logical precision".' 71 DAPFI submitted that the Commissioner's submissions depart from an application of these principles in two material respects: (a) They seek to confine reference to the 'context, object and purpose' to that of the Treaty as a whole, and to avoid reference to those considerations in interpretation 'of the treaty provisions'. Considerations of context and purpose are equally relevant to the interpretation of the various articles of a treaty, the course followed in McDermott at [40] and following; and (b) they are a fine example of the application of 'taut logical precision' to construction of the Treaty, not merely giving its words 'primacy' but largely excluding context and purpose. 72 A consideration of the interrelationship of the provisions of the Treaty (and other treaties following the same basic model) shows a concern with the substantive nature of the amounts over which the treaties allocate taxing rights (see for example the preference for economic substance over legal form in the conceptions of 'permanent establishment', 'business profits' and 'real estate'). Business profits, which are allocated to the taxing power of the country to which they are most closely economically connected, do not include amounts which are in substance investment income, whether rent, interest, dividends or royalties (Art 7(6)), and investment income is categorised according to the substantive (rather than the formal) rules of the domestic law. Articles 10(4), (6) and (7), 11(5), (9) and (10) and 12(4) and (5) illustrate this concern. 73 It would be an odd outcome that Art 11(9)(a), a provision whose origin manifestly lies in a purpose of confining Art 11 to what in substance regardless of its form is interest on a loan, should be so construed as to exclude from the Article an amount which in substance though not in form is interest. Such a result would seem to be contrary to the 'context object and purpose' of the provision. 75 When regard is had (as properly it should, McDermott at [41]) to the history of the provisions, it is apparent that Art 11(9)(a) served the purpose of protecting US objectives, but no material purpose in the protection of Australian taxes. Amounts 'in the nature of interest' which were (or were deemed to be) distributions on shares were for treaty purposes allocated to Art 10, as 'income from shares' (Art 10(6)), which might be subjected to withholding tax at 15%, and were excluded from Art 1l by the concluding words of Art 11(5); but Australia in any event limited its withholding tax on such amounts to 10%, treating them as the yield on debt interests. Article 11(9)(a) thus had no relevant role to play in an Australian context, and while it was as the Commissioner says 'a power allocated to each Treaty country', its construction is more illuminated by the purpose which as a matter of agreement, inserted 'as the necessary price paid for international political comity' ( Applicant A at 256) it served in US tax policy than by reference to Australian tax provisions. 76 DAPFI submitted that the Commissioner also seeks support in the 'actual text' of the Treaty, but does so without regard to the whole of the text. In looking to the 'four corners of the actual text', one construes the text in the light of its purpose; as McHugh J said in Applicant A at 253, 'the ordinary meaning of the words are not to be determined in a vacuum removed from the context of the treaty or its object or purpose'. If the words are consistent with that purpose, the construction should serve to fulfill it, not to frustrate it. 77 So when reading Art 11(5), while it is accurate as a matter of taut logical precision to say (see the Commissioner's submissions at [47] above) that it applies to 'any payment which is treated as interest under domestic law, regardless of legal form': (a) To do so would not be consistent with the purpose of the provision, and (b) it would be inaccurate to say that the Treaty recognises no difference between what is in legal form interest and what is in substance interest: the words 'as well as', which for the purpose of the Treaty add to interest on 'securities bonds and debentures' what is 'subjected to the same taxation treatment' as interest, clearly acknowledge two categories of payments formal and substantive 'interest' as being within the operation of the Article. In this context, the role of Art 11(9)(a) is to exclude what substantively is not interest from its scope: that is, what in form is interest but in substance is profit share. The text of Article 11(9)(a) bears this out: it deals with payments 'determined with reference to profits', a qualifier appropriate to what in form is framed as interest rather than profit share.


