case_title: McGuren v Simpson [2004] NSWSC 35

case_text: The requirement of written notice is to be construed in light of the fact that this is a commercial agreement made between two companies engaged in the computer software business. I would be blinding myself to commercial and technological realities to find that an email communication in the present circumstances was not written notice; McGuren v Simpson [2004] NSWSC 35 at [20] [21]. 50 There was no suggestion that the email was not received. 51 Hume submitted that the letter of 22 December 2006 was ineffective to terminate the Distributorship Agreement because it did not convey an unequivocal election. This submission focussed upon the use of the words "intention to terminate". This was said to amount to an indication of an intention to send a further notice, at a future date, actually terminating the agreement.


case_outcome: referred to

case_title: Townsend Carriers Ltd v Pzifer Ltd (1977) 33 Prop & Comp R 361

case_text: I should add that it is unnecessary for such a notice to disclose the agency; Townsend Carriers at 365. In any event, the letter of 22 December 2006 stated that the solicitors acted for Exact and that "our client" notifies its intention to terminate. 28 For reasons stated under Issue 2, Article 20(3) did not preclude the giving of notice to an agent, provided of course that the agent had authority to receive it. 29 The same principles of agency apply to the giving and receipt of a notice. Megarry VC said in Townsend Carriers at 365 that he did not "think that the principle it is more blessed to give than to receive is part of the law of landlord and tenant." Nor in my opinion is it part of the principles that apply to the exercise of a contractual power of termination of a commercial contract. 30 Before turning to the principles of agency, it is necessary to deal with the circumstances in which the letter was physically delivered to Hume's solicitors. 31 I am satisfied by the evidence of Ms Naylor, a paralegal employed by Bakers, that she delivered the letter to the offices of the Hume companies' solicitors, Messrs Home Wilkinson Lowry, shortly before noon on 22 December 2006. I am also satisfied that the receptionist accepted service even though the solicitor on the record, Mr Webeck, was not in the office. The affidavit of Ms Cameron does not establish the contrary position.


case_outcome: cited

case_title: Young v Lamb (2001) 10 BPR 97867

case_text: Townsend Carriers Ltd v Pfizer Ltd ( 1977) 33 Prop & Comp R 361 is authority for the proposition that where an agreement does not preclude the giving of notice by an agent, the notice can be given by the agent in its own name; at 365 per Megarry VC. See also Young v Lamb (2001) 10 BPR 97867 at [36] [38] per Stein JA (Mason P & Hodgson JA agreeing). 22 Counsel for Hume sought to advance an argument that the right of "either party" to terminate under Article 20(3) precluded notice by an agent. This submission was based upon the distinction drawn in Article 18(2) between "the Distributor" and its "employees, agents and advisors". 23 However, in my opinion, Article 18(2) must be read in its own context. It provides for the obligations of confidentiality contained in Article 18(1) to apply to Hume's agents. Its basis may be thought to be that Hume may not have absolute control of an agent's use of confidential information. 53 Applying this approach, in my opinion the letter conveyed clearly and unequivocally that the Distributorship Agreement is to terminate with effect on and from 31 March 2007. If authority is needed for this proposition, it may be found in Ballas v Theophilos (No 2) [1957] HCA 90 ; (1957) 98 CLR 193 at 204-205; see also Young v Lamb at [28].


case_text: In light of these omissions before the Federal Magistrate, I am not persuaded in the circumstances of this case that it is appropriate for this Court to entertain on appeal any further dispute in relation to the alleged misinterpretation and the effect which it may have had on the reasoning of the Federal Magistrate. In any event, these matters were not raised in the Notice of Appeal before this Court, and have not been addressed by the appellant in submissions. Moreover, insofar as the appellant alleges that the Tribunal did not act logically or rationally in deciding the case, no information was given, no specifics were set out and no argument was put to the Court to support this contention. In any case, the Full Court of this Court has held on several occasions that the mere fact that a decision is not logical is not of itself a ground for judicial review: NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 at [29] ; W404/01A of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 255 at [35] ; VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 at [18] .


case_outcome: applied

case_text: In its recent decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [35] (' SZBEL '), the High Court enunciated the principle that if the Tribunal takes no step to identify and raise an issue other than those which the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered important comprise all the issues in relation to the decision under review. In the present case, the Federal Magistrate accepted that there was an issue which was different which was considered by the Tribunal. However, having regard to the transcript of the proceedings in the Tribunal, the Federal Magistrate formed the view that the issue had been referred to as an important question by the Tribunal, which was sufficient to satisfy the principle set out in SZBEL . 7 In SZBEL , the High Court refers to an obligation on the Tribunal to invite an applicant to amplify any aspect which it believes will be taken into account and of which the applicant may not be aware. It is not necessary, according to the reasoning in SZBEL , to expressly challenge an applicant by directly putting a proposition contradictory to his or her submissions, but it is important that the matter should at least be referred to. In the present case, I am of the view that the transcript indicates that the Tribunal did signal a concern in relation to the question now raised by the appellant on appeal, namely, his reasons for not going back to Karachi. The Tribunal raised these questions and indicated their importance in questions 46 through to 57 of the transcript before the Tribunal. 8 In those circumstances, although the principles of SZBEL are indeed called into play, I consider that the task imposed on the Tribunal by those principles has been satisfied. Accordingly, having heard the submissions of the appellant and having considered the reasoning of the Tribunal and the Federal Magistrate below, I am of the opinion that this appeal should be dismissed with costs as it does not have any substance and in particular because the question of misinterpretation was not raised either before the Federal Magistrate or in the Notice of Appeal before this Court. 9 For the above reasons, the appeal is dismissed. I will fix costs in this matter at $4000. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 6 August 2007 Counsel for the Appellant: None Solicitor for the Appellant: None Counsel for the Respondent: Mr T. Reilly Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 1 August 2007 Date of Judgment: 1 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1171.html


case_title: VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286


case_title: W404/01A of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 255


case_text: By meeting with Amcor's CEO Mr Jones at the All Nations Hotel and confirming that Visy would adhere to the Over-arching Understanding, Mr Pratt was knowingly concerned in Visy's giving effect to that Understanding. The Commission does not seek the imposition of a pecuniary penalty on Mr Pratt because he and his family are the owners of Visy and thus the burden of the penalty on the company (not to mention legal costs) will fall on him personally. Decisions of this Court recognise that it is legitimate to avoid double counting where an individual contravenor is an owner of a corporate contravenor: Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd (2000) ATPR 41-777 at [13], Australian Competition and Consumer Commission v Commercial and General Publications Pty Ltd (No 2) (2002) ATPR 41-905 at [27]-[29]. I accept this should be so in the present case. However, Mr Pratt's ownership of Visy has other significance for this case. I shall return to this aspect.


case_title: Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd (2000) ATPR 41-777


case_title: Australian Competition and Consumer Commission v J McPhee & Son (Australia) Pty Ltd (No 5) (1998) ATPR 41-628

case_text: Section 76 imports into the penalty fixing process concepts of moral responsibility long known to the criminal law. Ordinary sentencing principles apply: Trade Practices Commission v Axive Pty Ltd (1994) ATPR 41-368 at 42,794, Australian Competition and Consumer Commission v J McPhee & Son (Australia) Pty Ltd (1998) ATPR 41-628 at 40,891.


case_text: Decisions of this Court have identified additional relevant factors which can be taken into account (see Trade Practices Commission v CSR Ltd (1991) ATPR 41-076, at 52,152-52,153; Australian Competition and Consumer Commission v NW Frozen Foods Pty Ltd (1996) ATPR 41-515 at 42,444-42,445): (v) the size of the contravening company; (vi) the degree of its power, evidenced by its market share and the ease of entry into the market; (vii) the deliberateness of the contravention and the period over which it extended; (viii) whether the contravention arose out of the conduct of senior management or at a lower level; (ix) whether the company had a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention; (x) whether the contravenor has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention; (xi) similar conduct in the past; (xii) financial position; (xiii) deterrent effect.


case_text: The Commission has not proceeded against those on the Amcor side of this cartel because in late 2004 Amcor approached the Commission and admitted liability. The Commission applied its Leniency Policy for Cartel Conduct, published in 2003, under which the first party to disclose a cartel of which the Commission is unaware will receive an immunity, provided it is not the "clear leader", gives full and frank disclosure, and continues to cooperate with the Commission. In unrelated litigation Amcor had sued former executives and obtained a Court order for a search of their premises. Incriminating material, including tape recordings of conversations, was discovered and on its solicitors' advice Amcor approached the Commission. Details of these events will be found in my earlier judgment on an interlocutory application: Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd (No 2) [2007] FCA 444 at [7] - [52] . 9 A vast range of consumer goods are packaged in CFP. They include groceries, beverages, dairy products, fruit, produce, meat, poultry, seafood and confectionery. Returnable plastic crates, shrink wrap and other packaging products compete in segments of the CFP market, but otherwise there are no packaging materials which are reasonably substitutable for, or in close competition with, CFP products in relation to the packaging of the goods mentioned. CFP is used to make the ubiquitous cardboard box. 10 The type of CFP products and associated services supplied by Visy and Amcor would vary substantially between customers due to differing customer requirements in terms of board paper type, strength, construction, sheet size, design style, print characteristics and method of assembly. Different board grates were used in the manufacture for supply of CFP products to suit the different applications of the products. Corrugated boxed were supplied in a number of different styles. CFP products could have printing applied either in a pre-print or post-print process.


