case_title: Corlette v Mackenzie (1995) 62 FCR 584

case_text: the same case, Brennan J (at 84 85) and Dawson J (at 97 98) made statements to a similar effect. A number of the relevant authorities were also gathered together and discussed by Beazley J in Corlette v Mackenzie (1995) 62 FCR 584 at 589 593. The Preamble to the new Act provides as follows: Preamble The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity. The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations: (a) by pledging loyalty to Australia and its people; and (b) by sharing their democratic beliefs; and (c) by respecting their rights and liberties; and (d) by upholding and obeying the laws of Australia. Australian citizenship is a privilege. However, the Parliament is to be taken as wanting to encourage as many persons who are relevantly connected to Australia to take up what is described in the Preamble as: ... full and formal membership of the community of the Commonwealth of Australia ...


case_outcome: followed

case_text: [34] [39] of its reasons, the Tribunal considered the question of whether the activities undertaken by the applicant in the period from 5 May 2004 to 29 June 2007 were activities beneficial to the interests of Australia. At [35] of its reasons, the Tribunal referred to the decision of Einfeld J in Minister for Immigration Local Government and Ethnic Affairs v Roberts [1993] FCA 80 ; (1993) 41 FCR 82 and then said: Mr Lin has tried to demonstrate a mainly commercial stream of benefit although he has personal links to Australia as well through his children. I acknowledge that Mr Lin has taken steps towards benefiting Australia but he has not demonstrated that he spent much of his time on activities that benefit Australia while he was overseas during the 5 years before his application. Counsel for the Minister also submitted that, for the elements of subitem (8)(4)(a) of Item 7 to be satisfied, there needs to be some objective benefit to some public interest of Australia and that this means more than the private interests of the applicant (see Re Tinamisan and Minister for Immigration and Multicultural Affairs (1996) 43 ALD 349 ; and Roberts [1993] FCA 80 ; 41 FCR 82). The Third and Fourth Questions of Law and Grounds 2 and 3 The phrase beneficial to Australia was explained by Einfeld J in Roberts [1993] FCA 80 ; (1993) 41 FCR 82 at 87 as follows: It seems to me that the term "activities beneficial to the interests of Australia" means something in the nature of activities which provide some advantage to Australia, whether commercial or otherwise. The concept necessarily connotes some public interest of Australia, even if of a general or non-specific character, and means more than the private interests of the respondent. The section requires some objective benefit to Australia. I agree with his Honour's observations. However, I wish to add some observations of my own. The advantage or benefit to Australia contemplated by the language of subs (4)(a) must be real and not merely potential or hypothetical. That advantage or benefit must be identifiable and not de minimis. It must also be remembered that what is required by that subsection is that the Minister consider that the activities are beneficial to Australia. This imposes a requirement that the Minister act both honestly and rationally in forming the view which he or she is required to form. In my view, it is perfectly appropriate for the Minister to have regard to the ACI in considering whether or not the relevant activities are beneficial to Australia. I will now turn to the questions of law raised in the appeal and the application of the above principles to the facts and circumstances of the present case. The Present Case and the Questions of Law Raised in the Appeal The first question of law, as amplified by particular (a) to Ground 1, does not, in my view, arise in the present case. I do not think that the Tribunal proceeded upon the basis that activities undertaken through and on behalf of a corporation could never qualify as activities engaged in by the citizenship applicant for the purpose of subs (4)(a) of the transitional s 22. In its reasons, the Tribunal quoted extensively from the ACI. The ACI does not specifically refer to a dichotomy of the kind about which the applicant complains in this appeal and the general tenor of its language suggests that individuals may take the benefit of activities carried out by them (ie through their personal efforts) even though those activities were carried out during the course of their employment by a corporation. Further, at [26] of its reasons, the Tribunal expressly stated that it would regard the applicant's efforts in the business of Australian Mingsheng as activities which might count as activities of the relevant kind for the purposes of subpar (a) of subs (4) of the transitional s 22, should the remaining criteria prescribed by subs (4) be satisfied. At [27] of its reasons, the Tribunal held that the relevant activities in 2004 had not been established as being beneficial to Australia with the consequence that the applicant could not take the benefit of them personally for the purposes of subs (4) of the transitional s 22. The rejection of the applicant's claims in this regard was not on the basis that the activities were for the benefit of the corporation (Australian Mingsheng) but rather on the basis that they had not been proven to be beneficial to Australia. In respect of the later periods of time with which the Tribunal expressly dealt, the reasoning of the Tribunal manifested a similar approach.


case_outcome: applied

case_text: Court has to adopt a practical approach when considering whether or not relief should be granted as a result of its determination of questions of law pursuant to s 44 of the AAT Act. In the present case, the approach taken by the Tribunal in grouping together shorter periods of time into calendar years or, as was the case in 2006 and 2007, into an 18 month period, did not distort or place a different complexion upon those matters which were advanced by the applicant as supporting his subs (4) claims. In my view, had the approach which I have held is the correct approach strictly been taken in the present case the ultimate conclusions reached by the Tribunal in respect of the applicant's subs (4) claims would not have been any different. Further, the only questions of law raised by the applicant are those which I have extracted at [24] above. The applicant did not raise any question or issue concerning the way in which the Tribunal approached the delineation of the periods which it considered might receive subs (4) treatment. To send the matter back to the Tribunal in those circumstances would be futile. The Court will not take that course if to do so would be futile (see Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560 562; and Commissioner of Taxation v Eskandari [2004] FCA 8 ; (2004) 134 FCR 569 at [50] [54) (pp 583 584).


case_outcome: cited

case_text: Tribunal then went on to consider the remaining activities in which the applicant was involved in the period 2005 2007 and, at [36] [39] of its reasons, said the following: The activities for Changsha Huiminshen Property Co Ltd, which resulted in a substantial involvement of Australians in a major project, are more in the nature of activities Mr Lin performed for this private entity in my view. He has not produced convincing evidence that he was personally responsible for or largely engaged in activity which brought about this result. Activities for an employer do not satisfy the requirements although an exception may be made in instances such as those for an entity wholly or substantially owned and controlled by an applicant: see Re Tinamisan and Minister for Immigration and Multicultural Affairs (1996) 43 ALD 349. Exports are not intrinsically beneficial to Australia although I have accepted that Mr Lin's significant exports in late 2006 onwards were beneficial: see Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs [1993] AATA 166 ; (1993) 30 ALD 447. Even if the contract with the Australian design company were taken as an export of services, the contract is with an entity in which Mr Lin plays only a part. Mr Lin's evidence about the time he spent on activities that involved his Australian business interests and development of business ties also did not create an impression that he spent the bulk of his time on these matters. He divides his time among his several business enterprises in China and Australia, and merely pressing his Australian contacts when talking to Chinese business interests is not sufficient to establish activities beneficial to Australia and which comprised a large proportion of his time. As I am not satisfied that Mr Lin engaged sufficiently in activities that were beneficial to Australia from mid 2002 for 2 years out of five or from mid 2005 for one year out of two, leading up to his application on 29 June 2007, Mr Lin has not met the residency requirements of subitem 7(8)(1) and (4) and cannot be granted citizenship on this basis. I have also considered whether Mr Lin is likely to reside, or to continue to reside in Australia or to maintain a close and continuing association with Australia if his application were to be approved. This is a requirement of subsection 21(2)(g). I am not convinced by the evidence before me, on balance, that Mr Lin is likely to increase his stays in Australia than previously, despite two of his children being Australian citizens. Mr Lin, in my view, is still heavily engaged in his various businesses in China and the tenor of his evidence was that his presence would be required there in connection with property developments in which he is involved. As Mr Lin has not spent the requisite time in Australia, being two years out of five and one year out of two preceding his application, and has not demonstrated that his activities during time spent overseas were beneficial to Australia, he cannot succeed in his present application. His absences overseas mean he does not satisfy the residence requirements of sections 21 and 22 of the new Act pursuant to subitems 7(2) and 7(8) of the Transitional Act. It may be that he will meet criteria eventually if he continues with and expands his activities which benefit Australia, however, as at the date of his application Mr Lin was not entitled to conferral of Australian citizenship. The Tribunal then affirmed the delegate's decision. At the commencement of the hearing before me, the applicant sought leave to amend his Notice of Appeal. There was no opposition by the respondent to the amendments sought. Accordingly, I granted leave to the applicant to amend his Notice of Appeal in the manner sought by him. Counsel for the Minister also submitted that, for the elements of subitem (8)(4)(a) of Item 7 to be satisfied, there needs to be some objective benefit to some public interest of Australia and that this means more than the private interests of the applicant (see Re Tinamisan and Minister for Immigration and Multicultural Affairs (1996) 43 ALD 349 ; and Roberts [1993] FCA 80 ; 41 FCR 82). The Third and Fourth Questions of Law and Grounds 2 and 3


case_title: NBGI v MIMIA [2005] FCAFC 233

case_text: written submissions, the respondent contends that the operative order is the order of 6 October 2005. His Honour embarked upon consideration on 19 June 2006 of whether the applicant had complied with the order of 6 October 2005 and having made a finding that the applicant was in default, his Honour declared that the proceeding stood dismissed from 14 October 2005. His Honour did not, on 19 June 2006, dismiss the application. His Honour embarked upon a determination of whether the condition upon which the order rested was satisfied and declared that the order took effect according to its terms. The order of 6 October 2005 is the source of the dismissal of the application. The order is a conflation of two things, namely, an order that the applicant take a step by a certain date and an order that upon default the proceeding 'stands dismissed' as to the whole of the relief claimed by the applicant (see Order 35A, r 2 and r 3). The order made on 19 June 2006 is declaratory of the construction of the order of 6 October 2005 and not, in my view, the operative order of dismissal of the application. See NBGI v MIMIA [2005] FCAFC 233 per Black CJ, Finkelstein and Allsop JJ at [11] and Lenijamar Pty Limited v AGC Advances Limited (1990) 27 FCR 388. Orders 2, 3 and 4 of his Honour's order of 19 June 2006 are operative orders in terms of the subject matter they address.


