case_title: GHD Pty Ltd v Wayne [2001] QSC 73

case_text: The closest the first respondent came to finding an analogous notice, the validity of which was upheld, was GHD Pty Ltd v Wayne [2001] QSC 73 (" GHD "). In that case the lease was similar in substance to clause 3.2.2 and required the relevant amount to be specified by notice in writing. The relevant notice stated: "As you will be aware your lease provides for a review of rental from 29 September 1999. The Lessor proposes that there will be no change in the rental from the present level for the year commencing 29 September 1999." 148 The notice then went on to deal with a proposal to renegotiate the terms of the lease to take account of the introduction of the goods and services tax legislation. The lessee submitted that the use of the term "proposes" rather than "specifies", and the discussion of the GST proposal, rendered the notice equivocal, and therefore invalid. The lessee also contended that the failure to specify an actual amount or refer to fair market rental suggested the notice represented a step in a preliminary negotiation before the rent review machinery was triggered. 149 Mackenzie J rejected these submissions. His Honour noted that the matter was one of impression and that, in his view, the notice adequately conveyed the requisite meaning that the lease required to be conveyed. 150 GHD is distinguishable from the present case. In GHD , Mackenzie J took the view that the GST discussion could be severed, or treated separately, from the rent review portion of the letter, and that the rent review portion of the letter was sufficiently clear. If, in the notice at issue before me, the first respondent had simply referred to the lease and stated, as the lessor did in GHD , "the Lessor proposes that the rental commencing 1 March 2003 be $435,920 pa", and there was no ambiguous reference to the Colliers letter, the notice may well have been valid. However, the Colliers letter cannot be severed from this notice, and the reference to it in Mr Allen's letter, and the nature of the Colliers letter itself, import doubt into the meaning of the overall notice. 151 Accordingly, I find that the notice was not sufficiently clear to be a valid notice pursuant to clause 3.2.2 of the lease.


case_outcome: cited

case_text: Since Mannai , that test has been repeatedly applied in English courts. See, for example, the recent decision of the Court of Appeal in Lancecrest Limited v Asiwaju [2005] EWCA Civ 117 (" Lancecrest "). The test has been applied in this Court in Australasian Performing Right Association Ltd v Metro on George Pty Ltd (2004) 210 ALR 244 per Bennett J (in the context of a notice of termination). It has also been applied by the Victorian Court of Appeal in MLW Technology Pty Ltd v May [2005] VSCA 29 (in the context of a notice seeking enforcement of a term of a contract), by the New South Wales Court of Appeal in Etlis v New Age Constructions (NSW) Pty Ltd [2005] NSWCA 165 (in the context of a notice triggering an extension of time in relation to building work), and in the Supreme Court of New South Wales in McIntyre v Marshall [2004] NSWSC 412 (a vendor's notice to complete), Gibbins Thomson Pty Ltd v Council of the City of Liverpool [2004] NSWSC 1172 (a notice of failure to meet obligations under the contract), and Heaps v Addison Wesley Longman [1999] NSWSC 1093 (a notice from a tenant requesting the appointment of a second valuer in relation to a rent review).


case_outcome: discussed

case_text: In GR Mailman & Associates Pty Ltd v Wormald (Aust) Pty Ltd (1991) 24 NSWLR 80 (" Mailman "), the rent review clause, art 2.02(a), was in the following terms: "Within sixty days (60) prior to the expiration of each period specified ... the Lessor may give in writing, in the form set out hereunder, to the Lessee increasing the yearly rental to an amount which the Lessor considers will be the current market rent of the Demised Premises as at the Review Date and until the following Review Date or the expiration of the term as the case may be ... having regard to all matters then relevant to the determination of such rent including the terms and conditions of this Lease and in particular the fact that the Lessee is obliged to pay to the Lessor the Outgoings provided in Article 3 thereof." 86 In that case, Gleeson CJ stated, at 89: "The lease also (in art 2.02(d)) states the consequences of the failure of the lessee to serve a counter-notice within the specified time. The lessee is deemed to have agreed upon the current market rent for the next review period. ... Moreover, the rent that is deemed to be the current market rent may be quite different from the actual market rent, at least so long as the lessor subjectively holds the belief referred to in art 2.02(a) ." (emphasis added) 156 In my view, clause 3.2.2 did not require the lessor to stipulate a "reasonable" or "non-excessive" sum. I reject the applicant's contention that the rent review clause in Mailman was not comparable to that at issue in this proceeding. Mailman required the lessor to give notice of what it considered was the "current market rent", having regard to certain matters. Clause 3.2.2 requires a statement of "the sum which the Lessor assesses to be the proper rent", taking into account certain assumptions and having regard to certain matters. Consistent with Gleeson CJ's statement in Mailman , as long as Mr Allen subjectively held the belief that this sum was the "proper rent", the requirements of clause 3.2.2 would have been satisfied. I am not prepared, on the basis of the evidence before me, to infer that Mr Allen did not hold such a belief. 157 The applicant's case in relation to breach of an implied term of good faith proceeded upon the assumption that the notice was found to be valid, and that therefore, clause 3.2.2 gave the first respondent the type of wide powers that would invoke the implication of the term. As I have found that the notice was invalid, the issue does not strictly arise. I do not propose therefore to say anything further about this aspect of the proceeding. 158 Much the same could be said about the applicant's claim under s 51AA of the Trade Practices Act . However, I do wish to make some brief comments about one element of that claim. Section 51AA requires one party in a transaction to be under some sort of special disadvantage which the other party unconscientiously takes advantage of. As previously indicated, the special disadvantage in this case was said to be the fact that Mr Bertrand spoke English as a second language. 159 Mr Bertrand was cross-examined in English and was able to communicate clearly and effectively during that process. He was taken to various documents and had no trouble understanding them. At the time of the events relevant to this application, Mr Bertrand was the General Manager of a sizeable commercial operation in Australia. Consequently, the applicant would have fallen well short of establishing that Mr Bertrand had a special disadvantage capable of invoking the operation of s 51AA. 160 As I have found the notice to be invalid, the claim against the second respondent for misleading or deceptive conduct under s 52 of the Trade Practices Act is moot. As the notice is invalid, the applicant cannot be said to have suffered loss or damage by virtue of the representations in the Colliers letter. Accordingly, the application against the second respondent is dismissed.