case_text: The fact that the Commission and the respondents have proffered a penalty agreed as between themselves is relevant, although not of course conclusive, since the responsibility of imposing penalties is conferred by the Trade Practices Act on the Court: see generally Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR 41-993. 306 Cartel behaviour of the kind with which this case is concerned is extremely destructive of the competition on which the prosperity of a free market economy depends. Often the profits can be immense, and the risk of detection slight. Of its nature, cartel behaviour is likely to occur in secret and between parties who seek mutual benefit. In the present case, detection occurred purely by chance when Amcor's solicitors, in the course of quite unrelated litigation, stumbled across incriminating material. Even then the present resolution may not have been reached were it not for two additional factors. First, the Commission's immunity policy and, secondly, the fact that there were not only witnesses prepared to give evidence, but also tape recordings of damning conversations. 307 The progressive increase in the maximum penalties mentioned above shows how gravely the legislature regards this kind of conduct. Price fixing and market sharing are not offences committed by accident, or in a fit of passion. The law, and the way it is enforced, should convey to those disposed to engage in cartel behaviour that the consequences of discovery are likely to outweigh the benefits, and by a large margin. 308 Critical to any anti-cartel regime is the level of penalty for individual contravenors. We tend to overlook the fact that corporations are constructs of the law; they only exist and possess rights and liabilities as a consequence of the law. Heavy penalties are indeed appropriate for corporations, but it is only individuals who can engage in the conduct which enables corporations to fix prices and share markets. 309 Many countries with free market economies have recognised this reality by enacting laws which make cartel conduct by individuals subject to criminal sanctions, including imprisonment. In the United States this happened as long ago as 1890 with the Sherman Act 15 U.S.C. More recently, as shown by the Organisation for Economic Co-operation and Development report Hard Core Cartels Third Report on the Implementation of the 1988 Recommendation , Paris, 2006, the following countries have laws providing for terms of imprisonment for cartel conduct: Canada, France, Germany, Ireland, Israel, Japan, South Korea, Mexico, Norway, Slovak Republic and the United Kingdom. 310 The Australian Government appointed an expert committee chaired by former High Court Justice Sir Daryl Dawson to report on Australia's competition laws. In April 2003 the Dawson Committee in its report ( Review of the Competition Provisions of the Trade Practices Act ) recommended (Report p 163) that, in the light of submissions made to it and growing overseas experience, criminal sanctions deter serious cartel behaviour and should be introduced. 311 On 2 February 2005 the Treasurer, the Honourable Peter Costello MP, announced acceptance of the recommendations of the Dawson Committee and stated that the Government would amend the Trade Practices Act to provide for a term of five years imprisonment, as well as increases in other penalties. The Treasurer noted: Dishonesty goes to the heart of serious cartel conduct, where customers are deceived when purchasing goods or services unaware that the price and supply of those goods and services were determined by collusion, rather than competition . Although, as already mentioned, the Act was amended last year to raise corporate penalties, the Government hasn't yet got around to introducing criminalisation.


case_title: Trade Practices Commission v Axive Pty Ltd (1994) ATPR 41-368


case_title: Trade Practices Commission v CSR Ltd (1991) ATPR 41-076


case_text: is trite law to say that I have a discretion in relation to costs pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth), the only constraint being, speaking generally, that I am obliged to exercise that discretion judicially. The usual rule in relation to costs is that costs follow the event, in the absence of special reasons to the contrary: Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 234-235.


case_text: departure from the usual rule requires a valid, special reason. When considering the exercise of discretion in relation to the exercise of costs, it is frequently submitted that other cases bear upon the issue, and provide guidance as to how those costs should be ordered, but it has been established in a number of cases that other cases are not particularly helpful where the facts are quite different, and I adopt the observations of Heerey J in Fetherson v Peninsula Health (No 2) [2004] FCA 594 ; (2004) 137 FCR 262 at par [12]. The defendant has submitted that the plaintiffs should pay his costs as he has succeeded on the whole of the claim in the sense that he is not liable to pay any of the amount claimed by the plaintiffs. The plaintiffs make a quite different submission. They submit that the defendant should pay their costs as they were successful in relation to all the substantive issues. The plaintiffs point to the fact that they succeeded in establishing the issues that the company was insolvent, that there were reasonable grounds to suspect insolvency and that the defendant was aware of those reasonable grounds. They also established that a reasonable person in a like position to the defendant would have been so aware of those reasonable grounds, and they succeeded in relation to the defences available under s 588H(2), which were not made out.


case_outcome: followed

case_text: situation which has arisen in relation to the interlocutory process is that at the time there was a reasonable basis for bringing it. That basis has now disappeared as a result of subsequent events. It is not appropriate that the Court try the whole of that interlocutory proceeding simply for the purpose of determining the costs, and there is clear authority for the proposition that, unless in those circumstances it is abundantly clear that the interlocutory process would have clearly succeeded or clearly failed, there should be no order as to costs in relation to it. I adopt and follow the reasoning of McHugh J in Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622 , Finkelstein J in Gribbles Pathology Ltd v Health Insurance Commission (1997) 80 FCR 284 and Hill J in Australian Securities Commission v Aust-Home Investments Ltd [1993] FCA 585 ; (1993) 44 FCR 194. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg. Associate: Dated: 22 December 2009 Counsel for the Plaintiffs: M Galvin Solicitor for the Plaintiffs: Maddocks Counsel for the Defendant: J L Evans Solicitor for the Defendant: Voitin Lawyers Date of Hearing: 14 December 2009 Date of Judgment: 14 December 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1540.html


case_title: Gribbles Pathology Ltd v Health Insurance Commission (1997) 80 FCR 284


case_title: Australian Securities Commission v Aust-Home Investments Ltd [1993] FCA 585 ; (1993) 44 FCR 194


case_outcome: distinguished

case_text: applicant claimed to derive assistance from Baxter v Obacelo [2001] HCA 66 ; (2001) 205 CLR 635. That case concerned s 5(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) which provided in part that: Where damage is suffered by any person as a result of a tort ... (b) if more than one action is brought in respect of that damage by or on behalf of the person by whom it was suffered ... against tortfeasors liable in respect of the damage (whether as joint tortfeasors or otherwise) the sums recoverable under the judgments given in those actions by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first given ... The Court held that the provision applied only to cases where there was more than one proceeding, and thus did not preclude recovery against more than one defendant sued as joint tortfeasors in the one proceeding. Baxter [2001] HCA 66 ; 205 CLR 635 did not involve a limitation provision. I am unable to see how it assists the applicant. For the above reasons I am of the view that the Magistrate's decision is not attended with sufficient doubt to warrant reconsideration by this Court. If, contrary to my opinion, the Magistrate's order was a final order, I would dismiss the appeal for the same reasons I would refuse leave to appeal assuming the order to be interlocutory. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate: Dated: 22 December 2009 The applicant appeared in person. Counsel for the Respondent: J Brereton Solicitor for the Respondent: Rebecca Goodger, Ford Motor Company of Australia Date of Hearing: 10 December 2009 Date of Judgment: 22 December 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1554.html


case_text: applicant accepted that but for the provisions of Part VIA of the Act, his proceeding was out of time. He submits that that Part permits his otherwise out of time claim. Part VIA deals with Proportionate Liability for Misleading and Deceptive Conduct and was introduced into the Act in 2004. Its purpose was explained by Finkelstein J in BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (No 2) [2008] FCA 1656 at [4] . Part VIA consists of ss 87CB to 87CI. Section 87CB(1) limits the operation of the Part to a claim for damages under s 82 for economic loss or damage to property caused by conduct in contravention of s 52. This type of claim is called an "apportionable claim". Section 87CD establishes proportionate liability for an apportionable claim. Subsection (1) provides: In any proceedings involving an apportionable claim: (a) the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the damage or loss claimed that the court considers just having regard to the extent of the defendant's responsibility for the damage or loss; and (b) the court may give judgment against the defendant for not more than that amount. The expression "concurrent wrongdoer" is defined in 87CB(3) as a person who is one of two or more persons whose acts or omissions caused, independently of each other or jointly, the damage or loss that is the subject of the apportionable claim. Section 87CF provides that a defendant against whom judgment is given as a concurrent wrongdoer cannot be required to contribute to the damages recovered from another concurrent wrongdoer or indemnify any such wrongdoer. Section 87CG(1) provides: In relation to an apportionable claim, nothing in this Part or any other law prevents a plaintiff who has previously recovered judgment against a concurrent wrongdoer for an apportionable part of any damage or loss from bringing another action against any other concurrent wrongdoer for that damage or loss. The applicant claims to bring himself within s 87CG(1) by reason of a settlement of his claim against Stillwell in October 2003. This is the proceeding referred to in the first paragraph of the passage quoted at [2]. The settlement occurred as the result of a mediation. The County Court proceeding was struck out by consent with no order as to costs. Accordingly s 87CG(1) does not apply for want of "judgment recovered". However, quite apart from this, Part VIA does not seem to me to provide any assistance to the applicant in displacing the limitation period in s 82(2).


case_text: applicant appeared in person. Although he made no express application for leave, I will treat him as seeking it. Leave to appeal is only granted if the applicant establishes that the decision at first instance is attended with sufficient doubt to warrant its reconsideration by an appellate court and substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 at 398-400.