case_title: Lenijamar Pty Limited v AGC Advances Limited (1990) 27 FCR 388


case_text: is no doubt that the Court has power, after the event, to extend the time for the filing of an amended application. See Sammy Russo Meat Supplies Pty Ltd v Australian Safeway Stores Pty Ltd [1999] FCA 1381 per Goldberg J at [21], FAI General Insurance Co. Ltd v Southern Cross Exploration NL (1987 1988) [1988] HCA 13 ; 165 CLR 268 at pp 283-284; Lowe v Mack Trucks Australia Pty Ltd [2001] FCA 388 ; Goodwill Group Pty Ltd v Pongrass Associates Pty Ltd [2002] FCA 1203 per French J at [103].


case_title: Lowe v Mack Trucks Australia Pty Ltd [2001] FCA 388


case_title: Goodwill Group Pty Ltd v Pongrass Associates Pty Ltd [2002] FCA 1203


case_text: this application, the applicant seeks an order staying the orders of 19 June 2006 which comprise four orders. Since order 1 of the orders of 19 June 2006 is not an operative order effecting a dismissal, I do not propose to stay the operation of the declaration as to the effect of the order of 6 October 2005 from the date of the failure to comply with the condition. Order 3 of the order of 19 June 2006 is a refusal of an extension of time for compliance with the order of 6 October 2005. That matter is the subject of leave to appeal. If the appeal is meritorious, the Court has power to set aside order 3 and extend time to enable an amended application to be filed thus reinstating the application. An application to stay a refusal to extend time is apt to be construed as an order extending time. That matter is before the Full Court. The applicant also seeks a stay in respect of the orders of 6 October 2005. I propose to stay order 1 of that order, pending the determination of the appeal (with leave) from the refusal on 19 June 2006 to extend the time for the filing of an amended application, to the extent that the order of 6 October 2005 provides, prospectively, that the application 'stands dismissed'. The respondent does not oppose the application for a stay which I understand to mean that the respondent submits that in exercising the discretion I ought to be satisfied that there is at least an arguable case to be made, although not a persuasive case, in support of the appeal with leave consistent with Powerflex Services Pty Ltd v Data Access Corp. (1996) 137 ALR 498 and Alexander v Cambridge Credit Corp. Ltd (Receivers Appointed) (1985) 2 NSWLR 685. Prima facie, of course, the judgment appealed from is correct and a successful party is entitled to the benefit of the judgment obtained by him and is entitled to commence with the presumption that the judgment is correct ( Re Middle Harbour Investments Ltd (In Liq) (No. 2) [1977] 2 NSWLR 652.


case_title: Alexander v Cambridge Credit Corp. Ltd (Receivers Appointed) (1985) 2 NSWLR 685


case_title: Re Middle Harbour Investments Ltd (In Liq) (No. 2) [1977] 2 NSWLR 652


case_outcome: discussed

case_text: 5 August 2008, the respondent issued a Summons in the Industrial Relations Court of South Australia (IRCSA) alleging that at all material times of her employment she was performing duties covered by the Clerks' Award (SA) (the Clerks Award) and then from 27 March 2006 under the Notional Agreement Preserving the State Clerks' Award (Cth) (the Clerks NAPSA). She sought the underpayment of her claimed entitlements and interest, that is the difference between what she was paid pursuant to the Fitness Award and the Fitness NAPSA and what she contended she should have been paid pursuant to the Clerks Award and the Clerks NAPSA. The IRCSA had jurisdiction to entertain that claim under s 14(a) of the Fair Work Act 1994 (SA) (the FW Act) and as an "eligible court" as defined in s 717 and pursuant to s 720 of the Workplace Relations Act 1996 (Cth) (the WR Act), including the claim arising under the federal instrument, relevantly the Clerks NAPSA: see ISS Health Support Services Pty Ltd v Duthie [2007] SAIRC 94 ( ISS Health v Duthie ). The appellant denied that the respondent was performing the duties covered by the Clerks Award and the Clerks NAPSA as contended, and argued that the relevant instruments were the Fitness Award and the Fitness NAPSA. The IRCSA appeal was listed for hearing on 30 April 2009. On 2 April 2009, his Honour Senior Judge Jennings gave directions for the exchange of outlines of submissions in relation to both the jurisdictional issue and the merits of the appeal. It is unclear what the "jurisdictional issue" is. It may be that there is an issue as to whether an appeal lies without the making of orders (although as noted in [8] of these reasons, s 187(1) of the FW Act would appear to accommodate such an appeal). It may be that there is an issue whether that appeal is competent, having regard to the "matter" including the federal element and the provisions of ss 850(2) and 853 of the WR Act. As to that, see the decision in ISS Health v Duthie [2007] SAIRC 94 at [45] . See also Kronen v Commercial Motor Industries Pty Ltd (CMI Toyota) [2008] FCAFC 171 ( Kronen ) at [4] and [7]. It may be that the appeal may be incompetent because it is not an appeal from the whole of the decision, but only that part of it which related to the period up to 26 March 2006.


case_text: Federal Court on any appeal, being seized of "the matter" as described in [2] hereof, would have jurisdiction to deal with all questions arising in relation to it: R v Bevan; Ex parte Elias and Gordon [1942] HCA 12 ; (1942) 66 CLR 452 ; Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 ; Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511 at 585. In Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572 ; (2000) 104 FCR 564 French J (as he then was) said at 597 [85]: Jurisdiction conferred on a Federal Court in respect of a matter authorises the Court to determine all the claims, federal and non-federal, which are involved in the controversy. That the federal claim is determined adversely to the applicant does not thereby deprive the Court of jurisdiction to deal with the non-federal claims. They are all part of the federal jurisdiction conferred upon the Court.


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


case_title: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572 ; (2000) 104 FCR 564


case_text: IRCSA appeal was listed for hearing on 30 April 2009. On 2 April 2009, his Honour Senior Judge Jennings gave directions for the exchange of outlines of submissions in relation to both the jurisdictional issue and the merits of the appeal. It is unclear what the "jurisdictional issue" is. It may be that there is an issue as to whether an appeal lies without the making of orders (although as noted in [8] of these reasons, s 187(1) of the FW Act would appear to accommodate such an appeal). It may be that there is an issue whether that appeal is competent, having regard to the "matter" including the federal element and the provisions of ss 850(2) and 853 of the WR Act. As to that, see the decision in ISS Health v Duthie [2007] SAIRC 94 at [45] . See also Kronen v Commercial Motor Industries Pty Ltd (CMI Toyota) [2008] FCAFC 171 ( Kronen ) at [4] and [7]. It may be that the appeal may be incompetent because it is not an appeal from the whole of the decision, but only that part of it which related to the period up to 26 March 2006. In Kronen [2008] FCAFC 171 , an Industrial Magistrate of the IRCSA had considered claims for underpayment of wages for overtime work and for underpayment of superannuation contributions. The written reasons for judgment dismissed the claim for overtime pay, but made no order reflecting the Industrial Magistrate's conclusions on the superannuation claim. The Full Court (Gray, Branson and Lander JJ) observed at [14]: The industrial magistrate made no order reflecting the conclusions he had reached on the superannuation claim. He neither dismissed the claim (which he was bound to do, if he came to the conclusion that he had no power to order the making of payments) nor made any purported declaration reflecting the conclusion to which he had come as to the meaning and effect of the provisions of the Award relating to superannuation. His Honour seems to have thought that the expression of a conclusion in his reasons for judgment was sufficient. It was not. The whole of the application by summons before the court needed to be dealt with. Plainly, because the court lacked jurisdiction to deal with the superannuation claim, that aspect of the application was required to be dismissed. There is nothing in the FW Act (which continues the existence of IRCSA established first under the Industrial Relations Act 1972 (SA) which requires its decisions to be reflected in formally drawn orders so that its orders must be drawn up and sealed. Nor is there anything in the South Australian Industrial Proceedings Rules (SA) dealing with those topics. In Kronen [2008] FCAFC 171 , the Full Court clearly accepted that the expression of an order dismissing the claim for overtime payments in the reasons for decision was sufficient to enliven the right of appeal, subject to granting leave to appeal if that were necessary: see at [15]. Clearly, that decision is different from the present circumstances. It is clear that the fact that the IRCSA does not routinely draw up formal orders after a decision (including reasons for decision) does not of itself impede the right of appeal under s 853 of the WR Act: see Kronen [2008] FCAFC 171. It therefore falls to consider whether the Industrial Magistrate, in particular by [39] of his reasons set out above, has in substance finally determined the issue as to how the parties' legal rights are to be assessed. Had the word "determine" been substituted for the word "conclude", or been used in conjunction with it, there would in my view have been no scope for debate about that. The limited liberty to apply as to the quantum reflects such an intention. In my view, the existence or otherwise of a right of appeal should not be determined by the precise word or words used, but by their substantive effect. I do not need to decide that issue because the appellant has taken upon itself to have this appeal dismissed. However, I think there is at least a reasonable basis to conclude that the Industrial Magistrate intended to, and did, finally determine the issue of principle in a binding way and that his expression at the conclusion of his reasons was intended to, and did, operate in that way. In any event, if there were any ambiguity, the Industrial Magistrate could have been asked to clarify the meaning of [39] of his reasons so as to indicate whether he intended it to be the operative judicial determination of that issue, or further, his Honour could have been asked to make such an operative judicial determination. The notice of appeal filed in the Federal Court, in the latter event, could have been allowed to stand as if that operative determination had been made at the time of the publication of the reasons and any necessary extension of time granted. No party would thereby have been prejudiced, and indeed the respondent opposed the stay motion and wanted to proceed with the appeal. I turn to consider the issue of the costs of the appeal. Section 824 of the WR Act relevantly provides: (1) A party to a proceeding (including an appeal) in a matter arising under this Act ... must not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause. (2) Despite subsection (1), if a court hearing a proceeding (including an appeal) in a matter arising under this Act ... is satisfied that a party to the proceeding has, by an unreasonable act or omission, caused another party to the proceeding to incur costs in connection with the proceeding, the court may order the first-mentioned party to pay some or all of those costs. (3) In subsections (1) and (2): costs includes all legal and professional costs and disbursements and expenses of witnesses.