case_text: As to the Commissioner's second contention, the absence of express provision for apportionment in Art 11(9)(a) is not an exclusion or prohibition of an apportionment. A global sum payable under a contract may be apportioned where the commercial reality is that only part of the payment can be regarded as being determined with reference to profits; the apportionment should be done on the basis of a realistic estimate on sensible commercial grounds (cf., Roadshow Distributors Pty Ltd v Commissioner of State Revenue [1998] 1 VR 523 at 529). This approach is all the more appropriate in the case of a treaty, which should not be construed in a narrow technical way. 118 Here the commercial reality is that the whole payment was an indirect receipt of the interest paid by CBA, and so was interest calculated without regard to any substantive 'profit' calculation. But insofar as there is a calculation with reference to profits, only part of the payment is so calculated, because what is payable includes a basic interest amount identified in the formula, and the apportionment can be readily done in view of the way the distributions were calculated. 119 For my part, I cannot accept the proposition that the 'commercial reality' (whatever that means, but presumably a synonym for 'economic substance') is that the whole payment (the distribution from Industrie LP to DAPFI) was an indirect receipt of the interest paid by CBA. For a start, Industrie LP was not a mere interposed conduit between CBA and DAPFI. Indeed, Industrie LP did not lend to CBA; it invested the whole of its funds in another NSW limited partnership, Luca LP: see [11] above. And even Luca LP did not lend the whole of its funds to CBA; $2 million was lent at interest to other financial institutions.


case_title: Thiel v Commissioner of Taxation [1990] HCA 37 ; (1990) 171 CLR 338


case_title: Unisys Corporation Inc v Federal Commissioner of Taxation (2002) ATC 5146


case_text: The principles that govern associated or accrued jurisdiction have been discussed by the High Court of Australia in a number of decisions, including Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457 at 474-5, Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 (" Fencott ") at 607-8, Stack v Coast Securities (No 9) Pty Ltd [1983] HCA 36 ; (1983) 154 CLR 261 at 294, Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511 at 585-6, and Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1 ; (2001) 204 CLR 559 at 585-6.


case_text: The principles that govern associated or accrued jurisdiction have been discussed by the High Court of Australia in a number of decisions, including Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457 at 474-5, Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 (" Fencott ") at 607-8, Stack v Coast Securities (No 9) Pty Ltd [1983] HCA 36 ; (1983) 154 CLR 261 at 294, Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511 at 585-6, and Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1 ; (2001) 204 CLR 559 at 585-6. 10 In Fencott , Mason, Murphy, Brennan and Deane JJ, in a joint judgment, sought to clarify what would be considered a "separate and disparate" matter. At 607-608, their Honours said: "Perhaps it is not possible to devise so precise a formula that its application to the facts of any controversy would determine accurately what claims are disparate and what claims are not. Whatever formula be adopted as a guide - and the formula of 'common transactions and facts' is a sound guide for the purpose - it must result in leaving outside the ambit of a matter a 'completely disparate claim constituting in substance a separate proceeding', a non-federal matter which is 'completely separate and distinct from the matter which attracted federal jurisdiction', or 'some distinct and unrelated non-federal claim'" (Citations omitted) Their Honours continued at 608: "The scope of a controversy which constitutes a matter is not ascertained merely by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in controversy are defined and the claims for relief are set out. But in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter." In short, this Court will have jurisdiction to hear and determine the cross-claim in so far as it concerns the claimed sixth publication defamation, even though the claim raises no federal claim, if it shares a "common substratum of facts" with the principal proceeding, or if the claims are related in the sense that the determination of one is essential for the determination of the other.


case_title: Stack v Coast Securities (No 9) Pty Ltd [1983] HCA 36 ; (1983) 154 CLR 261


case_title: Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511


case_title: Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1 ; (2001) 204 CLR 559


case_text: The respondents relied on Hunt Australia Pty Ltd v Davidson's Arnhemland Safaris (2000) 179 ALR 738 (" Hunt ") in support of the proposition that this proposed claim fell within the associated jurisdiction. In Hunt , a Full Court held that, on the facts of that case, a defamation claim was not completely separate and distinct from a claim under s 52 of the Trade Practices Act 1974 (Cth) and therefore the court had jurisdiction to decide it. The circumstances of Hunt , though different, are not completely dissimilar to the present case. The parties in Hunt were competitors and the dominant purpose of the defamatory publication was, so the court at first instance found, to injure the other party. The Court held that there was a common substratum of facts even though the publication that gave rise to the misleading and deceptive conduct claim was separate from the publication that gave rise to the defamation claim: see Hunt at 746 [30]. 12 I accept that the alleged sixth publication forms part of the one controversy and, for the reasons I am about to give, can be said to arise out of the same substratum of facts. The respondents' case is that the applicants have waged a campaign of defamatory conduct against them as part of the applicants' attempt to seize market share from the respondents. The cause of action with respect to the sixth publication is related to the other defamation claims pleaded by them. Similar factual and legal issues arise in respect of all the respondents' defamation claims. The applicants conceded that at least some of the respondents' defamation claims arise out of the same circumstances as the federal matters pleaded by them. In any case, as already noted, the applicants no longer contest the court's jurisdiction over the first to fifth defamation claims. I can discern no relevant distinction between the claim with respect to the sixth publication and the other claims. It is to be borne in mind that there is an issue as to whether the applicants were motivated by express malice in making the first publication; and there is a common temporal connection with respect to all the defamation claims and the remaining issues in the proceeding. 13 Accordingly, I would grant leave to the respondents to amend their pleading in the manner they have sought.