case_text: 17A of the Federal Magistrates Act is in the same terms as s 31A of the Federal Court of Australia Act 1976 (Cth). In Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117 ; (2009) 259 ALR 319 the Full Court held that the decision of a single judge to grant summary judgment to the respondent on the basis that the applicant had no reasonable prospect of successfully prosecuting a proceeding is an interlocutory judgment because the legal effect of such a judgment is not final . See also Luck v University of Southern Queensland [2009] FCAFC 73 ; (2009) 176 FCR 268 at [101] per Rares J, with whom Graham J agreed. The observations of Rares J in Luck were approved by the Full Court in Kowalski [2009] FCAFC 117 ; 259 ALR 319 at [43] . Accordingly I must treat the Federal Magistrate's order as an interlocutory order requiring the grant of leave.


case_title: Luck v University of Southern Queensland [2009] FCAFC 73 ; (2009) 176 FCR 268


case_text: Magistrate went on to note the High Court's caution in Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 at 533 that it is undesirable for limitation questions of the kind under consideration in that case to be decided in interlocutory proceedings except in the clearest of cases. His Honour was of the view that this was the clearest of cases. The applicant had no reasonable prospect of succeeding. His claim was clearly out of time. The applicant has appealed against the Magistrate's dismissal of his application. By motion notice of which was filed on 15 October 2009 the respondent seeks an order that the appeal be dismissed "for failing to identify any legal, factual or discretionary error in the judgment under appeal". It contends first that the Magistrate's decision was interlocutory and no leave to appeal has been sought. It then contends, as per the motion, that the applicant has identified no error in the decision.


case_text: In a case where the relief sought is an order under s 360(1)(v) or (vii) of the Act (declaring that a person who was returned as elected was not duly elected or declaring an election void) on the ground that there has been a contravention of the Act, the consequence of s 362(3) of the Act is that, relevantly, the facts which would justify the relief must include facts which would allow the Court to be satisfied that the result of the election is likely to have been affected. The minimum assertion necessary to constitute such a fact is one raising the matter or matters by which the election is likely to be affected ( Webster at 225 per Gaudron J; McClure v Australian Electoral Commission [1999] HCA 31 ; (1999) 163 ALR 734 at [23] [24] per Hayne J). As Dawson J outlined in Sykes v Australian Electoral Commission [1993] HCA 36 ; (1993) 115 ALR 645 at 649, paragraph (a) requires not only the essential facts relied on to be set out but also those facts must be sufficient to justify a finding in invalidity. As his Honour pointed out, otherwise s 355(a) in conjunction with s 358(1) would achieve little.


case_text: As noted above, s 358(1) of the Act provides that, subject to subs (2), no proceedings shall be had on the petition unless the requirements of, relevantly, s 355, are complied with. The 40 day requirement of s 355(e) is one which must be complied with if proceedings are to be had on the petition within the meaning of s 358(1). In Nile v Wood [1988] HCA 30 ; (1987-1988) 167 CLR 133 the petition failed to include a prayer for relief as required by s 355(b). Justices Brennan, Deane and Toohey stated at 137 that if there are defects in the petition in a failure to comply with s 355, those defects are not capable, by reason of s 358, of being cured by amendment after the period of 40 days fixed by paragraph (e) for the filing of a petition. Accordingly the petition was held to be incurably defective and no proceedings could be had on it (at 140). 19 Accordingly, as the 40 day period has now expired, any amendment to the petition is not available as the petition does not comply with s 355(a) of the Act. 20 The Act does provide one exception to the requirements of s 355. Section 358(2) provides that the Court may, at any time after filing the petition and on such terms (if any) as it thinks fit, relieve the petitioner wholly or in part from compliance with s 355(aa).


case_text: There are some difficulties in distinguishing between the facts required by s 355(a), as to which no amendments are to be made after the 40 day period and the facts needed to comply with s 355(aa), where compliance can be dispensed with at any time after the filing of the petition. As Dawson J observed in Sykes at 648, the precise distinction between those two subparagraphs ' is a matter of some obscurity '. His Honour continued, in a passage adopted by Toohey J in Robertson v Australian Electoral Commission [1993] HCA 50 ; (1993) 116 ALR 407 at 409: ...it appears that under para (a) the essential facts may be stated with a degree of generality and it is para (aa) which requires sufficient particularity to identify the specific matter or matters relied on.


case_text: This is not a case of a lack of particularisation. The facts in the petition do not comply with s 355(a) of the Act even at a level of generality. The inclusion of s 355(aa), which refers to the particularity of the content of the petition emphasises the imperative nature of the other provisions of s 355 ( Rudolphy v Lightfoot [1999] HCA 61 ; (1999) 197 CLR 500 at [9] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) including s 355(a). 25 In Rudolphy , the High Court confirmed that ' once the forty day period has expired, it is not possible thereafter to amend the petition which has been filed within time so as to cure any non-compliance with the requirement of section 355 ' (at [12]). Amendment to the petition is not available. 26 Mr Smith seeks by the petition an order that the Senate elections be declared void on the ground that the registration of the Fishing and Lifestyle Party contravened Part XI of the Act. However, his petition does not allege sufficient facts that would be capable of showing that any such wrongful registration is likely to have had any effect on the outcome of the elections in question. Any amendment to the petition is not available as the 40 day period referred to in s 355(e) has now expired. 27 The petition fails to comply with s 355(a) of the Act and must therefore be dismissed. I will hear the parties as to costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 26 June 2008 The Petitioner was self represented Counsel for the Respondent: G R Kennett Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 20 June 2008 Date of Judgment: 27 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/953.html


case_text: In a case where the relief sought is an order under s 360(1)(v) or (vii) of the Act (declaring that a person who was returned as elected was not duly elected or declaring an election void) on the ground that there has been a contravention of the Act, the consequence of s 362(3) of the Act is that, relevantly, the facts which would justify the relief must include facts which would allow the Court to be satisfied that the result of the election is likely to have been affected. The minimum assertion necessary to constitute such a fact is one raising the matter or matters by which the election is likely to be affected ( Webster at 225 per Gaudron J; McClure v Australian Electoral Commission [1999] HCA 31 ; (1999) 163 ALR 734 at [23] [24] per Hayne J). As Dawson J outlined in Sykes v Australian Electoral Commission [1993] HCA 36 ; (1993) 115 ALR 645 at 649, paragraph (a) requires not only the essential facts relied on to be set out but also those facts must be sufficient to justify a finding in invalidity. As his Honour pointed out, otherwise s 355(a) in conjunction with s 358(1) would achieve little. 15 Whether or not the requirements of s 355(a) are complied with is to be determined solely by reference to what appears on the face of the petition ( Wheeley v Australian Electoral Commission [2005] FCA 473 at [13] per Kiefel J). In the present case there are no facts set out or assertions made in the petition as to the likely outcome of the election other than the possibility that, because of a preference deal, the quota or a Senate position may have been achieved for some other, unspecified, group. The facts alleged emphasise the difficulty of "unscrambling" the Senate results if a group were to be removed. As Dawson J said in Sykes at 649, it is not sufficient for a petitioner to allege insufficient facts to justify relief under the Act but nevertheless contend that as they were the only facts upon which he or she relied, the requirements of paragraph (a) were satisfied. 23 There are some difficulties in distinguishing between the facts required by s 355(a), as to which no amendments are to be made after the 40 day period and the facts needed to comply with s 355(aa), where compliance can be dispensed with at any time after the filing of the petition. As Dawson J observed in Sykes at 648, the precise distinction between those two subparagraphs ' is a matter of some obscurity '. His Honour continued, in a passage adopted by Toohey J in Robertson v Australian Electoral Commission [1993] HCA 50 ; (1993) 116 ALR 407 at 409: ...it appears that under para (a) the essential facts may be stated with a degree of generality and it is para (aa) which requires sufficient particularity to identify the specific matter or matters relied on.


case_text: The Commission submits that, as pointed out by Gaudron J in Webster v Deahm [1993] HCA 38 ; (1993) 116 ALR 223 at 225, the very minimum assertion necessary to constitute a fact which will invalidate an election or return for the purposes of s 355(a) of the Act is one that raises a matter or matters by which the election was likely to be affected, such as an assertion ' that goes to or bears upon the casting or counting of votes '. 10 The petition does include some alleged facts under the heading "The Senate Election Facts". Apart from setting out some general matters about "above and below the line" voting, the following facts are alleged, described as "particulars": (xxxi) The above the line groups especially like minded ones are known for doing preference swaps or deals which create preference flows that either enhance or restrict a group vote tally to reach the required Quota to become elected or excluded, so the preference flow is most important to parties who fail to gain the quota at first preference. (xxxii) The inclusion or exclusion of above the line groups with their preference "deals" is crucial in the Senate preference system for any group to achieve quota or deciding last Senate spots. Is there a remedy for unscrambling election Senate results if a group is removed from the election after the votes have been cast and counted? (original emphasis) 11 These alleged facts do not address the matters raised in Webster . Read beneficially to Mr Smith, they do suggest that the existence of a party as a group affects the actual votes recorded and also the directed distribution of preferences. That distribution may be influenced and affected as alleged by ' deals done prior to the election for the distribution of preferences '. 12 Mr Smith, in his submissions, made it very clear that in questioning whether there was a way of "unscrambling" election results, his case as set out in those alleged facts is that the Senate election is a complex system of preference votes that are ' non-lineal '. He says that if a party is removed, there is no process available by any ' lineal means ' to know what would happen and that, if the party were not on the ballot paper, the outcome in terms of the likely voter pattern would be ' unpredictable '. He submits that there is an infinite list of variables that are likely to affect the outcome of the election and that the result of the change of one of those variables would result ' in chaos ' which, he said, would flow from the change in just one variable before the election. 13 The Commission points out that this amounts to a case based on the contention that one variable can ' change anything and everything '. It submits that the statutory threshold necessary is that the election is likely to be affected . Accordingly, the facts relied on to invalidate the election or return under s 355(a) must be sufficient to establish, as a threshold, that the election is likely to be affected. An allegation of chaos that may affect the outcome is, it submits, insufficient. 14 In a case where the relief sought is an order under s 360(1)(v) or (vii) of the Act (declaring that a person who was returned as elected was not duly elected or declaring an election void) on the ground that there has been a contravention of the Act, the consequence of s 362(3) of the Act is that, relevantly, the facts which would justify the relief must include facts which would allow the Court to be satisfied that the result of the election is likely to have been affected. The minimum assertion necessary to constitute such a fact is one raising the matter or matters by which the election is likely to be affected ( Webster at 225 per Gaudron J; McClure v Australian Electoral Commission [1999] HCA 31 ; (1999) 163 ALR 734 at [23] [24] per Hayne J). As Dawson J outlined in Sykes v Australian Electoral Commission [1993] HCA 36 ; (1993) 115 ALR 645 at 649, paragraph (a) requires not only the essential facts relied on to be set out but also those facts must be sufficient to justify a finding in invalidity. As his Honour pointed out, otherwise s 355(a) in conjunction with s 358(1) would achieve little.