case_text: right of appeal has a statutory source: Attorney-General v Sillen [1864] EngR 352 ; (1864) 10 HL Cas 704 at 720; Grierson v R [1938] HCA 45 ; (1938) 60 CLR 431 at 435; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3 ; (1999) 160 ALR 588 at [72] . Under s 24(1)(c) of the Federal Court of Australia Act 1976 (Cth), this Court has jurisdiction to hear appeals from judgments of a State Court exercising federal jurisdiction where an Act so provides. Section 853(1) of the WR Act, the relevant part of which is set out in [9] hereof, so provides. The question is whether the Industrial Magistrate has given a "judgment", as defined: see [10] above.


case_title: State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3 ; (1999) 160 ALR 588


case_text: is plain enough, as the appellant submitted, that the words "judgment, decree or order" should bear the same meaning as that in s 73 of the Constitution : Moller v Roy [1975] HCA 31 ; (1975) 132 CLR 622 ; Ah Toy v Registrar of Companies (1985) 10 FCR 280 ( Ah Toy ). It follows that reasons for judgment are not themselves judgments, and that there is no appeal against reasons standing alone: Hi-fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 3) (1998) 86 FCR 374 at 378 per Beaumont J. The appellant thus correctly identified the question whether there is any operative judicial act, beyond the expression of reasons which might form the basis for later orders. It said that there were no orders made in this matter, because there is no obligation on any party to do or refrain from doing any act and no determination of the amount payable under the applicable instruments.


case_text: is plain enough, as the appellant submitted, that the words "judgment, decree or order" should bear the same meaning as that in s 73 of the Constitution : Moller v Roy [1975] HCA 31 ; (1975) 132 CLR 622 ; Ah Toy v Registrar of Companies (1985) 10 FCR 280 ( Ah Toy ). It follows that reasons for judgment are not themselves judgments, and that there is no appeal against reasons standing alone: Hi-fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 3) (1998) 86 FCR 374 at 378 per Beaumont J. The appellant thus correctly identified the question whether there is any operative judicial act, beyond the expression of reasons which might form the basis for later orders. It said that there were no orders made in this matter, because there is no obligation on any party to do or refrain from doing any act and no determination of the amount payable under the applicable instruments. In Ah Toy (1985) 10 FCR 280 , the Full Court held that an appeal from findings made in the reasons of the Chief Justice of the Supreme Court of the Northern Territory who had conducted an inquiry under s 278 of the Companies Act (NT) into the conduct of the putative appellant as the liquidator of a particular company was incompetent. The findings were followed by a series of orders under s 278(2) that the putative appellant make good to the company its loss caused by certain actions taken by the liquidator. There was initially no appeal from some of the orders themselves; that was done by amendment at the hearing relating only to some of the challenged findings which did not relate directly to the liquidator. Not surprisingly, the Full Court regarded as incompetent the amended appeal to the extent that it challenged only those findings unrelated to the orders. In Ah Toy (1985) 10 FCR 280 , the Full Court at 285-6 addressed various authorities considering what constitutes a "judgment, decree or order". I shall not repeat them. In essence, that expression covers only the operative judicial acts, binding upon the parties and determinative of their legal rights. It must involve the formal judicial act or order by which the Court disposes of the matter before it.


case_title: Hi-fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 3) (1998) 86 FCR 374


case_text: Full Court subsequently considered the valid appeal: Ah Toy v Registrar of Companies (1985) 10 FCR 356.


case_text: matters such as the present, as I have noted, it is commonplace for the Court to decide the issue of principle between the parties, leaving it to them to then agree upon the consequential detailed calculations. The final determination of the issue of principle may operate only as an interlocutory judgment, as it does not finally dispose of all issues in the proceeding. It is akin to the separate determination of a question under O 29 of the Federal Court Rules , where an order recording such a determination may give rise to an appeal by leave under s 24(1A) of the Federal Court of Australia Act 1976 (Cth). However, s 853(2) of the WR Act provides that it is not necessary to obtain leave to appeal under s 853(1), and s 853(2) has consequently been held to prevail over the requirement for leave: Citigroup Pty Ltd v Mason [2008] FCA 389 ; (2008) 167 FCR 217 at [32] - [33] . The question remains whether the reasons of the Industrial Magistrate constitute a determination, binding upon the parties and determinative of their legal rights, notwithstanding that there is no formal or separate sealed order recording such a determination.


case_text: Australian Telecommunications Commission v Colpitts (1986) 12 FCR 395 , the Full Court found that an appeal from the decision of the Australian Telecommunications Commission was competent in the following circumstances. The decision was that the employee should be compulsorily retired for medical unfitness under s 56 of the Telecommunications Act 1975 (Cth). As required by s 56 , the Telecommunications Regulations 1975 (Cth) made provision for review of such a decision. The Review Tribunal decided that "there was insufficient evidence to recommend any alternative to the decision". The employee successfully challenged the validity of the decision of the Review Tribunal under the Administrative Decisions (Judicial Review) Act 1975 (Cth), including on the basis that the relevant regulations did not make proper provision for review of the initial decision so the initial decision under s 56 was itself invalid. The judge at first instance delivered reasons for judgment to that effect, and, although no formal judgment was entered, both in his reasons for judgment and by a minute of orders containing proposed orders accompanying them made declarations as to the invalidity of the decision to retire the employee and setting aside that decision. The primary judge also concluded that, in any event, the Review Tribunal had failed to accord the employee procedural fairness so that, but for the decision about the invalidity of the relevant regulations, the matter would have had to be remitted to the Review Tribunal for reconciliation. The Full Court regarded the appeal from the order setting aside the initial decision as competent, even though there was no challenge to its being set aside for breach of procedural fairness. That is, the appeal was regarded as competent even though it was accepted by the employer as appellant that the Review Tribunal decision should be set aside because procedural fairness was not given to the employee. Toohey J (with whom Fisher J agreed) said at 402-3 that the appeal was "from a finding implicit in the judgment" that the initial decision was also invalid because it must have been on that basis that the matter was not remitted to the Review Tribunal for reconsideration, but that the decisions were declared to be invalid.


case_text: The principles governing the exercise of the Court's power to summarily dismiss a claim on the ground that it discloses no reasonable cause of action, the principles which govern pleadings in this Court and the relevant authorities are conveniently summarised by Weinberg J in McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 ; (1999) 165 ALR 409 at 415-421. It is not necessary to restate, at length, his Honour's exposition of the relevant rules and the statements of principle which emerge from the cases to which he refers. It is sufficient, for present purposes, to note that: • The power to dismiss a claim because it discloses no reasonable cause of action will not lightly be exercised: see Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 128-130; Webster v Lampard [1993] HCA 57 ; (1993) 177 CLR 598 at 602-603. • The purpose of pleadings is to define the issues with sufficient clarity such that respondents understand, and have the opportunity to meet, the case made against them: see Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664; Mitanis v Pioneer Concrete (Vic) Pty Ltd [1997] ATPR 41-591 at 44, 151ff. • A statement of claim must plead all the material facts necessary for the purpose of formulating a complete cause of action. If it does not it is liable to be struck out: Mitanis ; Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712-713. • It is not sufficient for the pleader to state conclusions drawn from unstated facts: see Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109 at 114-5. • There will be cases in which the power to strike out pleadings will not be exercised notwithstanding a failure to plead all material facts. Such restraint will be appropriate where the deficiency causes no confusion and does not raise issues of substantive principle ( HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822 at [59] ), and where deficiencies can be overcome by ordering the provision of particulars or the furnishing of affidavits ( State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] ATPR 41-691 at 42,828-9). • Not all conclusionary pleadings will be struck out as being deficient: see Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association (WA) (1987) 13 FCR 413 at 417. Whether or not such a pleading should be struck out will depend on whether or not the facts are pleaded at too great a level of generality: see Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd [1991] FCA 557. 36 In McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 ; (1999) 165 ALR 409 Weinberg J (at 419) identified the pleading requirements for a cause of action under s 82 of the Act . His Honour said: "When a claim is made under s 82 of the Act , the gist of the cause of action being damage, the statement of claim must allege the damage suffered, and that it was suffered by reason of the contravention of the Act . Material facts must be pleaded which show the required causal link between any alleged contravention of the Act , and any damage to the applicant. A deficient pleading, namely one that does not plead relevant material facts, cannot be saved by particulars. It is not sufficient simply to allege loss and damage as a result of alleged contraventions of the Act ; it is necessary to identify a causal connection between the impugned conduct and such loss as is said to have been suffered by the applicants: Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 at 222 ..." 37 No material facts are pleaded in the SASC to establish that the applicant has suffered any loss or damage as a result of any contraventions of the Act by the respondents. Nor are the pleadings in paragraphs 85 and 86 of the SASC adequate for the purpose of establishing that any group member suffered any loss or damage because of any such contraventions. 38 It is not sufficient for an applicant to plead, as does the applicant in the present proceeding, that the represented group members suffered loss and damage because the impugned agreement caused prices for international airfreight services to be "higher than they otherwise would have been" but for the agreement. This is no more than a conclusion without material facts to support it. Whether or not a member of the group suffered loss or damage because of the alleged cartel arrangement will depend upon a range of variables which may nor may not be present depending upon the circumstances of particular transactions. Even if it be assumed that cartel members had agreed to inflate prices for the carriage of air cargo on routes which they serviced it does not follow that they did, in fact, do so on all occasions on which a group member sought services from a respondent. It is certainly less likely that this would have occurred on routes in which carriers who were not members of the alleged cartel were engaged.