case_text: As noted earlier, the applicants also sought an order for the separate determination of certain questions under O 29 r 2 of the Federal Court Rules . The principles that govern the circumstances in which an order of this kind may be made are well established. They are discussed by Branson J in Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 at [7] and [8] and by French J in Olbers Co Ltd v Commonwealth (No 3) [2003] FCA 651 at [7] . In discussion in court today, the parties agreed upon what I consider, in accordance with these principles, to be an appropriate separation of the questions that arise for determination in the proceeding. Accordingly, I would make the order sought in the terms discussed in court.


case_title: Olbers Co Ltd v Commonwealth (No 3) [2003] FCA 651


case_outcome: followed

case_text: The information which it is claimed should have been provided is not specified in the Notice of Appeal. Insofar as it relates to the relationship between the Hong Kong police and the PSB, such information is regarded as country information; that is, it is information upon which the Tribunal may take cognisance and pursuant to s 424A(3) there is no obligation upon it to furnish such information to the appellant. Had the Tribunal relied on material other than country information which had not been furnished to the appellant, and had not been provided by the appellant to the Tribunal, the Tribunal would have been obliged to provide such information to the appellant: see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) ALR 162 per Gleeson CJ at [5]. However, in this instance there is simply no such material relied upon by the Tribunal. 21 At the hearing before me the appellant sought to rely upon several documents purportedly issued by the PSB. These documents comprised of an arrest warrant, a 'wanted' notice, purportedly arising from his importation of bibles into the PRC, and a certificate of baptism. The appellant did not produce the originals of such documents and said that they were at home. He also referred the Court to an affidavit but he did not rely upon it. 22 The three documents were not placed before the Tribunal and it is unclear whether they were placed before Emmett FM as Her Honour's judgment does not refer to them, and the transcript of the hearing before Her Honour has not been tendered. 31 The Court notes that consistent with the decision of the High Court in SAAP the Refugee Review Tribunal should be joined as a second respondent. 32 The first respondent has sought an order that the appellant pay its costs in the sum of $1700. Since this is within a realistic range for costs the Court will make such order. I certify that the preceding thirty- two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 30 November 2006 Counsel for the Respondent: S McNaughton Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 24 November 2006 Date of Judgment: 30 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1627.html


case_text: No evidence has been provided to support the claim of prejudice and the appellant merely said that the Tribunal had made a judgment 'out of its own mind' rather than upon the evidence. The principles relating to allegations of bias were considered in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749. In that decision the Full Court made it plain that allegations of bias are serious and should be clearly alleged and proved (see at [43]). The allegations in the present case are unsupported by any evidence and accordingly this ground must be dismissed.


case_text: Although the function of this Court is to review purported errors of law of the Federal Magistrate rather than those of the Tribunal: see SZAJB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 782 at [4] , the Court nevertheless allowed the tender of the documents in order to understand the argument of the appellant. 25 The appellant was asked why he had not produced the three documents to the Tribunal. The appellant claimed that he was not given enough time to do so. He also claimed that he was too scared to produce them. In fact, the Tribunal questioned him extensively in relation to the very issues which are the subject of the documents, namely the appellant's alleged involvement in the activity of importing bibles into the PRC. 26 The appellant did not argue that the Tribunal erred in finding that he was detained in the PRC for a short period only because he happened to be at his friend's home when the PSB called. Nor did he dispute the Tribunal's finding that the PSB had not questioned him in relation to the smuggling or importing of bibles to the PRC and that when they realised he was a visitor from Hong Kong they released him. Accordingly, the Tribunal correctly concluded that the appellant was not a person of interest to the PSB.