case_text: Whether or not the requirements of s 355(a) are complied with is to be determined solely by reference to what appears on the face of the petition ( Wheeley v Australian Electoral Commission [2005] FCA 473 at [13] per Kiefel J). In the present case there are no facts set out or assertions made in the petition as to the likely outcome of the election other than the possibility that, because of a preference deal, the quota or a Senate position may have been achieved for some other, unspecified, group. The facts alleged emphasise the difficulty of "unscrambling" the Senate results if a group were to be removed. As Dawson J said in Sykes at 649, it is not sufficient for a petitioner to allege insufficient facts to justify relief under the Act but nevertheless contend that as they were the only facts upon which he or she relied, the requirements of paragraph (a) were satisfied.


case_text: Third, the exhibits were filed pursuant to a direction of the Court for Veda to 'file and serve any ... affidavits". Veda is to be regarded as acting under compulsion of law by reason of the direction (see Akins v Abigroup Ltd (1998) 43 NSWLR 539) just as it would be doing if it had been required to give discovery of the documents or to produce them in compliance with a subpoena or notice to produce. Whatever the position may be when a party simply leads evidence on the final hearing without having been required to file and serve its affidavits in advance, that is not the case here. Veda would not have filed and served its affidavits and their exhibits if it had not been directed by the Court to do so.


case_title: Cadence Asset Management Pty Ltd v Concept Sports Ltd [2006] FCA 711

case_text: Seventh, in Cadence Asset Management Pty Ltd v Concept Sports Limited [2006] FCA 711 , which concerned discovered documents, Finkelstein J held that disclosure to a litigation funder was not caught by the implied undertaking. His Honour's reason was that a litigation funder, although not a party, was not a stranger to the proceeding and had a sufficient interest to be provided with the documents, or at least to those documents it needed in order to assess the merits of the action. 43 Neither DR Capital nor CRA is a litigation funder. Nor are they expert witnesses. On the present state of the evidence, it is not clear to me that they have any proper role in relation to the prosecution of these proceedings. The evidence shows only that DR Capital and CRA: • assist individuals to have their credit information files corrected; • have acted as some kind of intermediary between the applicants and a proposed litigation funder; and • introduced the nine applicants or some of them to their present solicitors.


case_text: The conclusion I have reached is that the position of Mr Dale's legal representatives and Mr Dale (and the other eight applicants) should be left to be governed by the implied undertaking in accordance with Harman [1983] 1 AC 280. I accept a submission of senior counsel for Mr Dale that his legal advisers should be at liberty to explain to their client, if and as and when they think appropriate, what the exhibits reveal, and to show the exhibits to him for that purpose, subject, of course, to their also explaining to him the implied undertaking he gives to the Court and the potential consequences for him of a breach by, for example, disclosing what he has learned from the exhibits to DR Capital or to CRA. As Toohey J observed in Commonwealth v Northern Land Council [1993] HCA 24 ; (1992) 176 CLR 604 at 638, an undertaking by a litigant's legal representatives not to disclose to the litigant can give rise to considerable difficulties.


case_text: Fourth, the principles of Harman v Secretary of State for the Home Department [1983] 1 AC 280 ( Harman ) signify that Mr Dale and the other applicants, and counsel and solicitors representing them in the proceedings, impliedly undertake to the Court not to use the exhibits or the information contained in them for any other purpose than that of the present proceedings. The implied undertaking is reflected in para (2) of the undertaking proposed by Veda, set out at [4] above. No doubt solicitors and counsel will draw the implied undertaking to the attention of Mr Dale and the other eight applicants if they have not already done so. The implied undertaking also applies, of course, to all the affidavits and exhibits that have already been served. It would be a punishable contempt of court if any of the applicants or any of their legal advisers were to make use of, or to disclose the content of, any of the affidavits or exhibits (including, but not limited to, the four in dispute) to anyone for any other purpose. 40 Fifth, O 46 r 6(3) of the Federal Court Rules provides that except with the leave of the Court or a Judge, a non party must not inspect, relevantly, an affidavit in a proceeding. I treat the reference to "affidavit" in the rule as embracing exhibits to the affidavit (in any event subr (4) of O 46 r 6 provides that except with the leave of the Court or a Judge, or with the permission of the Registrar, a non party must not inspect any document in any proceedings that is not referred to in subr (2) or (3)). Although those rules are concerned with inspection of documents on the Court's files, it is noteworthy that Dun & Bradstreet, DR Capital and CRA and their employees would not be entitled to inspect the exhibits in the Registry without leave. 41 Sixth, I accept that exhibits RAB1, RAB2, RAB3 and RAB8 are confidential to Veda, but, as noted above, I do not find it necessary to determine whether they are confidential in any way or to any extent different from the internal procedural records and instructions maintained by any business. 44 The conclusion I have reached is that the position of Mr Dale's legal representatives and Mr Dale (and the other eight applicants) should be left to be governed by the implied undertaking in accordance with Harman [1983] 1 AC 280. I accept a submission of senior counsel for Mr Dale that his legal advisers should be at liberty to explain to their client, if and as and when they think appropriate, what the exhibits reveal, and to show the exhibits to him for that purpose, subject, of course, to their also explaining to him the implied undertaking he gives to the Court and the potential consequences for him of a breach by, for example, disclosing what he has learned from the exhibits to DR Capital or to CRA. As Toohey J observed in Commonwealth v Northern Land Council [1993] HCA 24 ; (1992) 176 CLR 604 at 638, an undertaking by a litigant's legal representatives not to disclose to the litigant can give rise to considerable difficulties. 56 I propose to publish these reasons and stand over the motion to a date for the making of any orders, including orders as to costs. My present thinking is that there should be no order as to costs because both parties had a measure of success on the motion. In favour of Veda, I have held that at present exhibits RAB1, RAB2, RAB3 and RAB8 should be withheld from DR Capital and CRA, and I have rejected a submission made on behalf of Mr Dale that the exhibits should be treated as if they had become part of the evidence on the final hearing. In favour of Mr Dale, I have not required that he or the solicitors or barristers representing him in this proceeding sign written undertakings to the Court, and have been content to allow their positions to be governed by the undertaking to the Court that is implied in accordance with the principles of Harman [1983] 1 AC 280. The Privacy Act part of the motion took virtually no time at all and was not seriously contested by Mr Dale. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 22 October 2007 Counsel for the Applicant (Respondent to the Motion): Mr T S Hale SC, Mr P W Bates and Mr P Nagle Solicitor for the Applicant (Respondent to the Motion): Gerard Malouf & Partners Counsel for the Respondent (Applicant on the Motion): Mr P M Wood and Mr M S White Solicitor for the Respondent (Applicant on the Motion): The Second Respondent did not appear Ebsworth & Ebsworth Date of Hearing: 8 October 2007 Date of Judgment: 22 October 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1603.html


case_outcome: considered

case_text: A denial of natural justice may arise in a variety of different circumstances. It can for example result from a misconstruction of the powers provided to the Tribunal (see Anisminic Ltd v Foreign Compensation Commission and Another [1969] 2 AC 147 at 171) or where a Tribunal identifies a wrong issue, asks itself the wrong question, ignores relevant material, relies upon irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion: see Craig v The State of South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179.