case_text: The principles governing the exercise of the Court's power to summarily dismiss a claim on the ground that it discloses no reasonable cause of action, the principles which govern pleadings in this Court and the relevant authorities are conveniently summarised by Weinberg J in McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 ; (1999) 165 ALR 409 at 415-421. It is not necessary to restate, at length, his Honour's exposition of the relevant rules and the statements of principle which emerge from the cases to which he refers. It is sufficient, for present purposes, to note that: • The power to dismiss a claim because it discloses no reasonable cause of action will not lightly be exercised: see Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 128-130; Webster v Lampard [1993] HCA 57 ; (1993) 177 CLR 598 at 602-603. • The purpose of pleadings is to define the issues with sufficient clarity such that respondents understand, and have the opportunity to meet, the case made against them: see Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664; Mitanis v Pioneer Concrete (Vic) Pty Ltd [1997] ATPR 41-591 at 44, 151ff. • A statement of claim must plead all the material facts necessary for the purpose of formulating a complete cause of action. If it does not it is liable to be struck out: Mitanis ; Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712-713. • It is not sufficient for the pleader to state conclusions drawn from unstated facts: see Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109 at 114-5. • There will be cases in which the power to strike out pleadings will not be exercised notwithstanding a failure to plead all material facts. Such restraint will be appropriate where the deficiency causes no confusion and does not raise issues of substantive principle ( HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822 at [59] ), and where deficiencies can be overcome by ordering the provision of particulars or the furnishing of affidavits ( State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] ATPR 41-691 at 42,828-9). • Not all conclusionary pleadings will be struck out as being deficient: see Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association (WA) (1987) 13 FCR 413 at 417. Whether or not such a pleading should be struck out will depend on whether or not the facts are pleaded at too great a level of generality: see Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd [1991] FCA 557.


case_title: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125


case_title: Webster v Lampard [1993] HCA 57 ; (1993) 177 CLR 598


case_title: Mitanis v Pioneer Concrete (Vic) Pty Ltd [1997] ATPR 41-591


case_title: Bruce v Odhams Press Ltd [1936] 1 KB 697


case_text: The principles governing the exercise of the Court's power to summarily dismiss a claim on the ground that it discloses no reasonable cause of action, the principles which govern pleadings in this Court and the relevant authorities are conveniently summarised by Weinberg J in McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 ; (1999) 165 ALR 409 at 415-421. It is not necessary to restate, at length, his Honour's exposition of the relevant rules and the statements of principle which emerge from the cases to which he refers. It is sufficient, for present purposes, to note that: • The power to dismiss a claim because it discloses no reasonable cause of action will not lightly be exercised: see Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 128-130; Webster v Lampard [1993] HCA 57 ; (1993) 177 CLR 598 at 602-603. • The purpose of pleadings is to define the issues with sufficient clarity such that respondents understand, and have the opportunity to meet, the case made against them: see Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664; Mitanis v Pioneer Concrete (Vic) Pty Ltd [1997] ATPR 41-591 at 44, 151ff. • A statement of claim must plead all the material facts necessary for the purpose of formulating a complete cause of action. If it does not it is liable to be struck out: Mitanis ; Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712-713. • It is not sufficient for the pleader to state conclusions drawn from unstated facts: see Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109 at 114-5. • There will be cases in which the power to strike out pleadings will not be exercised notwithstanding a failure to plead all material facts. Such restraint will be appropriate where the deficiency causes no confusion and does not raise issues of substantive principle ( HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822 at [59] ), and where deficiencies can be overcome by ordering the provision of particulars or the furnishing of affidavits ( State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] ATPR 41-691 at 42,828-9). • Not all conclusionary pleadings will be struck out as being deficient: see Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association (WA) (1987) 13 FCR 413 at 417. Whether or not such a pleading should be struck out will depend on whether or not the facts are pleaded at too great a level of generality: see Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd [1991] FCA 557. 22 There is a further problem with paragraph 22(a). It appears to proceed on the basis of a tenuous construction of s 45A of the Act . That construction, which fastens on the words "or by any of them", admits the possibility that all parties to an alleged arrangement can be treated as being subject to the deeming provision in s 45A even if the party concerned is not in competition with the other parties in a particular market. It is sufficient to note, for present purposes, that there is authority for this proposition: see Trade Practices Commission v David Jones (Australia) Pty Ltd (1986) 13 FCR 446 at 473. It is strongly arguable that such a construction does not conform with the ordinary and natural language of s 45A or the statutory purpose which it seeks to serve. These construction issues may need to be resolved at trial. It will not, however, be possible to determine whether or not they arise until the applicant alleges and proves the markets in which each respondent competes with which other respondent. 23 The applicant's failure to identify, in its pleadings, the relevant market or markets has implications for other parts for the SASC. In paragraphs 80 and 81, for example, it alleges that the respondents were in a position to influence the price for international airfreight services because of the volume of international airfreight which they carried into and out of Australia. In paragraph 81 (when read with Schedule 3) the applicant identifies the percentages of inbound and outbound airfreight carried by each of the respondents between Australia and certain overseas countries. Curiously, in paragraphs 80(b) and 81(b) it is pleaded that the respondents "together and in combination" with other participants in the cartel " were able by their pricing behaviour to influence the price of international airfreight services" and, specifically, for routes between Australia and each of the places specified in Schedule 3. Even if the alleged cartel participants "were able" to influence the prices charged for international airfreight services, they would only be liable for damages for a contravention of s 45 of the Act if they did, in fact, by their conduct cause prices to be inflated. More importantly, the absence of a market definition prevents the respondents from knowing whether it is alleged that any attempt to influence prices, in furtherance of the alleged agreement, occurred in any market in Australia. 24 The failure to identify a market or markets creates a special problem for British Airways. It has the benefit of an authorisation under s 88 of the Act in relation to a joint services agreement which it has with Qantas. That agreement permits British Airways to agree with Qantas about the prices for services offered, including cargo services, on routes covered by the agreement. Such an authorisation provides British Airways with a defence against any claim that it has contravened s 45 of the Act . Unless British Airways is able to relate the routes covered by the authorisation to the relevant markets for the purposes of s 45 it will be unable to know whether it can plead a complete or partial defence based on s 88.


case_title: HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822


case_text: The principles governing the exercise of the Court's power to summarily dismiss a claim on the ground that it discloses no reasonable cause of action, the principles which govern pleadings in this Court and the relevant authorities are conveniently summarised by Weinberg J in McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 ; (1999) 165 ALR 409 at 415-421. It is not necessary to restate, at length, his Honour's exposition of the relevant rules and the statements of principle which emerge from the cases to which he refers. It is sufficient, for present purposes, to note that: • The power to dismiss a claim because it discloses no reasonable cause of action will not lightly be exercised: see Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 128-130; Webster v Lampard [1993] HCA 57 ; (1993) 177 CLR 598 at 602-603. • The purpose of pleadings is to define the issues with sufficient clarity such that respondents understand, and have the opportunity to meet, the case made against them: see Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664; Mitanis v Pioneer Concrete (Vic) Pty Ltd [1997] ATPR 41-591 at 44, 151ff. • A statement of claim must plead all the material facts necessary for the purpose of formulating a complete cause of action. If it does not it is liable to be struck out: Mitanis ; Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712-713. • It is not sufficient for the pleader to state conclusions drawn from unstated facts: see Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109 at 114-5. • There will be cases in which the power to strike out pleadings will not be exercised notwithstanding a failure to plead all material facts. Such restraint will be appropriate where the deficiency causes no confusion and does not raise issues of substantive principle ( HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822 at [59] ), and where deficiencies can be overcome by ordering the provision of particulars or the furnishing of affidavits ( State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] ATPR 41-691 at 42,828-9). • Not all conclusionary pleadings will be struck out as being deficient: see Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association (WA) (1987) 13 FCR 413 at 417. Whether or not such a pleading should be struck out will depend on whether or not the facts are pleaded at too great a level of generality: see Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd [1991] FCA 557. 40 The result is, to adopt the words of Drummond J in State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] ATPR 41-691 at 42, 834: "The case presently pleaded by the applicant on the element of loss is not such as to make the connection between the conduct complained of and the loss sought to be recovered "sufficiently apparent" in the sense in which that expression was used by Lord Watson in Dow Hager Lawrance v Lord Norreys (1890) 15 App Cas 210 at 221 ... Further explication by the applicant of this part of the claim is therefore required at the pleading stage." See also Council for the City of the Gold Coast v Pioneer Concrete (Qld) Pty Ltd (1998) 157 ALR 135 at 145-6. 51 I have concluded that the SASC should be struck out. In other circumstances it might have been possible to avoid this outcome. A direction to amend might, for example, have overcome the infelicities concerning the pleading relating to the surcharges. Similarly, a direction of the kind given by Drummond J in State of Queensland v Pioneer Concrete (Qld) Pty Ltd , requiring the applicant to file a statement which set out how it intended to prove the losses which the applicant and group members are said to have suffered may have remedied certain defects. The failure of the applicant to identify a relevant market or markets is, however, in my opinion, such a significant deficiency in the pleading that, even if such corrective steps were taken, the SASC would remain fundamentally flawed. Not only is this deficiency significant in its own right, it has a consequential effect on the efficacy of other parts of the pleading including, particularly, the identification of the group and the alleged causal link between the implementation of the alleged cartel agreement and the loss and damage said to be caused to the applicant and the group members by the respondents' alleged contraventions of s 45 of the Act . 52 This is the first occasion on which there has been an adjudication on the respondents' complaints as to the alleged shortcomings of the applicant's pleaded case. I am, therefore, prepared to grant leave to the applicant to replead if it wishes to do so. 53 Certain other issues were raised by the respondents in the course of argument which, having regard to the conclusion to which I have come, it is not necessary to deal at any length. Two warrant some attention.