case_text: Court also has an implied jurisdiction to set aside a bankruptcy notice as an abuse of process: Re Sterling; Ex parte Esanda Ltd [1980] FCA 61 ; (1980) 44 FLR 125. An abuse of process may be made out if the purpose in issuing the bankruptcy notice is to put pressure on a debtor to pay the debt rather than to invoke the Court's jurisdiction in relation to insolvency: Brunninghausen v Glavanics [1998] FCA 230 ; Killoran v Duncan [1999] FCA 1574 at [12] per Gyles J. See also: Maxwell-Smith v S & E Hall Pty Ltd [2006] FCA 825 , 233 ALR 81 ; Cavoli v Etl [2007] FCA 1191 at [17] , 5 ABC(NS) 363 at 369 per Heerey J; Slack v Bottoms English Solicitors [2002] FCA 1445 at [15] to [18] per Spender J; Davidova v Murphy [2009] FCA 601 at [88] . It is also an abuse of process for a judgment creditor to pursue bankruptcy proceedings " for the purpose of stifling litigation ": Bayne v Baillieu; Bayne v Riggall [1908] HCA 39 ; (1908) 6 CLR 382 at 396 per Griffith CJ.


case_title: Brunninghausen v Glavanics [1998] FCA 230


case_title: Cavoli v Etl [2007] FCA 1191 , 5 ABC(NS) 363


case_title: Danielsen v Onesteel Manufacturing Pty Ltd [2009] SASC 56 , 224 FLR 319

case_text: the outset of the hearing of the appeals on 12 October 2009, Ms Mead sought to file in her appeal a Notice of a Constitutional Matter pursuant to s 78B of the Judiciary Act 1903 (Cth). Notwithstanding the terms in which that Notice was expressed, Ms Mead explained that it was not intended to raise any matter arising under the Constitution in this Court. Rather than this Court being under a possible " duty ... not to proceed ", Ms Mead was anxious for this Court to hear and resolve her claims immediately. Such a position, it may be noted, was inconsistent with the application to have the appeals in effect adjourned. The Notice was, in any event, understood as being more directed to the alleged failure on the part of the Federal Magistrate to give proper weight to Ms Mead's inability to comply with the 21 day period prescribed in the bankruptcy notice due to her being in custody. In the absence of any matter arising under the Constitution being raised in this Court, the appeal proceeded to be heard on 12 October 2009. Had it been necessary to resolve an alternative contention, namely that the Notice imposed upon this Court a " duty ... not to proceed ", that contention would have been rejected: cf Deputy Commissioner of Taxation v Warrick (No 2) [2004] FCA 918 at [103] , [2004] FCA 918 ; 56 ATR 371 at 396 per French J; Danielsen v Onesteel Manufacturing Pty Ltd [2009] SASC 56 at [30] , [2009] SASC 56 ; 224 FLR 319 at 327 to 328 per Gray J; Pham v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 179.


case_title: Davidova v Murphy [2009] FCA 60


case_title: Deputy Commissioner of Taxation v Warrick (No 2) [2004] FCA 918 , 56 ATR 371


case_text: construing these provisions His Honour Justice Lindgren in Re Glew ; Glew v Harrowell of Hunt & Hunt Lawyers [2003] FCA 373 , 198 ALR 331 at 333 to 334 reviewed the authorities and observed (some citations omitted): [9] There are authorities suggesting that Glew and Tresidder must satisfy me of the following interrelated and sometimes overlapping matters: that they have a "prima facie case", even if they do not adduce evidence which would be admissible on a final hearing making out that case ... that they have "a fair chance of success" or are "fairly entitled to litigate" the claim ... and that they are advancing a "genuine" or "bona fide" claim ... It may be that the first and second formulations are intended to cover the same ground. In Brink [ Re Brink; Ex parte Commercial Banking Co of Sydney Ltd [1980] FCA 78 ; (1980) 30 ALR 433 , 44 FLR 135] Lockhart J treated (at ALR 438 9; FLR 141) the reference to a "prima facie case" ... as a reference to "a fair chance of success". ... [11] Plainly, in order to "satisfy" the court for the purposes of s 40(1)(g) , the debtor is not required to prove, as on a final hearing, the asserted entitlement to recover from the creditor. Accordingly, evidence tendered on an application to set aside is to be tested for admissibility, not as if the proceeding were one in which the debtor's claim was being finally determined, but by reference to the question whether the court should be satisfied that the debtor has a claim deserving to be finally determined. This was subsequently characterised by His Honour at [64] as a " relatively low threshold ".