case_outcome: affirmed

case_text: Ms Budd applied to the Tribunal for a review of the SSAT decision and participated in a hearing before the Tribunal by way of telephone. The Tribunal delivered its decision on 21 February 2008 affirming the SSAT decision and dismissing Ms Budd's application: see Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 137. In such decision the Tribunal at [8] made the following finding of fact: She seldom goes out of the house and will only do so to get stationary [sic] supplies and post letters. That is the extent of her travelling. Ms Budd also stated in her letter dated 26 November 2006 that she does not leave the house to do her voluntary work and instead writes the poems at home and then sends them to St Clare's Church. In a letter, undated but received by the Tribunal on 5 November 2007, Ms Budd stated that "St Clare's does not need me to do "face to face" work". 15 The Tribunal concluded at [9]: I find that Ms Budd does not satisfy the travel test because the nature of her voluntary work does not require her to travel to and from her home for the purpose of undertaking that work. Ms Budd is able to conduct her voluntary work from home. In making my finding I have taken into consideration the reports of Dr Hugo Rodriguez, the letters from Sister Francis, the letter from Senator John Faulkner and several letters that Ms Budd sent the Tribunal. 16 Where a notice of appeal is not filed within the time limits prescribed by s 44(2A)(a) of the AAT Act, s 44(2B) thereof provides: In the interest of justice, the grounds on which the Federal Court of Australia may allow further time under paragraph (2A)(a) include, but are not limited to, the following grounds: (a) if the Tribunal made an oral statement as to the reasons for the decision and afterwards gave a written statement of reasons for the decision--the written statement contains reasons that were not mentioned in the oral statement; (b) the text of the decision or a statement of reasons for the decision has been altered under section 43AA.


case_title: Comcare v Etheridge [2006] FCAFC 27

case_text: The Court observes that it has a limited power to review questions of fact (see Comcare v Etheridge [2006] FCAFC 27 at [13] - [16] ), but such power only arises 'after the Court has given consideration of the questions of law which constitute the subject matter of the appeal' : see Comcare at [17]. In the current proceeding however no question of law is raised.


case_title: Craig v The State of South Australia [1995] HCA 58 ; (1995) 184 CLR 163


case_text: In these circumstances, the Court cannot substitute its own decision for that of the Tribunal: see Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40 ; (1986) 162 CLR 24 per Mason J at 40-41. 31 Although it is inappropriate for the Court to trespass into the merits, the Court notes that Ms Budd misinterprets the travel test in s 1035(2) of the Act. Her submissions at hearing and her correspondence with the Court continually reiterated that she 'does the work' and that she 'does the travel' . However, the existence of these two facts in isolation does not satisfy the travel test in s 1035(2). The determinative issue before the Tribunal was whether she was required to travel in order to perform the work. The Tribunal found against Ms Budd on such issue and this Court cannot interfere with that finding. 32 It follows from the above that it is not 'in the interest of justice' to grant leave to Ms Budd to file and serve a notice of appeal out of time pursuant to s 44(2A)(a) of the AAT Act. The Court accordingly dismisses the application with costs. 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: 17 October 2008 Counsel for the Applicant: The Applicant appeared in person by telephone. Solicitor for the Applicant: Australian Government Solicitor Date of Hearing: 23 September 2008 Date of Judgment: 17 October 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1540.html


case_text: In considering whether it is in the interest of justice to grant an extension of time under s 44(2A)(a) of the AAT Act, the Court notes that it is 'not limited to' the grounds contained in paragraphs (2B)(a) and (2B)(b). In Phillips v Australian Girls' Choir Pty Ltd & Anor [2001] FMCA 109 Federal Magistrate McInnis considered the nature of the discretion contained in s 44(2A)(a) of the AAT Act, and said at [10]: In the light of A'Hearn's case, it is clear that at least one of the principles referred to by Wilcox J in the Hunter Valley decision needs to be modified namely that it should not be any longer regarded as law that the inexcusable delay on the part of a solicitor should be visited upon the client and nor should it be a principle that there is in fact a pre-condition to the exercise of discretion in favour of the applicant for extension to show an acceptable explanation for delay or that it's fair and equitable in the circumstances to extend time. In the light of the decision in Ahearn's [sic] case it is useful to set out in modified form the relevant principles in relation to the exercise of the Court's discretion when considering an extension of time in a human rights application based upon those principles distilled by Wilcox J in Hunter Valley as follows: 1. There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The "prescribed period" of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550). 2. It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A'Hearn [1993] FCA 498 ; (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302). 3. Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff (1982) 42 ALR 283 at 287). 4. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p 287). 5. The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416). 6. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417). 7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion (Wedesweiller v Cole (1983) 47 ALR 528). Such principles were applied by Gray J in Pham v Commonwealth of Australia [2002] FCA 669 , although in the context of s 46PO(2) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).


case_outcome: approved

case_title: Phillips v Australian Girls' Choir Pty Ltd & Anor [2001] FMCA 109


case_text: In Shahid v The Australasian College of Dermatologists [2006] FCA 414 at [5] - [6] I said: 'The respondent relies on the reasoning in McKellar v Container Terminal Management Services Ltd [1999] FCA 1639 and Sereika v Cardinal Financial Securities Ltd (formerly Inteq Custodians Ltd) [2001] FCA 687. In McKellar , Weinberg J followed the approach taken by Branson J in Life Airbag Co of Australia Pty Ltd v Life Airbag Co (New Zealand) Ltd [1998] FCA 545 and Kiefel J in Harris v Cigna Insurance Australia Ltd (1995) ATPR 41-445. In Harris , Kiefel J accepted that an order that certain costs be taxed and paid forthwith was justified in circumstances where there had been a long delay in the course of the proceeding by the pursuit of an ill-considered and unnecessary claim. It is common ground that the making of the order sought by the notice of motion is a matter in the discretion of the Court.' In Airservices Australia v Jeppersen Sanderson Inc [2006] FCA 906 at [31] - [32] Graham J said: 'In lengthy and complex cases where substantial costs have been thrown away as a result of ill-considered pleadings being drawn, the power to order that costs thrown away be paid forthwith should be used less sparingly than it has in the past. Such costs should be capable of being recovered without the innocent party having to wait, possibly years, for that to occur (per Weinberg J in McKellar v Container Terminal Management Services Limited [1999] FCA 1639 at [41] ). The making of an order under Order 62 rule 3 is justified where, through no fault of a party, such as the first and second respondents in the present case, there has been substantial delay in the proceedings because an applicant has attempted a number of versions of the Application and of the Statement of Claim, additional directions hearings have taken place which should not have been necessary, interlocutory steps have been taken and applications have been brought unnecessarily given the changes to the pleadings that have occurred (see All Services Australia Pty Ltd v Telstra Corporation Ltd (2000) 171 ALR 330 at 333 [11].'


case_title: Shahid v The Australasian College of Dermatologists [2006] FCA 414


case_text: On 20 April 2006 the Court made orders under s 1323 of the Corporations Act 2001 (Cth) appointing receivers to the property of Westpoint Realty Pty Ltd (Westpoint Realty) and a number of other companies and individuals connected with the Westpoint Finance and Property Group (Westpoint Group): Australian Securities and Investments Commission, In the Matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 3) [2006] FCA 433. The receivers appointed were Brian McMaster, Oren Zohar and Mark Korda. Orders were made at the same time requiring the authority of the receivers to approve transfers or dispositions of the property of the company to a value in excess of $5,000 within any seven day period. 2 The orders made on 20 April 2006 were varied on 30 June 2006 by more elaborate orders. These included an order that, subject to the receivers' satisfaction as to the solvency of the company, they could approve payments by it to meet "reasonable legal expenses" incurred in these proceedings or in connection with proceedings brought against the company by the Australian Securities and Investments Commission (ASIC) or others in the future. 3 The condition requiring satisfaction as to solvency before payments could be approved was modified by further orders made on 26 July 2006. By those orders the receivers were permitted to disregard, for the purposes of their satisfaction as to solvency, the potential liability of the company under guarantees it had given to so called Mezzanine companies in the Westpoint Group. The Mezzanine companies had raised funds from retail investors for property developments in the Westpoint Group. The receivers were also entitled to disregard the company's potential GST liability for the supply of sales and marketing services to other entities in the Westpoint Group. The modification of the condition requiring satisfaction as to solvency has been referred to in these proceedings as a "carve-out" from that condition.


case_text: in the context of O 11 r 16 includes a pleading "which is susceptible of various meanings, or contains inconsistent allegations or in which alternatives are confusingly intermixed or in which irrelevant allegations are made tending to increase expense. This list is not intended to be exhaustive": Bartlett v Swan Television & Radio Broadcasters Pty Ltd [1995] FCA 1429 ; [1995] ATPR 41-434 at 40,889 per Carr J. For reasons I will give, the plaintiffs' pleading in the ASOC in relation to the ABB Grain basis contract is embarrassing and should be struck out. Again, for reasons I will give, the pleading in the proposed SASOC does not overcome the defects, and leave to amend in terms of that document will be refused. The plaintiffs may apply for leave to replead their cause of action in relation to the ABB Grain basis contract, but I will hear from the parties if such an application is made. In the proposed SASOC, the plaintiffs plead a cause of action against ABB Grain which is not pleaded in the ASOC. The cause of action is a breach of a duty of care allegedly owed by ABB Grain to the plaintiffs. Counsel for the third defendant put persuasive arguments in support of the proposition that such a duty could not arise as a matter of law (see [56] below), but it may assist the parties if I indicate that, on the submissions to date, I would not be disposed to conclude that the allegation was unarguable in the relevant sense.


case_text: have been a number of cases which have discussed the precise test posited by s 31A. The principal authorities to which I was referred are: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720 ; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372 ; Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905.