case_title: Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association (WA) (1987) 13 FCR 413


case_text: The principles governing the exercise of the Court's power to summarily dismiss a claim on the ground that it discloses no reasonable cause of action, the principles which govern pleadings in this Court and the relevant authorities are conveniently summarised by Weinberg J in McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 ; (1999) 165 ALR 409 at 415-421. It is not necessary to restate, at length, his Honour's exposition of the relevant rules and the statements of principle which emerge from the cases to which he refers. It is sufficient, for present purposes, to note that: • The power to dismiss a claim because it discloses no reasonable cause of action will not lightly be exercised: see Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 128-130; Webster v Lampard [1993] HCA 57 ; (1993) 177 CLR 598 at 602-603. • The purpose of pleadings is to define the issues with sufficient clarity such that respondents understand, and have the opportunity to meet, the case made against them: see Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664; Mitanis v Pioneer Concrete (Vic) Pty Ltd [1997] ATPR 41-591 at 44, 151ff. • A statement of claim must plead all the material facts necessary for the purpose of formulating a complete cause of action. If it does not it is liable to be struck out: Mitanis ; Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712-713. • It is not sufficient for the pleader to state conclusions drawn from unstated facts: see Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109 at 114-5. • There will be cases in which the power to strike out pleadings will not be exercised notwithstanding a failure to plead all material facts. Such restraint will be appropriate where the deficiency causes no confusion and does not raise issues of substantive principle ( HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822 at [59] ), and where deficiencies can be overcome by ordering the provision of particulars or the furnishing of affidavits ( State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] ATPR 41-691 at 42,828-9). • Not all conclusionary pleadings will be struck out as being deficient: see Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association (WA) (1987) 13 FCR 413 at 417. Whether or not such a pleading should be struck out will depend on whether or not the facts are pleaded at too great a level of generality: see Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd [1991] FCA 557. 32 Section 33H of the FCA Act requires that any application commencing a representative proceeding must identify the group members to whom the proceeding relates, specify the nature of the claims made on behalf of the group and specify the questions of law or fact common to the claims of the group members. By s 33C of the Act it is required that seven or more persons have claims against the same respondent, that the claims arise out of the same or similar or related circumstances and that the claims of all group members give rise to a substantial common issue of law or fact. 33 As defined, the group in the present proceeding includes persons who have dealt directly with one or more of the respondents in relation to the provision of international airfreight services. It also includes persons who have had no such direct dealing but who have "paid" more than $20,000 for such services during the relevant period. The pleadings in paragraphs 85 and 86 suggest that, within the defined group, there are two further sub-groups: those members who have both paid for and acquired international airfreight services and those who have merely paid for those services. As will be seen these are not mere semantic objections. They give rise to the potential for confusion and, in turn, to embarrassment and prejudice. 34 Before turning to the substantial difficulties to which the imprecision of the definition of the group gives rise, it is to be observed that there are insufficient material facts pleaded to establish that the applicant is a member of the defined group which it seeks to represent. No attempt is made to establish (other than by conclusionary statement in paragraph 85) that the applicant acquired or paid for any international airfreight services in Australia (or anywhere else) during the relevant period. When read together, ss 33C and 33H of the FCA Act require that an applicant in a representative proceeding must be a person who shares with group members the same identifying criteria. 45 The fuel surcharge is dealt with in paragraphs 29 to 55 of the SASC. In paragraph 54 it is pleaded that "[t]he Respondents and each of them engaged in the conduct alleged in paragraph (sic) 31-51 ..." In paragraph 55 it is alleged that, by doing so, the respondents and each of them gave effect to the global cartel arrangement or the subsidiary fuel surcharge arrangement. In paragraph 87(b) it is alleged that all respondents are jointly and severally liable for all loss and damage caused by the imposition of the fuel surcharge. 46 When, however, one examines paragraphs 31 to 51 one finds that paragraphs 31 to 36 deal exclusively with the conduct of Lufthansa; paragraphs 41-45 deal exclusively with the conduct of British Airways, and paragraphs 46-50 deal exclusively with the conduct of Japan Airlines. In paragraph 37 it is alleged that all respondents, other than Lufthansa, introduced fuel surcharges "at agreed levels" in February 2000. No particulars of this agreement are provided, nor are the "agreed levels" identified. 47 The war-risk surcharge is dealt with in paragraphs 64 to 70 of the SASC. The parties to the arrangement pursuant to which the war-risk surcharge was imposed are identified in each of these paragraphs as being Lufthansa, Singapore Airlines and British Airways. It is not pleaded that Qantas, Cathay Pacific, Air New Zealand or Japan Airlines were party to the arrangement or gave effect to it. 48 Despite this paragraph 87(d) pleads that all respondents are jointly and severally liable for all loss and damage caused by the imposition of the war-risk surcharge arrangement. 49 The applicant seeks to meet the respondents' objections to these parts of the SASC by contending that all respondents are liable for any damages occasioned by the imposition of any surcharge because they were all parties to the "overarching" global cartel arrangement. That overarching arrangement is said, in paragraph 26, to be an agreement to meet and discuss the fixing of prices for the carriage of international airfreight and to conceal any resulting price-fixing arrangements. The surcharges are said to have been agreed upon in the course of meetings and discussions held under the overarching arrangement. This arrangement contemplated that any agreed fixing of prices would emerge from further discussions among the respondents or some of them. In the case of the war-risk surcharge not all respondents are alleged to have agreed to impose the surcharge or to have given effect to such an agreement. Their participation in the making of the global cartel arrangement, without more, cannot render those respondents which were not involved in the making and implementing of the war-risk surcharge agreement jointly and severally liable for damages arising from the imposition of that surcharge. 50 These parts of the SASC are internally inconsistent, confusing and embarrassing.


case_outcome: referred to

case_text: More recent authority has restated and applied these principles: see, for example, Australian Automotive Repairers' Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568 at [14] - [17] ; Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 ; [2005] ATPR 42-053 at 42,669-42,670. In the context of representative proceedings Sackville J has emphasised that applicants are obliged to plead adequately the case alleged by them "on their own behalf and on behalf of all members of the represented class " (emphasis in original): see Philip Morris (Australia) Ltd v Nixon [2000] FCA 229 ; (2000) 170 ALR 487 at 510. His Honour referred with approval to the earlier observation of Beaumont J in Cameron v Qantas Airways Ltd [1993] FCA 328 ; [1993] ATPR 41-251 at 41,370 which he paraphrased as follows: "it is axiomatic that a respondent in a representative proceeding, like the respondent in any proceedings, is entitled to the benefit of a properly pleaded case, so that a proper defence can be filed."


case_title: Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 ; [2005] ATPR 42-053


case_text: More recent authority has restated and applied these principles: see, for example, Australian Automotive Repairers' Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568 at [14] - [17] ; Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 ; [2005] ATPR 42-053 at 42,669-42,670. In the context of representative proceedings Sackville J has emphasised that applicants are obliged to plead adequately the case alleged by them "on their own behalf and on behalf of all members of the represented class " (emphasis in original): see Philip Morris (Australia) Ltd v Nixon [2000] FCA 229 ; (2000) 170 ALR 487 at 510. His Honour referred with approval to the earlier observation of Beaumont J in Cameron v Qantas Airways Ltd [1993] FCA 328 ; [1993] ATPR 41-251 at 41,370 which he paraphrased as follows: "it is axiomatic that a respondent in a representative proceeding, like the respondent in any proceedings, is entitled to the benefit of a properly pleaded case, so that a proper defence can be filed." 61 The second issue, raised by Qantas, relates to the construction of s 33C(1)(a) of the FCA Act . Section 33C(1)(a) conditions the commencement of representative proceedings, inter alia, on there being "7 or more persons [who] have claims against the same person." In Philip Morris (Australia) Ltd v Nixon [2000] FCA 229 ; (2000) 170 ALR 487 Sackville J (with whom Spender and Hill JJ agreed on this point) held (at 514) that " s 33C(1)(a) requires every applicant and represented party to have a claim against the one respondent or, if there is more than one, against all respondents." In Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153 ; (2003) 130 FCR 317 Finkelstein J (at 371-374) expressed the view that s 33C(1)(a) did not impose a requirement that the applicant and the represented parties had to have a claim against all respondents where there were more than one. Carr J held (at 344-346) that, were it necessary for him to decide the point (which it was not), he would decline to follow Philip Morris . Branson J (at 358-9), held that Philip Morris should be followed because it was not clearly wrongly decided. In later cases the Court has applied Philip Morris , taking the view that the observations of Carr and Finkelstein JJ in Bray were obiter: see Johnstone v HIH Limited [2004] FCA 190 at [36] - [39] ; Guglielmin v Trescowthick (No 2) (2005) 220 ALR 515 at 521-522. 62 The applicant sought to meet Qantas's objection by submitting that Philip Morris ought not be followed and that, in any event, the applicant and the represented parties all had claims against all of the respondents for declarations, injunctions and damages. 63 It may be doubted that this response meets Qantas's objection. In both Johnstone and Guglielmin single judges held that they were bound to follow Philip Morris . In Bray Branson J held at (360-361) that the requirements of s 33C(1)(a) had not been satisfied notwithstanding the existence of claims made by the applicant and represented parties for declarations and injunctions against all respondents. Moreover, for reasons already given, the SASC does not plead an unambiguous damages claim against all respondents. It is also to be noted that it has been suggested that the word "claim" in s 33C(1)(a) is not, in any event, intended to refer to the relief sought by an applicant but rather to the material facts and the legal basis of the action: see Bray at 371-2 (per Finkelstein J). 64 In order for representative proceedings to be constituted properly a statement of claim must demonstrate that each of the conditions imposed by s 33C(1) has been satisfied: see Philip Morris at 514. If this is not done then the pleading is liable to be struck out although this is not an inevitable consequence if an amendment can cure the difficulty: see Bray at 361 (per Branson J).