case_title: Goldberg v Morrow [2005] FCA 1038

case_text: the certificate of taxation as issued under the seal of the Family Court correctly identified the amount of the judgment and the interest then payable. A costs order may constitute a " final order " for the purposes of s 40(1)(g): Goldberg v Morrow [2005] FCA 1038 at [19] per Crennan J. The order upon which the bankruptcy notice was here issued is considered to be a " final order ". A submission that the certificate of taxation had been fraudulently or improperly obtained is without substance. The factual foundation for the attack upon the certificate focussed upon the date of judgment. No date of judgment is set forth in the certificate itself. An order subsequently made on 28 November 2003 by the Family Court, however, corrected under the " slip rule " the date of judgment from 18 October 2001 to 2 November 2001. But that correction, it is considered, does not vitiate the bankruptcy notice. Again, there was nothing on the face of the bankruptcy notice which was " capable of misleading " Ms Mead.


case_text: present relevance is whether a mistake in the name of the creditor vitiates a bankruptcy. In Re Hansen; Ex parte Hansen (1985) 4 FCR 590 Beaumont J concluded that there was a formal defect in a bankruptcy notice issued in the name of " Mortgage Guaranty Insurance Corporation of Australia Limited ". That company had, however, changed its name to " MGICA Limited ". His Honour at 592 concluded: Strict compliance with the requisites of a bankruptcy notice is essential to its validity and if the notice is capable of misleading the debtor in a material respect, the court will not inquire whether the debtor has in fact been misled: it is sufficient that he could be misled ... He concluded at 594 as follows: In my opinion, it is essential to the validity of a bankruptcy notice that the judgment debtor be in no reasonable doubt as to the identity of the judgment creditor. In the present case, the judgment creditor was identified by a name which it had abandoned some considerable time previously. That name was quite different from the name of the judgment creditor at the time of issue of the bankruptcy notice and the judgment debtor could hardly be expected to connect the two corporate names. The judgment debtor could thus have been misled as to the identity of the party with whom he had to deal in order to comply with the requirements of the bankruptcy notice. The notice was accordingly defective ... Similarly, in McWilliam v Jackson [2000] FCA 175 , 96 FCR 561 Wilcox J concluded that a bankruptcy notice that identified the creditor as "Anthony Jackson & Ors" rather than "Anthony Jackson" was defective.


case_title: Killoran v Duncan [1999] FCA 1574


case_text: substantive defect in a bankruptcy notice may result in its invalidity. In Kleinwort Benson Australia Ltd v Crowl [1988] HCA 34 ; (1988) 165 CLR 71 Mason CJ, Wilson, Brennan and Gaudron JJ reviewed the authorities and concluded at 79 to 80 (citations omitted): The authorities show that a bankruptcy notice is a nullity if it fails to meet a requirement made essential by the Act, or if it could reasonably mislead a debtor as to what is necessary to comply with the notice ... In such cases the notice is a nullity whether or not the debtor in fact is misled ... If the amount specified in a bankruptcy notice is in fact due and payment is claimed in accordance with the judgment, the essential requirements of s. 41(2)(a)(i) — the only requirements presently relevant — are met. Understatement of the amount due, whether it be an understatement of the judgment debt or of interest payable thereon, will thus constitute a defect which is substantive rather than formal only if the understatement is objectively capable of misleading the debtor as to what is necessary for compliance with the notice. It may be that, in a given case, understatement is capable of misleading the judgment debtor particularly if the notice is capable of producing uncertainty as to whether the debtor is required to pay the amount in fact due or the amount specified in the notice. In such a case uncertainty arises, not merely from the understatement, but from the understatement in the context of the particular bankruptcy notice. No such uncertainty arises if it is clear that payment of the amount specified in the notice will constitute compliance with the notice. It is " the capacity of the bankruptcy notice to mislead the debtor to whom the notice is directed that matters, not some hypothetical debtor ": Re Wimborne; Ex parte The Debtor (1979) 24 ALR 494 at 500 per Lockhart J.