case_outcome: discussed

case_text: it be assumed (as is probably the case), that a failure by a seller to deliver wheat or barley under forward contracts of the type in question in this case would ordinarily lead to an award of damages rather than an order for specific performance, then, putting to one side for the present the effect of washout provisions, it would only be in a very loose sense that it could be said that the seller's obligations could be wholly settled by cash, rather than the delivery of the property. I do not think that that is what s 761D(3)(a)(ii) means. It seems to me that the important words in the paragraph are arrangement , permit and rather than . It seems to me that those words mean that the option wholly to settle an obligation by cash must be in the arrangement, it must be vested in the seller and the alternatives of paying cash or delivering the property must be of a similar nature or standing. The "option" of paying damages is not an option provided by the arrangement, nor is it of a similar nature or standing as the obligation to deliver the property. As Windeyer J said in Coulls v Bagot's Executor and Trustee Co Ltd [1967] HCA 3 ; (1967) 119 CLR 460 (at 504): "The primary obligation of a party to a contract is to perform it, to keep his promise. That is what the law requires of him. If he fails to do so, he incurs a liability to pay damages. That however is the ancillary remedy for his violation of the other party's primary right to have him carry out his promise. It is, I think, a faulty analysis of legal obligations to say that the law treats a promisor as having a right to elect either to perform his promise or to pay damages." The obligation to pay damages arises when the seller breaches his obligations, not when he settles them. The buyer's right to recover nominal damages in certain circumstances reinforces the point. There is also force in the submission of counsel for ABB Grain that it is inherently unlikely that Parliament would have intended that the application of a provision such as paragraph (ii), with all the consequences that flow therefrom, would turn on whether the discretionary remedy of specific performance was likely to be awarded. I turn now to the plaintiffs' second submission in relation to this paragraph, namely, that the washout provisions in the forward contracts mean that they fall outside the terms of paragraph (ii) because they permit the seller's (that is, the plaintiffs') obligations to be wholly settled by cash, rather than the delivery of the property. I reject that submission because the washout provisions are of a different nature and have a different operation to a permission in the arrangement for the seller's obligations to be wholly settled by cash. First, the washout provisions in the case of the ABB Grain first forward contract only operate if the plaintiffs suffer production failure, and they only operate in the case of the ABB second forward contract and the Glencore Grain forward contract if the seller finds that he is or will be in default. Secondly, it is correct to say that, in essence, the washout provisions operate at the option of the buyer, not the seller. Thirdly, where invoked, the washout provisions result in a measure of damages similar to that specified in s 50(3) of the Sale of Goods Act 1895 (SA) brought forward to a time at which it has become obvious to the seller that he or she will not be able to meet the obligation to deliver the goods.


case_title: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372


case_text: plaintiffs filed and served a Statement of Claim on 4 August 2008. That pleading was replaced by an Amended Statement of Claim ("ASOC") filed and served on 18 November 2008. On 23 December 2008, I made an order striking out the ASOC against Glencore Grain ( Keynes v Rural Directions Pty Ltd [2008] FCA 1964). That led to an application by the plaintiffs for leave to file and serve a Second Amended Statement of Claim ("the proposed SASOC"). There are three notices of motion before me which, in chronological order, are a notice of motion by Glencore Grain, a notice of motion by the plaintiffs and a notice of motion by ABB Grain. Before summarising the orders sought in those notices of motion and the evidence adduced in support of the motions, it is convenient to summarise the relevant allegations in the pleadings. The plaintiffs' claim against ABB Grain The existing Statement of Claim against ABB Grain is the ASOC. It will be necessary to consider also the proposed SASOC to determine whether it overcomes the defects I find exist in the ASOC.


case_text: failure by a seller of goods to comply with an obligation to deliver the goods may give rise to an action for damages by the buyer for non-delivery (see, for example, s 50(1) of Sale of Goods Act 1895 (SA)). The measure of damages where there is an available market for the goods in question is " prima facie to be ascertained by the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered..." (see, for example, s 50(3) of Sale of Goods Act 1895 (SA)). Where there is no difference, or where a buyer fails to adduce evidence of actual damage, he or she may nevertheless recover nominal damages for breach of contract: Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd [1938] HCA 66 ; (1938) 61 CLR 286. On occasions, a Court may order specific performance of a contract for the sale and delivery of goods (see, for example, s 51 of the Sale of Goods Act 1895 (SA)). Generally speaking, a Court will not order specific performance where the goods in question are readily obtainable in the market.


case_title: Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905


case_text: As Weinberg J noted in Gribbles Pathology (Vic) Pty Ltd v Cassidy [2002] FCA 859 ; (2002) 122 FCR 78 at [115] , statutes commonly require the giving of notice or the invitation of submissions before a particular decision is made. The fact that a decision is preliminary (in the sense that it does not in itself affect rights without some further action being taken) does not obviate the duty to observe natural justice. Such decisions often affect ' important interests, including reputation, or legitimate expectations ' (at [115]). It is not necessary that the decision have direct or indirect legal effect ( Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564). The rules of natural justice apply where a statute confers a power to prejudice a person's rights, interests or legitimate expectations unless they are excluded by plain words ( Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596 at 598). 242 The duty to accord procedural fairness regulates the exercise of power where a statute confers power on a public official ' to destroy, defeat or prejudice a person's rights, interests or legitimate expectations ' ( Annetts at 598 per Mason CJ, Deane and McHugh JJ) or damage reputation ( Ainsworth at 577 8). The existence of a Part A competition notice opens the door for a range of proceedings to be issued against Telstra. In so doing, it exposes Telstra to the possibility of substantial penalties which accrue from the date of issue.


case_text: It is not the case that the Act purports to exclude the rules of natural justice. There is nothing in Pt XIB that amounts to unmistakable and unambiguous language clearly expressing an intention to exclude natural justice in connection with the issue of a Part A competition notice ( Plaintiff S157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at [30] per Gleeson CJ; cf Minister for Immigration & Multicultural Affairs v Lat [2006] FCAFC 61 ; (2006) 151 FCR 214 at [65] to [68] in considering s 51A of the Migration Act 1958 (Cth)). The fact that the Act provides for the provision of certain information in a s 151AKA(10) notice does not of itself evince an intention otherwise to exclude procedural fairness ( Miah at [139] per McHugh J) or, indeed, the possibility of the provision of further information or further consultation. The Act mandates the giving of certain information in a s 151AKA(10) notice as a minimum. Such latitude in the information to be provided is encompassed by the requirement to describe in summary form the kind of anti-competitive conduct proposed to be specified in the Part A competition notice. A "summary form" allows for a minimum but not a maximum of information to be provided. There is no inconsistency between the application of subss (9) and (10), which impose a minimum standard and a common law duty of procedural fairness ( Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at [10] ). 229 The Commission contends that the requirements of procedural fairness for the issue of a Part A competition notice are less onerous than those applicable to a quasi-judicial Tribunal determining, for example, whether a person is entitled to refugee status, as in VEAL . The Commission points to the flexible nature of the duty and the need to adapt to the statutory requirements. For example, a judicial hearing with rights of appeal must precede the pecuniary consequences arising from the issue of a Part A competition notice. The Commission also challenges the impact of the reasoning in VEAL and Kioa . It emphasises the comment by Brennan J in Kioa at 628 that the person whose interests are likely to be affected by the exercise of a statutory power does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. As Brennan J recognised in Kioa , '[a] dministrative decision-making is not to be clogged' by unnecessary inquiries. That observation is particularly relevant in a statutory context where the legislature has sought to respond to the fast moving pace of telecommunications markets and, in so doing, placed the Commission under an obligation to act expeditiously.