case_title: Cameron v Qantas Airways Ltd [1993] FCA 328 ; [1993] ATPR 41-251


case_text: In Sammy Russo Supplies Pty Ltd v Australian Safeway Stores Pty Ltd [1998] ATPR 41-641 at 41,094 Goldberg J identified the material facts which need to be pleaded in order to establish a cause of action under s 45(2)(a)(ii) of the Act . His Honour said: "When pleading a cause of action under s 45(2)(a)(ii) it is necessary to identify and plead material facts in relation to: (a) the making of a contract or arrangement or the arriving at an understanding; (b) the identification of a provision in that contract, arrangement or understanding; (c) an allegation that the provision has the purpose, or would have, or be likely to have the effect, of substantially lessening competition; (d) an allegation identifying the relevant market in which competition would be lessened and the manner in which competition would be lessened. If s 45A is relied upon it is still necessary to allege that the parties to the contract, arrangement or understanding are in competition with each other. ... It is not sufficient simply to allege that a provision of a contract had the purpose of substantially lessening competition. It is necessary to allege material facts identifying a relevant market. This is made clear by s 45(3) ..." See also: Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 2) (1979) 26 ALR 609 at 646-7; Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] FCA 353 ; [2004] ATPR 41-996 at 48,671. 14 The applicant seeks to distinguish Sammy Russo because the applicant in that case had not sought to place exclusive reliance on s 45A in order to establish the presence of the necessary purposes or effect of the arrangement. It conceded that no 'market' had expressly been identified in the SASC. It contended that it was not necessary for it to do so. It submitted that the pleadings in paragraph 22 are sufficient to establish that at least two of the respondents were in competition in a market and that all of the respondents were offering inbound and outbound international airfreight services on the routes there identified. This, it is said, is sufficient because, in a case such as the present, in which an applicant places exclusive reliance on the deeming effect on s 45A of the Act to characterise the relevant conduct, it will be sufficient for the applicant to prove that any two or more parties to the impugned arrangement are in competition in any market.


case_text: In Sammy Russo Supplies Pty Ltd v Australian Safeway Stores Pty Ltd [1998] ATPR 41-641 at 41,094 Goldberg J identified the material facts which need to be pleaded in order to establish a cause of action under s 45(2)(a)(ii) of the Act . His Honour said: "When pleading a cause of action under s 45(2)(a)(ii) it is necessary to identify and plead material facts in relation to: (a) the making of a contract or arrangement or the arriving at an understanding; (b) the identification of a provision in that contract, arrangement or understanding; (c) an allegation that the provision has the purpose, or would have, or be likely to have the effect, of substantially lessening competition; (d) an allegation identifying the relevant market in which competition would be lessened and the manner in which competition would be lessened. If s 45A is relied upon it is still necessary to allege that the parties to the contract, arrangement or understanding are in competition with each other. ... It is not sufficient simply to allege that a provision of a contract had the purpose of substantially lessening competition. It is necessary to allege material facts identifying a relevant market. This is made clear by s 45(3) ..." See also: Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 2) (1979) 26 ALR 609 at 646-7; Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] FCA 353 ; [2004] ATPR 41-996 at 48,671. 18 Section 4E of the Act contemplates that there are both markets for particular goods or services (product markets) and geographic markets: see Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 2) (1979) 26 ALR 609 at 647.


case_outcome: considered

case_text: In Sammy Russo Supplies Pty Ltd v Australian Safeway Stores Pty Ltd [1998] ATPR 41-641 at 41,094 Goldberg J identified the material facts which need to be pleaded in order to establish a cause of action under s 45(2)(a)(ii) of the Act . His Honour said: "When pleading a cause of action under s 45(2)(a)(ii) it is necessary to identify and plead material facts in relation to: (a) the making of a contract or arrangement or the arriving at an understanding; (b) the identification of a provision in that contract, arrangement or understanding; (c) an allegation that the provision has the purpose, or would have, or be likely to have the effect, of substantially lessening competition; (d) an allegation identifying the relevant market in which competition would be lessened and the manner in which competition would be lessened. If s 45A is relied upon it is still necessary to allege that the parties to the contract, arrangement or understanding are in competition with each other. ... It is not sufficient simply to allege that a provision of a contract had the purpose of substantially lessening competition. It is necessary to allege material facts identifying a relevant market. This is made clear by s 45(3) ..." See also: Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 2) (1979) 26 ALR 609 at 646-7; Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] FCA 353 ; [2004] ATPR 41-996 at 48,671. 17 Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] FCA 353 ; [2004] ATPR 41-996 was also a case in which the applicant sought to rely on the deeming provision in s 45A(1) of the Act . The statement of claim alleged that there was a market "for the provision of demolition and asbestos removal services in the greater metropolitan area of Adelaide ...". It was also alleged that certain of the respondents were in competition with each other in that market. Although the respondents denied the latter allegation they admitted that they were in competition in the market for "demolition services in the greater metropolitan area of Adelaide." The respondents sought further particulars of the allegations contained in these paragraphs. Selway J refused the application. In doing so his Honour said (at 48,671) that: "The ACCC relies upon the deeming provision in TPA s 45A(1). That relates to agreements or understandings reached between parties "in competition with each other". "Competition" is relevantly defined in TPA s 45(3) to mean "competition in any market in which a [relevant] corporation is a party." "Market" is relevantly defined in TPA s 4E. Plainly enough it is material to the case that the ACCC seeks to establish that the relevant parties to the agreement or understanding are in "competition" with each other. It is also a material fact that they are operating in the same market. At the very least it is a necessary particular of that material fact to identify what that market is. The respondents seek from the ACCC further particulars of the relevant market: the source or sources of business or businesses, the nature of the client or clients and details of the business or businesses in competition. In some contexts these particulars might well be necessary. For example, if the allegation related to the effect of an agreement or understanding on the overall operation of the market then it may be necessary for the ACCC to provide quite detailed particulars of that market in order to identify the relevant effect ... However, in this case the relevant anti-competitive purpose or effect is strictly limited in scope. It relates only to the price of a particular contract let by the Department of Defence and particularised in the Statement of Claim. The competitors involved in that tender process are specified by name in the Statement of Claim. So too are those said to be parties to be arrangement or understanding. The price said to be fixed has not been particularised, but it is either the "price" contained in the offer by the fifth respondent ... or the "price" obtained by the Department of Defence. Plainly enough it is not the price of services generally available in the market place. In any event, the broader market is identified and particularised." 20 In my view an applicant, in a proceeding such as the present in which exclusive reliance is placed on s 45A of the Act , must, in its statement of claim, identify the market or markets in which it is said that the anti-competitive conduct has taken place. The pleadings must identify (at least) the relevant goods or services and the geographic boundaries of the market. The pleading need not descend to the degree of particularity to which Heerey J objected in McPhee or the detail which Selway J found to be unnecessary in McMahon Services . In both of those cases it was held that the identification of a market was a material fact or particular which had to be pleaded. This had been done in an acceptable way in McMahon Services . It is true that the necessary competition between those who have entered into arrangements can take place in any market. This does not mean that applicants are absolved from the need to identify the parameters of that market by reference to the relevant goods and services and the geographic area within which competition in relation to the supply of those goods and services is said to take place. In McPhee Heerey J deprecated the ACCC's attempt to define the market in minute detail. He did not, however, hold that no attempt to define the market was necessary. Indeed his reasoning proceeded on the assumption that a geographic and product market had been pleaded. As McMahon Services demonstrates this can be done succinctly and without unnecessary prolixity.


case_text: The applicant relies on certain observations, made by Heerey J, in Australian Competition and Consumer Commission v J McPhee & Son (Australia) Pty Ltd [1997] ATPR 41-570. In that case objection had been taken to the manner in which the relevant market had been pleaded by the Australian Competition and Consumer Commission ("the ACCC"). The pleading identified the major suppliers of services, described how the market operated and provided details of the barriers to entry to the market and its geographic limits. Although the pleading was objected to on the ground that it was "conclusionary", it was struck out, by his Honour, on the ground that it was prolix, unnecessary and irrelevant. Having referred to ss 45(2) , 45 (3) and 45A (1) of the Act his Honour continued (at 43,920): "Thus competition relevantly means competition in any market in which the parties to the actual or proposed contract, arrangement or understanding are engaged. As long as the ACCC can establish that, in connection with the alleged arrangements or understandings, McPhee and DFE were competing in a market, it is not to the point that others may have been supplying the same services in that market, or that services other than express freight transportation services might have been provided, or that the geographical extent of the market might have been different from that pleaded. To illustrate the point, one might ask rhetorically what would it matter for the purposes of the present case if, after elaborate discovery and issue of many subpoenas, expensive expert evidence, and a trial lasting several weeks, if not months, it were proved that AirRoad and COPE were not participants in the alleged market, that some other firms not named in para 10 were participants, or that the alleged market did not cover the whole of Australia but only Victoria, South Australian and New South Wales?" (Emphasis in original). 16 Later (at 43,921), his Honour concluded that: "In the present case, if it were established that McPhee and DFE were offering, or contemplating the offer of, the same services (express freight transportation services), to the same existing or potential customer ..., it would be open to a Court to conclude that McPhee and DFE were in competition with (at least) each other in a market for the supply (at least) of such services." 20 In my view an applicant, in a proceeding such as the present in which exclusive reliance is placed on s 45A of the Act , must, in its statement of claim, identify the market or markets in which it is said that the anti-competitive conduct has taken place. The pleadings must identify (at least) the relevant goods or services and the geographic boundaries of the market. The pleading need not descend to the degree of particularity to which Heerey J objected in McPhee or the detail which Selway J found to be unnecessary in McMahon Services . In both of those cases it was held that the identification of a market was a material fact or particular which had to be pleaded. This had been done in an acceptable way in McMahon Services . It is true that the necessary competition between those who have entered into arrangements can take place in any market. This does not mean that applicants are absolved from the need to identify the parameters of that market by reference to the relevant goods and services and the geographic area within which competition in relation to the supply of those goods and services is said to take place. In McPhee Heerey J deprecated the ACCC's attempt to define the market in minute detail. He did not, however, hold that no attempt to define the market was necessary. Indeed his reasoning proceeded on the assumption that a geographic and product market had been pleaded. As McMahon Services demonstrates this can be done succinctly and without unnecessary prolixity.