case_title: Kyriackou v Shield Mercantile Pty Ltd [2004] FCA 490 , 138 FCR 324

case_text: in Re McSwiney; Ex parte Davies (unreported, FCA, Beaumont J, P 1611 of 1986, 24 November 1986) Beaumont J concluded that a bankruptcy notice was not defective by reason of the debtor being identified as " Trevor John McSwiney " rather than " Trevor Peter McSwiney ". His Honour concluded that "... the defect is cured by s 306(1) ". Section 306 of the Bankruptcy Act provides as follows: Formal defect not to invalidate proceedings (1) Proceedings under this Act are not invalidated by a formal defect or an irregularity, unless the court before which the objection on that ground is made is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of that court. (2) A defect or irregularity in the appointment of any person exercising, or purporting to exercise, a power or function under this Act or under a personal insolvency agreement entered into under this Act does not invalidate an act done by him or her in good faith. Formal errors in a bankruptcy notice do not result in its invalidity unless they cause " substantial injustice ": Kyriackou v Shield Mercantile Pty Ltd [2004] FCA 490 at [37] , [2004] FCA 490 ; 138 FCR 324 at 336 per Weinberg J.


case_title: Maxwell-Smith v S & E Hall Pty Ltd [2006] FCA 825 , 233 ALR 81


case_title: Re McSwiney; Ex parte Davies (unreported, FCA, Beaumont J, P 1611 of 1986, 24 November 1986)


case_title: McWilliam v Jackson [2000] FCA 175 , 96 FCR 561


case_outcome: affirmed

case_title: Mead v Mead [2009] FMCA 637

case_text: proceeding NSD 774/2009 the Appellant, Ms Yang, appeals against a decision of a Federal Magistrate delivered on 15 July 2009: Yang v Mead [2009] FMCA 636. In proceeding NSD 775/2009 the Appellant, Ms Mead, appeals against a decision of the same Magistrate delivered on the same date: Mead v Mead [2009] FMCA 637. Finally, the fact that Ms Mead was in custody when the bankruptcy notice was served does not relieve her of the obligation to comply with the terms of the notice " within 21 days ". And, in any event, she in fact commenced proceedings in the Federal Magistrates Court within that period: [2009] FMCA 637 at [3] . The challenge to the validity of the bankruptcy notice served upon Ms Mead is thus rejected. Before the Federal Magistrate Ms Mead claimed that she had a " counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt " within the meaning of and for the purposes of s 40(1)(g) of the Bankruptcy Act . The application to set aside the bankruptcy notice as filed in the Federal Magistrates Court claimed this " counter-claim, set-off or cross demand " in the following terms: 1. ... 2. ... 3. Cross claim husband breached marriage contract, I singly looked after children 12 years. 4. Set aside & cross claim husband money I put in $446848 Annexure D prior to marriage to purchase Ermington home. 5. Set aside & cross claim husband money I put in $445059 Annexure D by selling Ryde unit at 1/3 Hatton Street Ryde 2112 and others. The reasons for decision of the Federal Magistrate address both: two " claims " referred to in the application — namely, one for $446,848 and the other for $445,059; and an application that an order be made that, as the Federal Magistrate described it, " Mr Mead and his solicitors pay her $892,907 and be reported 'to the law society and bar association to refrain their wrongful and unethical actions '". The sum of $892,907 was said to be the total of $446,848 and $445,059. The total does not correspond. The sum of $446,848 was said to consist of an amount of $60,000 allegedly owed to Ms Mead since 15 September 1982 and interest. The $60,000 was said to be the contribution she had made in 1982 in connection with the purchase of a former matrimonial home. The sum of $445,059 was comprised of a sum of $126,838.73 (claimed to have been contributed to the marriage on 26 April 1994 through a company called Hypec Electronics Pty Ltd) together with interest.