case_text: A "decision" to which the ADJR Act applies is, subject to exceptions that are not presently relevant, a decision of an administrative character made, proposed to be made, or required to be made, under an enactment or by a Commonwealth authority or an officer of the Commonwealth under an enactment (s 3(1) of the ADJR Act). A "decision" will generally, but not always, ' entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration' ( Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 337 per Mason CJ, with whom Brennan and Deane JJ agreed). It will also involve a substantive determination. ' If "decision" were to embrace procedural determinations, then there would be little scope for review of "conduct" ' as expressly contemplated by s 6 of the ADJR Act ( Bond at 337). 56 As Mason CJ observed in Bond , a reviewable decision for the purposes of s 5 of the ADJR Act is ' a decision which the statute requires or authorizes rather than merely a step taken in the course of reasoning on the way to the making of the ultimate decision ' (at 336). It is the case that s 151AKA(10) of the Act requires a notice under that section to be given prior to the issue of a Part A competition notice pursuant to s 151AKA(2). However, the satisfaction of that statutory prerequisite involves no "decision" of an administrative character. In order to comply with s 151AKA(10) the Commission must, as I have noted, give a notice stating that the Commission proposes to issue a Part A competition notice (s 151AKA(10)(a)(i)), describing in summary form the kind of anti-competitive conduct proposed there to be specified (s 151AKA(10)(a)(ii)) and inviting the carrier to make a submission within the specified time limit (s 151AKA(10)(a)(iii)). The Commission must then consider any submission received within time (s 151AKA(10)(b)). The discharge of those statutory obligations involves no determination of a substantive nature. The issue of a s 151AKA(10) notice is an action taken prior to the ultimate decision to issue a Part A competition notice upon satisfaction of the "reason to believe" threshold. That action is procedural in character and involves no "decision" within the meaning of s 5 of the ADJR Act. 57 It follows that, there being no relevant "decision", it is unnecessary to consider whether an extension of time should be granted under the ADJR Act to review the "decision" to issue the Consultation Notice. 58 That leaves for consideration whether the Commission's conduct in issuing the Consultation Notice is reviewable "conduct" within s 6 of the ADJR Act. No specific time limit applies to the review of conduct. "Conduct" engaged in for the purpose of making a decision includes ' the doing of any act or thing preparatory to the making of the decision ', including the taking of evidence or the holding of an inquiry or investigation (s 3(5) of the ADJR Act). It ' points to action taken, rather than a decision made, for the purpose of making a reviewable decision '. Conduct is ' essentially procedural and not substantive in character ' ( Bond at 341 2). 59 The issue of the Consultation Notice was more than merely a preparatory step in the deliberative or reasoning process of the reviewable decision to issue the Competition Notice ( Bond at 342). The issue of the Consultation Notice was "conduct" of the Commission within the meaning of s 6 of the ADJR Act and therefore reviewable pursuant to s 6 of the ADJR Act. It is also, in my view, amenable to review pursuant to s 39B(1A)(c) of the Judiciary Act . 60 The parties accept that s 39B of the Judiciary Act applies to the decision to issue the Competition Notice. Section 151AQA of the Act contemplates an application to the Court under s 39B(1) in relation to that decision and prevents the Court from staying the process to issue the notice pending the finalisation of the application. 61 The Commission submits that the statutory scheme does not contemplate there being a reviewable decision or conduct in connection with the issue of a s 151AKA(10) notice. It relies on two matters in so doing. First, there is no specific provision for such review. Secondly, a review at that stage of the process would, the Commission submits, be contrary to the requirement for the Commission to proceed expeditiously once it has "reason to suspect" that there has been a contravention of the competition rule. The Commission points out that it would be unable to complete the process of forming a "reason to believe" under s 151AKA(8) if persons were able to invoke s 39B of the Judiciary Act before the Commission had received and considered the written submissions as contemplated by s 151AKA(10). 62 There are a number of reasons why the Commission's submissions should not be accepted. There is no clear language excluding the right to invoke s 39B of the Judiciary Act . Importantly, s 39B(1A)(c) confers jurisdiction on the Court in any matter arising under any laws made by the Parliament other than an exception which does not apply here. The decision to issue the Consultation Notice is a matter arising by reason of Pt XIB of the Act. It is within jurisdiction whether it be considered a "decision" or "conduct" for the purposes of the ADJR Act. Further, in any event, it is accepted that there is jurisdiction under s 39B(1) of the Judiciary Act to review the Competition Notice. As Optus submits and the Commission accepts, a valid s 151AKA(10) notice is a prerequisite to the issue of a valid Part A competition notice. An assessment of whether the Consultation Notice complies with s 151AKA(10) is a necessary incident to the Court's review of the Commission's decision to issue the Competition Notice. 63 The discretionary matters raised by the Commission as to the appropriateness, in certain circumstances, of review of a s 151AKA(10) notice do not go to jurisdiction but to discretion in the granting of relief. If such relief is sought at an early stage, such as prior to the issue of a Part A competition notice and before any final or operative or determinative decision has been made, relief may be denied on substantive or discretionary grounds (Robertson A, "The administrative law jurisdiction of the Federal Court Is the AD(JR) Act still important?" (2003) 24 ABR 89 at 94).


case_text: It is accepted by the Commission that Telstra is a person ' entitled to make an application to [the Court]... under section 5 ' in relation to the decision to issue the Competition Notice (s 13(1)). The Commission submits, however, that that decision is a decision in connection with the institution or conduct of proceedings in a civil court and, by the application of para (f) of Sch 2 to the ADJR Act, not a decision to which s 13 of the ADJR Act applies. The Commission relies on the following matters in support of that submission: • The investigative nature of the Commission's role in deciding whether to issue a Part A competition notice, including the "reason to believe" threshold; • The close connection between the institution of proceedings in a civil court and the issue of a Part A competition notice, including the institution of proceedings for the recovery of pecuniary penalties, as emphasised by Telstra in its submissions as to the effect of a Part A competition notice; • The breadth of the expression "in connection with" as used in para (f) of Sch 2 ( Burswood Management Ltd v Attorney-General (Cth) (1990) 23 FCR 144 at 146); and • Authority to the effect that a decision to issue a s 155 notice is not a decision to which s 13 of the ADJR applies ( Ricegrowers Co-operative Mills Ltd v Bannerman (1981) 56 FLR 443).


case_text: In circumstances where the s 151AKA(10) notice and the Part A competition notice fulfil their statutory function, the carrier or carriage service provider is given sufficient information to enable it to alter its conduct and/or make submissions to the Commission in response to the s 151AKA(10) notice. In those circumstances, the statutory opportunity of ascertaining the relevant issues has been given ( Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591). 180 I have concluded that the Consultation Notice did not comply with s 151AKA(10) of the Act and that the Commission was not entitled to issue the Competition Notice. The Commission was required to and did not describe in summary form in the Consultation Notice or otherwise give to Telstra by way of additional information, the kind of anti-competitive conduct that was specified in the Competition Notice. 181 Telstra was not given a reasonable opportunity to consult, or to comment and make submissions, or to change its conduct to avoid the issue of the Competition Notice. Telstra was denied the opportunity to be heard in respect of the new and different subject matter. The statutory scheme, which included the right to such opportunity in order to afford procedural fairness, was not complied with. It follows that Telstra was denied procedural fairness. 199 Optus contends that it would only be if the Commission were to base its decision to issue the Competition Notice on some particular issue or material adverse to Telstra that was not apparent from the nature of the decision that procedural fairness would require that some step additional to the issue of the Consultation Notice be taken and says that this was not pleaded. This was sufficiently pleaded. Telstra relies in the statement of claim upon the alleged failure on the part of the Commission to give notice of the material and analysis on which the Commission based its allegations and statements in the Competition Notice as a basis of a failure to accord procedural fairness and natural justice. Telstra does not suggest that it was entitled to material reflecting the Commission's thought processes. Nor was it entitled to the Commission's own evaluation of Telstra's conduct or information supplied by it ( Alphaone at 592). 200 The Guidelines contemplate complainants and other interested parties providing submissions to the Commission. The giving of ' careful consideration ' to those submissions is said to be one means by which the Commission endeavours to achieve its objectives (p 5 of the Guidelines). The Commission did, by media release dated 22 December 2005, invite such submissions. Telstra submits that it should be inferred that those submissions were provided by third parties and were taken into account. It points to the fact that Optus issued its detailed statement of claim against Telstra in the Optus proceeding only 6 days (including the 4 day Easter break) after the Competition Notice issued and that that makes it ' tolerably plain ' that Optus and the Commission have been working closely together. 202 Where the Consultation Notice was insufficient as described, Telstra was entitled to be given additional information to be able to provide the meaningful submission contemplated by s 151AKA(10). Where the differences between the notices were as described earlier in these reasons, it is reasonable to assume that, acting bona fide in the context of the Consultation Notice, the Commission relied upon additional material and material adverse to Telstra that went to the matters not described in the Consultation Notice. If the Commission based its decision to issue the Competition Notice on some particular issue or material adverse to Telstra that was not apparent from the Consultation Notice, procedural fairness would require that some step additional to the issue of the Consultation Notice be taken ( Alphaone at 591-2). Telstra was entitled to be given notice of that material or the substance of it. The Commission accepts that, if it was obliged to provide that material to Telstra which it denies, Telstra was not accorded procedural fairness ( Telstra Corporation Limited v Australian Competition and Consumer Commission (2006) 68 IPR 571 at [30]). Failure to provide such information was a denial of procedural fairness or natural justice. 228 The decision to issue a Part A competition notice pursuant to s 151AKA(2) of the Act consequent upon a s 151AKA(10) notice being given was likely to affect and be adverse to Telstra's interests. In those circumstances, the Commission was required to give Telstra the opportunity to ascertain the relevant issues. Where the exercise of the statutory power attracts the requirements of procedural fairness, Telstra was entitled to put information and submissions to the Commission ( Alphaone at 591-2). The Commission was obliged to identify any issue critical to the decision to issue the Competition Notice which was not apparent from the Consultation Notice and any adverse conclusions, but not the reasoning process, which had been arrived at and which would not obviously be open on the material known to Telstra ( Alphaone at 592).


case_text: There is no general principle that uncertainty in an executive instrument spells invalidity ( Television Corporation Ltd v The Commonwealth [1963] HCA 30 ; (1963) 109 CLR 59 at 71 per Kitto J). The question is whether what has been done in fact answers the description of what the statute permits to be done in law. A statutory notice such as a s 151AKA(10) notice or a Part A competition notice (together, 'the Statutory Notices') must not be so vaguely expressed that its meaning of application is a matter of real uncertainty. The Statutory Notices must convey, with reasonable and sufficient clarity and certainty, the subject matter with which they deal and enable the recipient to know what is required if their issue is to be a valid exercise of statutory power ( Television Corporation Ltd at 70 per Kitto J; SA Brewing Holdings Ltd v Baxt (1989) 23 FCR 357 at 369 per Fisher and French JJ (with whom Wilcox J agreed); Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368 at 373, 374 per the Full Court). Where different kinds of subject matter are dealt with by different statutory provisions, the Statutory Notices should specify or make clear which particular aspects of the statutory regime are referred to and/or relied upon ( Department of Industrial Relations v Forrest (1990) 21 FCR 93 at 118 per Lockhart and Hill JJ). 41 Telstra relies on observations by Lockhart and Hill JJ in Forrest at 118 to suggest, in effect, that the Consultation Notice must make explicit on its face every nuance or explanation without regard to the fact that Telstra, as the recipient, has knowledge of and understood certain of the terminology and subject matter. Their Honours in Forrest were referring to a different kind of notice: a conclusive certificate under s 34 of the Freedom of Information Act 1982 (Cth) ('the FOI Act'). The Court there was concerned with whether that notice would be uncertain to a review Tribunal charged with the function of determining whether reasonable grounds existed for the documents the subject of the certificate to be exempt from the FOI Act. In the present case, the s 151AKA(10) notice sought information from a recipient in the industry about its own processes. 42 The purpose of a s 151AKA(10) notice is to provide the affected carrier or carriage service provider with an opportunity to make a submission to the Commission on its proposal to issue a Part A competition notice. The Commission is obliged, by the Act, to consider any such submission. To achieve its purpose, a s 151AKA(10) notice must provide sufficient detail to enable a real, practical and reasonably specific response as to whether or not the recipient is engaging in the kind of conduct alleged and whether that conduct is anti-competitive. Further, a s 151AKA(10) notice is not of a mere advisory character. It should provide sufficient information to enable consideration of a possible modification of conduct.