case_title: Re Queensland Co-operative Milling Association Limited (1976) 25 FLR 169

case_text: The requirement that the geographic area of a market be identified arises from the terms of s 4E. The market must be "in Australia". In economic terms "a market is the field of actual and potential transactions between buyers and sellers amongst whom there can be strong substitution, at least in the long run, if given a sufficient price incentive": see Re Queensland Co-operative Milling Association Ltd (1976) 25 FLR 169 at 190. In the same case a market was also referred to as an "area of close competition between firms": ibid; see also Queensland Wire Industries Pty Ltd v The Broken Hill Proprietary Company Ltd [1989] HCA 6 ; (1989) 167 CLR 177 at 195 (per Deane J); at 199-200 (per Dawson J). Buyers and sellers of goods and services must negotiate and enter transactions in an area in which suppliers are engaged in close competition with each other. That area must be located within Australia. It cannot be assumed that, simply because the relevant services involved moving goods into and out of Australia, the market was located in Australia.


case_title: Queensland Wire Industries Pty Ltd v The Broken Hill Proprietary Company Ltd [1989] HCA 6 ; (1989) 167 CLR 177


case_text: One of the remedies sought in the application is damages pursuant to s 82 of the Act . Section 82 provides that an applicant may recover the amount of any loss or damage which it suffers as a result of ("by") a respondent's contravention of provisions of the Act (including s 45): see Marks v GIO Australia Holdings Ltd [1998] HCA 69 ; (1998) 196 CLR 494. Loss and damage is pleaded in paragraphs 85-87 of the SASC. There is, therefore, a common "claim" for damages, made by the applicant on behalf of all group members for the purposes of ss 33C and 33H of the FCA Act .


case_text: The result is, to adopt the words of Drummond J in State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] ATPR 41-691 at 42, 834: "The case presently pleaded by the applicant on the element of loss is not such as to make the connection between the conduct complained of and the loss sought to be recovered "sufficiently apparent" in the sense in which that expression was used by Lord Watson in Dow Hager Lawrance v Lord Norreys (1890) 15 App Cas 210 at 221 ... Further explication by the applicant of this part of the claim is therefore required at the pleading stage." See also Council for the City of the Gold Coast v Pioneer Concrete (Qld) Pty Ltd (1998) 157 ALR 135 at 145-6.


case_text: United States anti-trust jurisprudence denies a passing on defence to respondents who have dealt directly with applicants. On the other hand, it has been held that indirect purchasers of goods and services have no standing to sue for damages for anti-trust breaches under federal anti-trust law save for some immaterial exceptions: see Hanover Shoe, Inc. v United Machinery Corp [1968] USSC 185 ; 392 US 481 (1968); Illinois Brick Company v Illinois [1977] USSC 168 ; 431 US 720 (1977). The passing on defence is not available to those who have dealt directly with an applicant for a variety of reasons. They include the difficulty in analysing price and output decisions in the "real economic world" and the evidentiary complexities and uncertainties involved in analysing the impact of an overcharge on a firm's profits. The refusal to grant standing to indirect purchasers is justified on the ground that a respondent should not be exposed to multiple liability and double recovery in respect of the same conduct.


case_title: Illinois Brick Company v Illinois [1977] USSC 168 ; 431 US 720 (1977)


case_text: It remains to be seen whether a similar approach will be adopted by Australian courts. In Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd [1994] HCA 61 ; (1994) 182 CLR 51 the High Court held that a "passing on" defence was not available to a defendant to a restitutionary claim where the plaintiff had passed on the burden of excessive workers' compensation premiums. It may be doubted that this decision will have any impact on the liability of the present respondents for damages under s 82 of the Act . This is because restitutionary relief is not designed to provide compensation for loss. Rather it is designed to restore to the plaintiff that which has been transferred to the defendant thereby unjustly enriching the defendant: see The Defence of Passing On , Michael Rush, Oxford, (2006) at 43-7. In any event the applicant accepts that no restitutionary claim is made by it. It is neither necessary nor desirable that I express a concluded view on the issue. If the proceeding continues to trial the issue will, no doubt, be the subject of detailed submissions. It is sufficient, for present purposes, to rule that the respondents are entitled to know the material facts which will, if they are so advised, enable them to defend the proceeding by pleading that the applicant and other group members have not sustained any loss or damage as a result of the respondents' alleged conduct. In order to do this they need to know, at minimum, whether it is alleged that the applicant and the other group members dealt directly or indirectly with one or more of the respondents, whether they were required by a respondent to pay a surcharge for the provision of relevant services and, if they were, whether or not they passed on those charges to a client or customer. Given the width of the group definition and the ambiguities in it which were earlier identified, it is impossible for the respondents, on the present state of the pleadings, adequately to plead a defence based on passing on. The problem is complicated by the fact that, at least in its written submissions, the applicant contemplates that some or all of the group members might have passed on some but not all of any surcharges levied as a result of the alleged cartel conduct of the respondents. 44 The applicant alleges that the respondents gave effect to the agreement to fix and maintain charges, and to conceal their agreement, by imposing certain surcharges. One of these was a fuel surcharge. Another was a war-risk surcharge.


case_text: In Yamaji v Westpac Banking Corporation (No 2) [1993] FCA 273 ; (1993) 42 FCR 436 at 440 Drummond J held that " s 5(3) should be read as requiring Ministerial consent to be obtained prior to any hearing, final or interlocutory, in an action in which an applicant claiming under s 82 wishes to rely upon extra Australian conduct." The weight of authority, however, favours the view that Ministerial consent is not required prior to the commencement of a proceeding; it is only required before relief in the nature of damages is granted by the Court: see Tycoon Holdings Pty Ltd v Trencor Jetco Inc [1995] FCA 1185 ; [1995] ATPR 41-413 at 40,581; Natureland Parks Pty Ltd v My-Life Corporation Pty Ltd (1996) 67 FCR 237 at 240-241; Stern v National Australia Bank [1999] FCA 1421 at [152] . 58 The language employed by the draftsman in s 5(4) of the Act is very different. If an applicant wishes to rely upon conduct which has occurred outside Australia, in order to obtain relief under s 87 , then it must obtain Ministerial approval before instituting a proceeding: see Yamaji at 440 and Natureland Parks at 240. The applicant seeks to avoid the precondition imposed by s 5(4) by amending its application so as only to seek orders under s 87 of the Act in respect of the conduct of the respondents in Australia. The original application did not contain such a limitation.


case_text: In Yamaji v Westpac Banking Corporation (No 2) [1993] FCA 273 ; (1993) 42 FCR 436 at 440 Drummond J held that " s 5(3) should be read as requiring Ministerial consent to be obtained prior to any hearing, final or interlocutory, in an action in which an applicant claiming under s 82 wishes to rely upon extra Australian conduct." The weight of authority, however, favours the view that Ministerial consent is not required prior to the commencement of a proceeding; it is only required before relief in the nature of damages is granted by the Court: see Tycoon Holdings Pty Ltd v Trencor Jetco Inc [1995] FCA 1185 ; [1995] ATPR 41-413 at 40,581; Natureland Parks Pty Ltd v My-Life Corporation Pty Ltd (1996) 67 FCR 237 at 240-241; Stern v National Australia Bank [1999] FCA 1421 at [152] .


case_title: Natureland Parks Pty Ltd v My-Life Corporation Pty Ltd (1996) 67 FCR 237


case_title: Stern v National Australia Bank [1999] FCA 1421


case_text: The second issue, raised by Qantas, relates to the construction of s 33C(1)(a) of the FCA Act . Section 33C(1)(a) conditions the commencement of representative proceedings, inter alia, on there being "7 or more persons [who] have claims against the same person." In Philip Morris (Australia) Ltd v Nixon [2000] FCA 229 ; (2000) 170 ALR 487 Sackville J (with whom Spender and Hill JJ agreed on this point) held (at 514) that " s 33C(1)(a) requires every applicant and represented party to have a claim against the one respondent or, if there is more than one, against all respondents." In Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153 ; (2003) 130 FCR 317 Finkelstein J (at 371-374) expressed the view that s 33C(1)(a) did not impose a requirement that the applicant and the represented parties had to have a claim against all respondents where there were more than one. Carr J held (at 344-346) that, were it necessary for him to decide the point (which it was not), he would decline to follow Philip Morris . Branson J (at 358-9), held that Philip Morris should be followed because it was not clearly wrongly decided. In later cases the Court has applied Philip Morris , taking the view that the observations of Carr and Finkelstein JJ in Bray were obiter: see Johnstone v HIH Limited [2004] FCA 190 at [36] - [39] ; Guglielmin v Trescowthick (No 2) (2005) 220 ALR 515 at 521-522. 63 It may be doubted that this response meets Qantas's objection. In both Johnstone and Guglielmin single judges held that they were bound to follow Philip Morris . In Bray Branson J held at (360-361) that the requirements of s 33C(1)(a) had not been satisfied notwithstanding the existence of claims made by the applicant and represented parties for declarations and injunctions against all respondents. Moreover, for reasons already given, the SASC does not plead an unambiguous damages claim against all respondents. It is also to be noted that it has been suggested that the word "claim" in s 33C(1)(a) is not, in any event, intended to refer to the relief sought by an applicant but rather to the material facts and the legal basis of the action: see Bray at 371-2 (per Finkelstein J). 64 In order for representative proceedings to be constituted properly a statement of claim must demonstrate that each of the conditions imposed by s 33C(1) has been satisfied: see Philip Morris at 514. If this is not done then the pleading is liable to be struck out although this is not an inevitable consequence if an amendment can cure the difficulty: see Bray at 361 (per Branson J).