case_title: CAM v LGM [2009] FamCA 251

case_text: should be noted that any entitlement to monies said to be owed to Ms Mead from her former husband has been the subject of detailed consideration by the Family Court: CAM v LGM [2009] FamCA 251. Indeed, O'Ryan J there concluded in part as follows: 2357. Both the Husband and the Wife worked very hard to establish and maintain what became a very successful business. This effort enabled significant and valuable assets to be accumulated. However subsequent to the separation of the Husband and the Wife there ensued a bitter and protracted matrimonial conflict. The conflict has been played out in numerous courts. There has now been an extraordinary dissipation of ascertained assets that the Husband and the Wife accumulated with the result that the majority of the identified wealth has gone. As well, as I have said before, the public cost is incalculable. Further, the Wife has been imprisoned and that experience is but one of the destructive outcomes. There are two children who were hardly mentioned but who must be aware of and affected by the enormity of the conflict between their parents. I cannot adequately explain it. However it may be that the explanation is simply that it is a case about money and thus perhaps the conflict has no boundaries. 2358. Therefore coming back to what this case is about, I have no doubt that the Wife has undisclosed assets and they are probably located overseas and will never be ascertained. The assets are probably located in Taiwan and the ability of the Wife to control and deal with such assets is assisted by the efforts of various people some of whom are within the jurisdiction and some of whom are not. I am also of the opinion that the actions of the Wife, aided by Grace Yang, the late Mr Yang, Mrs Yang and others to undermine any possible interests and claims of the Husband have resulted in an extraordinary waste of ascertained assets that were accumulated by the efforts of the Husband and the Wife. That was the conclusion of an experienced Judge of the Family Court who had heard the evidence relevant to the proceedings for a period of over 70 days. The reference in Ms Mead's application to the " Ermington home " and the " Ryde unit " were references to property the subject of consideration by the Family Court, as were the entitlements said to arise in respect to Hypec Electronics Pty Ltd. Due to her being in custody, Ms Mead contends that she was not able to attend the greater proportion of that hearing. But she did attend in person or by videolink from her place of custody to the Family Court on each day of the hearing. The learned Federal Magistrate whose decision is now under appeal had also considered the submissions sought to be advanced by Ms Mead and Ms Yang when challenging the bankruptcy notices now in issue. There is also a protracted history of litigation between the parties to the present proceedings, and related entities, in the Supreme Court of New South Wales.


case_title: Pham v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 179


case_title: Slack v Bottoms English Solicitors [2002] FCA 1445


case_title: Re Sterling; Ex parte Esanda Ltd [1980] FCA 61 ; (1980) 44 FLR 125


case_title: Re Wimborne; Ex parte The Debtor (1979) 24 ALR 494


case_title: Yang v Mead [2009] FMCA 636

case_text: proceeding NSD 774/2009 the Appellant, Ms Yang, appeals against a decision of a Federal Magistrate delivered on 15 July 2009: Yang v Mead [2009] FMCA 636. In proceeding NSD 775/2009 the Appellant, Ms Mead, appeals against a decision of the same Magistrate delivered on the same date: Mead v Mead [2009] FMCA 637. The Federal Magistrate was not satisfied that Ms Yang " had a counter-claim, set-off or cross demand that came within s.40(1)(g) of the Act that should be determined ": [2009] FMCA 636 at [19] . The Notice of Appeal as filed in this Court by Ms Yang has much in common with the Notice of Appeal as filed by Ms Mead in her own appeal. Again the same approach has been pursued of attempting to discern in any of the purported " Grounds of Appeal " whether there is any error in the reasons for decision of the Federal Magistrate or whether Ms Yang has any " counter-claim, set-off or cross demand " which has not hitherto been addressed. None can be discerned. Whatever may have been the difficulties confronting Ms Yang when before the Federal Magistrates Court, no such difficulties were claimed in this Court. Her appeal was presented on her behalf by Ms Mead.