case_text: As I have noted earlier, where the subject matter of the Competition Notice is conduct, the recipient is entitled to know what is required of it ( Television Corporation at 70 per Kitto J). Absence of information will involve a failure to provide necessary details if, without such information, the notice will not fulfil the purpose for which it is required to be given ( Deputy Commissioner of Taxation v Woodhams [2000] HCA 10 ; (2000) 199 CLR 370 at [33] ). However, a notice analogous to a notice before action is not intended to serve the purpose of a statement of claim if and when action is taken ( Woodhams at [35] and [37]). Despite the complexity and alleged ambiguity of the Statutory Notices on which Telstra relies, in context, the conduct described is sufficiently clear within each notice.


case_text: The severity of prospective penalties or consequences of failure to comply with a statutory notice that flow from the subject matter and the impact of the characterisation of the conduct are relevant factors in identifying the requisite degree of certainty (see Pyneboard at 374 , Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187 at 208 per Hill J). Account is to be taken of the statutory context in which the issue of a statutory notice arises and of the relevant interests of third parties. To take an example relevant to a Part A competition notice, a third party may contemplate bringing an action for damages in reliance on that notice and has an interest in knowing with clarity the ambit and scope of the notice. 40 The question is whether a reasonable person in the position of the addressee of a statutory notice can fairly comply with its requirements or take advantage of the opportunity offered ( Fieldhouse at 208 per Hill J with whom Burchett J relevantly agreed). The Statutory Notices are concerned with the conduct of carriers or carriage service providers and can only be given to a carrier or a carriage service provider. In this case, the Statutory Notices were given to Telstra, a sophisticated, well-advised company with significant telecommunications experience. The notices followed a course of correspondence between Telstra and the Commission concerning the subject matter of the notices. Context may make something certain that, in the abstract, is uncertain.


case_text: The Commission contends that the fact that it has "reason to believe" in relation to the conduct described in the Competition Notice is a relatively low threshold. The Commission draws in aid observations directed to the phrase "reason to believe" in cases concerning s 155 of the Act. In that context, the phrase is directed to a belief that a person is capable of furnishing information or producing, for example, documents relating to a matter that constitutes or may constitute a contravention of the Act. Telstra does not accept that this is analogous to the requisite reason to believe that a carrier or carriage service provider has engaged or is engaging in relevant anti-competitive conduct for the purposes of s 151AKA(8). It submits that the requisite state of mind requires the existence of facts which are sufficient to induce that state of mind in a reasonable person ( George v Rockett [1990] HCA 26 ; (1990) 170 CLR 104 at 112). 110 The basis for the belief is set out in the correspondence and in the Consultation Notice. Telstra has not demonstrated that there was an absence of such belief prior to the issue of the Competition Notice. I will turn to consider the terms of the Competition Notice. 111 The Commission accepts that, if the Consultation Notice did not conform to the requirements of the Act such that no notice was given pursuant to s 151AKA(10), it was not in the position to issue a valid Part A competition notice.


case_text: As Weinberg J noted in Gribbles Pathology (Vic) Pty Ltd v Cassidy [2002] FCA 859 ; (2002) 122 FCR 78 at [115] , statutes commonly require the giving of notice or the invitation of submissions before a particular decision is made. The fact that a decision is preliminary (in the sense that it does not in itself affect rights without some further action being taken) does not obviate the duty to observe natural justice. Such decisions often affect ' important interests, including reputation, or legitimate expectations ' (at [115]). It is not necessary that the decision have direct or indirect legal effect ( Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564). The rules of natural justice apply where a statute confers a power to prejudice a person's rights, interests or legitimate expectations unless they are excluded by plain words ( Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596 at 598).


case_text: Optus accepts that there must be a relevant connection between the notices. It submits that the instance of anti-competitive conduct in the Competition Notice must, ' in broad terms ', be an instance of the same kind as that described in summary form in the Consultation Notice. The Commission cannot ' significantly alter ' the kind of conduct. Whether the relevant connection is maintained requires an evaluative judgment ( Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 at [54]). A narrowing or specification of the kind of conduct with greater precision is permitted but the description must, Optus submits, in substance be of the same kind of conduct. 145 The parties provided detailed schedules of all of the differences between the Consultation Notice and the Competition Notice. The Competition Notice is not meant to mirror the Consultation Notice. It is expected to be responsive to the submissions consequent on the Consultation Notice. To the extent that further definitions are included and further particulars and explanations of terms used in the Consultation Notice are given, the subject matter of the notices cannot be said to be substantively different. 146 I now turn to consider some of the differences in the Consultation Notice: • Local Services is in terms of line rental " and / or " local call services supplied to Retail Customers (para 1(a)) (my emphasis). • Retail Customers include the whole class of residential end-user customers (para 1(d)). • The Relevant Conduct is described with reference to the Home Access increase in circumstances where there was no commensurate increase in the pricing of the range of Telstra's retail Local Services products when assessed as a weighted average (para 5). • The Other Conduct refers to one of the retail Local Services products, the HomeLine Part. The reference is to the HomeLine Part increase, which was for local call services but not for fixed-to-mobile, long distance and international call services (para 6). • The Retail Fixed Services Market is the market for the supply of fixed services including Local Services products " as well as" fixed-to-mobile, long distance and international call services (para 8(b)) (my emphasis). • The conduct said to have the effect or likely effect on competition is the Relevant Conduct alone or together with the Other Conduct (para 12). • The "price squeeze" that is said to result from the taking advantage of market power in the Wholesale Local Services Market is the effect on "Telstra's rivals" who are Telstra's wholesale customers in the Retail Fixed Services Market and their ability to compete effectively with Telstra in that market (para 12).


case_text: The Commission refused to provide Telstra with material on which it relied in coming to a decision to issue the Competition Notice and on which it based the allegations and statements in the Competition Notice which were not included in the Consultation Notice. Telstra submits that the failure on the part of the Commission to provide that information, which was necessarily significant to the decision ( Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 629 per Brennan J), constituted a denial of procedural fairness. 195 Optus accepts that Telstra was entitled to be informed of the nature and subject of the matter under consideration and to be afforded the right to be heard in respect of the issues on which the decision was based. However, it submits that Telstra was not entitled, at the stage of examination and consideration by the Commission, to see any material that was adverse to its interest. 227 There is no dispute that a common law duty of procedural fairness must accommodate to the statutory scheme. As stated by Mason J in Kioa at 585, the statutory power: ' must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations. ' 229 The Commission contends that the requirements of procedural fairness for the issue of a Part A competition notice are less onerous than those applicable to a quasi-judicial Tribunal determining, for example, whether a person is entitled to refugee status, as in VEAL . The Commission points to the flexible nature of the duty and the need to adapt to the statutory requirements. For example, a judicial hearing with rights of appeal must precede the pecuniary consequences arising from the issue of a Part A competition notice. The Commission also challenges the impact of the reasoning in VEAL and Kioa . It emphasises the comment by Brennan J in Kioa at 628 that the person whose interests are likely to be affected by the exercise of a statutory power does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. As Brennan J recognised in Kioa , '[a] dministrative decision-making is not to be clogged' by unnecessary inquiries. That observation is particularly relevant in a statutory context where the legislature has sought to respond to the fast moving pace of telecommunications markets and, in so doing, placed the Commission under an obligation to act expeditiously.


case_text: The Commission accepts for present purposes that, consistent with authority binding on this Court ( Hot Holdings Pty Ltd v Creasy [1995] HCA 60 ; (1996) 185 CLR 149), it was required to afford Telstra procedural fairness in relation to the issue of the Competition Notice at common law. Optus accepts that s 151AKA(10) of the Act does not displace the Commission's obligations of procedural fairness. The Commission wishes to reserve the question whether a common law duty exists should the occasion to contend otherwise arise but submits that, in any event and in the specific statutory context, the scope and content of that obligation have been satisfied. Put another way, the Commission says that the common law duty extends no further than what is required by s 151AKA(10). Optus submits that s 151AKA(10) reflects the procedural fairness required and that that obligation has been complied with. 223 I do not accept the Commission's submission that the requirement to afford procedural fairness takes its content only from s 151AKA(10) of the Act. While the requirements of s 151AKA(10) of the Act clearly inform the obligation to accord procedural fairness at common law they do not displace it.