case_title: Johnstone v HIH Limited [2004] FCA 190

case_text: The second issue, raised by Qantas, relates to the construction of s 33C(1)(a) of the FCA Act . Section 33C(1)(a) conditions the commencement of representative proceedings, inter alia, on there being "7 or more persons [who] have claims against the same person." In Philip Morris (Australia) Ltd v Nixon [2000] FCA 229 ; (2000) 170 ALR 487 Sackville J (with whom Spender and Hill JJ agreed on this point) held (at 514) that " s 33C(1)(a) requires every applicant and represented party to have a claim against the one respondent or, if there is more than one, against all respondents." In Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153 ; (2003) 130 FCR 317 Finkelstein J (at 371-374) expressed the view that s 33C(1)(a) did not impose a requirement that the applicant and the represented parties had to have a claim against all respondents where there were more than one. Carr J held (at 344-346) that, were it necessary for him to decide the point (which it was not), he would decline to follow Philip Morris . Branson J (at 358-9), held that Philip Morris should be followed because it was not clearly wrongly decided. In later cases the Court has applied Philip Morris , taking the view that the observations of Carr and Finkelstein JJ in Bray were obiter: see Johnstone v HIH Limited [2004] FCA 190 at [36] - [39] ; Guglielmin v Trescowthick (No 2) (2005) 220 ALR 515 at 521-522. 63 It may be doubted that this response meets Qantas's objection. In both Johnstone and Guglielmin single judges held that they were bound to follow Philip Morris . In Bray Branson J held at (360-361) that the requirements of s 33C(1)(a) had not been satisfied notwithstanding the existence of claims made by the applicant and represented parties for declarations and injunctions against all respondents. Moreover, for reasons already given, the SASC does not plead an unambiguous damages claim against all respondents. It is also to be noted that it has been suggested that the word "claim" in s 33C(1)(a) is not, in any event, intended to refer to the relief sought by an applicant but rather to the material facts and the legal basis of the action: see Bray at 371-2 (per Finkelstein J).


case_title: Guglielmin v Trescowthick (No 2) (2005) 220 ALR 515


case_text: The next use of the words GO WACKO relied upon as use as a trade mark, is in the expression DOGS GO WACKO FOR SCHMACKOS which appears on the front of Effem's packaging. It is possible for a word or words forming only part of a composite expression to be used as a trade mark. Examples are found in Kolotex Glo Australia Pty Ltd v Sara Lee Personal Products (Australia) Pty Ltd (1993) 26 IPR 1 (" Kolotex ") and Wellness Pty Ltd v Pro Bio Living Waters Pty Ltd (2004) 61 IPR 242. There are also cases in which a word (which is a registered trade mark) appears in an expression used by an alleged infringer where it has been held that such use does not constitute infringement. Pepsico was such a case. Before discussing the two authorities where words within an expression were used as trade marks, it is desirable to refer to the judgment of the High Court in Mark Foy's Ltd v Davies Coop and Company Ltd [1956] HCA 41 ; (1956) 95 CLR 190. 16 In Kolotex, the applicant was the owner of the registered trade mark SHEER RELIEF, although the registration was subject to a disclaimer of any right to the separate exclusive use to the words "sheer" and "relief". For over 20 years, the applicant had successfully marketed lines of pantyhose and stockings styled "Sheer Relief". Wilcox J considered whether the words "Sheer Relief", which were used by the respondent in the phrases "Sheer Relief for Active Legs" and "Sheer Relief For Active Legs That Doesn't Show" on the packaging of its products, were used as a trade mark. His Honour found that the respondent had decided to market a line of pantyhose and stockings to directly compete with the "Sheer Relief" line. In an infringement action, the respondent raised the defences that the use of the expression "Sheer Relief" was descriptive of the character or quality of the product and also was not use as a trade mark. 17 Wilcox J rejected both defences. The respondent's contention that "Sheer Relief" was not used as a trade mark was rejected partly on the basis of the significance of those words in the expression which appeared on the packaging. Early in his reasons, he accepted a submission of the applicant (not disputed by the respondent) that the registered mark was a pun or clever play on words. The word "sheer" described the physical nature of the fabric, yet also related to the extent of relief offered. It was absolute or unqualified. The word "relief" conveyed a freedom from tiredness or fatigue. Each word of the combination could have worked separately but also as a qualification for the other word which enhanced the meaning of both. The combination did not have an exclusive meaning but displayed an attractive plurality of meanings. 18 Later in his reasons, Wilcox J noted that the expression "Sheer Relief for Active Legs" was used on the respondent's packaging for pantyhose three times and in such a manner as to indicate that the words "Sheer Relief" were connected in some way with the applicant's goods. Wilcox J noted that the expression "Sheer Relief for Active Legs" was used twice on the packaging as a subheading appearing immediately following product titles used by the respondent. Wilcox J then said (at [25] and [26]): ... The phrase "Sheer Relief for Active Legs" acts as a third title or caption. It does so by using two catchy and memorable words, which contain a clever double meaning and are already well-known in the trade. Having regard to the evidence that the respondent set out to copy the applicant's product exactly, there can be little doubt that its intention was to appropriate, if it could, the reputation attaching to that subtitle. It appears to have achieved some success in that endeavour. There is evidence of two incidents, in different stores, where customers picked the respondent's product from the display shelves in the belief that it was that of the applicant. The use of the additional words "for active legs" is important in considering whether the words "Sheer Relief" are used by the respondent for product identification; but, once it is concluded that they are so used, the existence of the other words cannot derogate from the conclusion that there is an infringement. (Emphasis added)


case_text: The next use of the words GO WACKO relied upon as use as a trade mark, is in the expression DOGS GO WACKO FOR SCHMACKOS which appears on the front of Effem's packaging. It is possible for a word or words forming only part of a composite expression to be used as a trade mark. Examples are found in Kolotex Glo Australia Pty Ltd v Sara Lee Personal Products (Australia) Pty Ltd (1993) 26 IPR 1 (" Kolotex ") and Wellness Pty Ltd v Pro Bio Living Waters Pty Ltd (2004) 61 IPR 242. There are also cases in which a word (which is a registered trade mark) appears in an expression used by an alleged infringer where it has been held that such use does not constitute infringement. Pepsico was such a case. Before discussing the two authorities where words within an expression were used as trade marks, it is desirable to refer to the judgment of the High Court in Mark Foy's Ltd v Davies Coop and Company Ltd [1956] HCA 41 ; (1956) 95 CLR 190.


case_text: The starting point in determining whether the words GO WACKO are a trade mark is the definition of "trade mark" in s 17 of the Act. That section defines "trade mark" as a sign used to distinguish goods or services dealt with or provided in the course of trade by a person from the goods or services of another. Whether a "sign" (which is defined broadly in s 6) is used in this way is to be assessed objectively, having regard to the context in which the sign is used. Many of the relevant authorities were discussed by Sackville J in Pepsico Australia Pty Ltd & Anor (t/as Frito-Lay Australia) v Kettle Chip Co Pty Ltd (1996) 135 ALR 192 (" Pepsico ") at 209-214. 8 WACKO is defined in the Macquarie Dictionary (third edition) as a noun: "a person who is insane in some way; an eccentric", and as an adjective: "crazy; weird; eccentric". An alternative spelling is also given, namely WHACKO. The latter spelling has an additional meaning as an interjection constituting "an expression denoting pleasure, delight etc". Potentially, therefore, the word (spelt WACKO or WHACKO) has a double meaning. 9 I am not satisfied that use of the words GO WACKO on the back of the packaging amounts to use as a trade mark. In the images of the packaging in evidence (which appear to be colour photocopies) the packaging is predominantly red. The words GO WACKO are white and the background colour of the voice balloon is blue. The text containing the instructions appears to be black, against a bright yellow background. The words GO WACKO are quite prominent on the packaging. 12 The next use of the words GO WACKO relied upon as use as a trade mark, is in the expression DOGS GO WACKO FOR SCHMACKOS which appears on the front of Effem's packaging. It is possible for a word or words forming only part of a composite expression to be used as a trade mark. Examples are found in Kolotex Glo Australia Pty Ltd v Sara Lee Personal Products (Australia) Pty Ltd (1993) 26 IPR 1 (" Kolotex ") and Wellness Pty Ltd v Pro Bio Living Waters Pty Ltd (2004) 61 IPR 242. There are also cases in which a word (which is a registered trade mark) appears in an expression used by an alleged infringer where it has been held that such use does not constitute infringement. Pepsico was such a case. Before discussing the two authorities where words within an expression were used as trade marks, it is desirable to refer to the judgment of the High Court in Mark Foy's Ltd v Davies Coop and Company Ltd [1956] HCA 41 ; (1956) 95 CLR 190.