case_text: 1 December 2008, for reasons which I then published, I made a number of orders directed to the granting to the appellant of leave to appeal against the judgment of the Federal Magistrates Court given on 12 November 2007: see SZKCE v Minister for Immigration and Citizenship [2008] FCA 1814. Leave to appeal was granted on one ground only, namely "the Federal Magistrates Court erred in concluding that no jurisdictional error was apparent in the Refugee Review Tribunal's (the Tribunal) decision in that the Tribunal had erred by having regard to the conduct of the appellant in Australia when determining her application for a protection visa. In so doing, the Tribunal failed to comply with the stipulation made in s 91R(3) of the Migration Act 1958 (Cth) (Migration Act) that such conduct must be disregarded". The Appellant subsequently filed and served a notice of appeal specifying that nominated ground of appeal. The background to the Appellant's application for a protection visa together with the course of subsequent proceedings in the Refugee Review Tribunal, in the Federal Magistrates Court and in this Court are set out in my reasons for judgment in respect of the leave to appeal application. These reasons for judgment should be read in conjunction with the reasons for judgment which I gave in respect of that leave to appeal application.


case_text: the time when I granted leave to appeal there was a basis for apprehending by analogy as between the circumstances of the Appellant's case and those in SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 ; (2008) 170 FCR 515 that an arguable case for the granting of leave to appeal existed. An application for special leave to appeal by the Minister in SZJGV was then pending in the High Court of Australia. In the interval which has passed between 1 December 2008 and today the High Court has, in respect of SZJGV , granted special leave to appeal to the Minister, heard the appeal and, on 30 September 2009, determined the appeal: see Minister for Immigration and Citizenship v SZJGV (2009) 259 ALR 595. The High Court, by majority, allowed the Minister's appeal in SZJGV . In so doing, the High Court reversed the result before a Full Court of this Court which had provided the foundation for a conception that the present Appellant had an arguable case for a grant of leave to appeal.


case_title: Minister for Immigration and Citizenship v SZJGV (2009) 259 ALR 595


case_text: In these circumstances the Court of its own motion listed the matter for a directions hearing on 9 April 2008. At that directions hearing the Court directed the parties to file and serve submissions in relation to the disposition of the application pursuant to s 190F(6) of the Native Title Act on or before 7 May 2008. Subsequent to this date and in light of the Full Court's decision in the matter of Gudjala People # 2 v Native Title Registrar [2008] FCAFC 157 delivered on 27 August 2008, parties were invited by the Court to file and serve any further submissions prior to the hearing of the application. 5 On 21 May 2008 the applicant filed submissions in relation to all the Collard applications currently before the Court today ('the Collard Submissions') pursuant to the Order of the Court made on 9 April 2008. 6 The effect of the Collard submissions across the applications appears to be to the effect that the Court should not dismiss them under s 190F(6) of the Native Title Act because they are likely to be withdrawn in exchange for some form of recognition by the South West Aboriginal Land and Sea Council. It is not said in what way that is to be achieved or the terms in which it might be achieved. Somehow, it is said, it would recognise the status of Mr and Mrs Collard who are the Applicants.


case_text: Whether an award for costs is apportioned between the parties is a matter for judicial discretion: s 43(2) of the Federal Court of Australia Act 1976 (Cth). In the ordinary course of litigation costs follow the event; that is, unless special circumstances exist to order otherwise, the successful party should be reimbursed its costs of the litigation: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 48-134 at 48-136; Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 271; Beecham Group PLC v Colgate-Palmolive Pty Ltd (2005) 66 IPR 273 at 274; TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (No 3) [2005] FCAFC 194 at [2] .


case_title: Cretazzo v Lombardi (1975) 13 SASR 4

case_text: When apportioning costs, however, a Court should be mindful not to discourage litigants from canvassing all material issues for fear of an adverse costs order: Cretazzo v Lombardi (1975) 13 SASR 4 at 12. Equally, litigants should not be rewarded for the injudicious pursuit of issues without substance. 13 In this case, I consider it appropriate to apportion the costs to some extent. Having regard to the authorities and the submissions of the parties summarised above at [5]-[9], I find that it is appropriate to reduce the costs award by 10%. 14 Accordingly, the order is that the respondents pay 90% of the costs of the applicant in these proceedings. I direct the parties to liaise with my associate to arrange further directions in the matter after Austal's application for leave to appeal or, if leave is granted, Austal's appeal from the orders made on 20 July 2007, is determined. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 10 August 2007 Counsel for the Applicant: Mr C. Dimitriadis Solicitor for the Applicant: Spruson & Ferguson Lawyers Counsel for the Respondent: Dr L. Duncan Solicitor for the Respondent: Griffith Hack Date of Judgment: 10 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1141.html


case_title: Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261


case_title: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 48-134