case_text: The authorities are clear that the applicant does not itself have to rely upon the misrepresentation in order to make a claim under s 82. It may be sufficient for a third party to rely upon the misrepresentation, and for that third party reliance to cause the applicant's loss. See Janssen-Cilag Pty Limited v Pfizer Pty Limited (1992) 37 FCR 526 (" Janssen-Cilag "), Haynes v Top Slice Deli Pty Limited (1995) ATPR (Digest) |P46-147 (" Haynes "), and McCarthy v McIntyre [1999] FCA 784. However, the authorities require a "sufficient and direct link", or a "requisite element of proximity" in order for s 82 to be satisfied. 166 In Haynes , the applicants purchased a franchise from Top Slice Deli. Top Slice Deli's accountants had sent misleading financial information to the bank which approved the applicants' loan to purchase the franchise. As against the accountants, Einfeld J found at 53,152: "Even if the bank's approval of the loan was an antecedent condition of entry into the agreements ...there was not an effective or true nexus between the approval and the entry. To adopt the language of Justice Lockhart, any resulting loss from the failure of the business is both a remote and indirect, not the "natural and direct", result of the relevant conduct. It therefore falls outside section 82..."


case_title: Heaps v Addison Wesley Longman [1999] NSWSC 1093


case_outcome: referred to

case_text: In my view, the applicant's failure to object to the notice, if it were found to be valid, would constitute a break in the chain of causation. Put another way, at its highest, what the second respondent would have "caused" was a rental assessment notice to be sent which specified an annual rental which did not reflect the "proper rent" as defined in clause 3.2.2. While negligence on the part of a "victim" of a contravention is not a defence to a claim for damages under s 82, this does not apply where the victim's conduct operates so as to destroy the causal connection between the contravention and the loss or damage: Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459 at 468 per Gleeson CJ. 172 Accordingly, had the notice been valid, and had the other claims against the first respondent failed, I would not have found the second respondent liable to pay damages under s 82 even if it had, by preparing the letter, contravened s 52, because the second respondent, by its conduct, would not have caused the applicant's loss. 173 It is clear from what I have already stated that the applicant is entitled to a declaration that the notice upon which the first respondent relied for increasing the rent was not a valid notice pursuant to clause 3.2.2. It follows that the notice was of no effect.


case_text: The authorities are clear that the applicant does not itself have to rely upon the misrepresentation in order to make a claim under s 82. It may be sufficient for a third party to rely upon the misrepresentation, and for that third party reliance to cause the applicant's loss. See Janssen-Cilag Pty Limited v Pfizer Pty Limited (1992) 37 FCR 526 (" Janssen-Cilag "), Haynes v Top Slice Deli Pty Limited (1995) ATPR (Digest) |P46-147 (" Haynes "), and McCarthy v McIntyre [1999] FCA 784. However, the authorities require a "sufficient and direct link", or a "requisite element of proximity" in order for s 82 to be satisfied.


case_text: Since Mannai , that test has been repeatedly applied in English courts. See, for example, the recent decision of the Court of Appeal in Lancecrest Limited v Asiwaju [2005] EWCA Civ 117 (" Lancecrest "). The test has been applied in this Court in Australasian Performing Right Association Ltd v Metro on George Pty Ltd (2004) 210 ALR 244 per Bennett J (in the context of a notice of termination). It has also been applied by the Victorian Court of Appeal in MLW Technology Pty Ltd v May [2005] VSCA 29 (in the context of a notice seeking enforcement of a term of a contract), by the New South Wales Court of Appeal in Etlis v New Age Constructions (NSW) Pty Ltd [2005] NSWCA 165 (in the context of a notice triggering an extension of time in relation to building work), and in the Supreme Court of New South Wales in McIntyre v Marshall [2004] NSWSC 412 (a vendor's notice to complete), Gibbins Thomson Pty Ltd v Council of the City of Liverpool [2004] NSWSC 1172 (a notice of failure to meet obligations under the contract), and Heaps v Addison Wesley Longman [1999] NSWSC 1093 (a notice from a tenant requesting the appointment of a second valuer in relation to a rent review). 142 In any event, the correct test to apply is not whether there is enough in a notice to put a reasonable tenant on inquiry to find out if a notice was indeed intended by the lessor to be a notice under 3.2.2. Nor is the subjective reaction of the recipient of the notice relevant: see Mannai at 767 per Lord Steyn and Lancecrest at [38]-[43] per Neuberger LJ and [88] per Brooke LJ. Either the notice is unequivocally a notice made pursuant to clause 3.2.2, or it is not. If the meaning of the notice is in doubt, objectively viewed, the notice is invalid.


case_text: In response, the applicant submitted that from the time during the trial that Mr Allen gave evidence he was not required to ignore fixtures and fittings other than those identified in schedule 2, it was clear that the applicant contended that this was a basis for invalidity of the notice. It relied upon the statement of the Stephen, Mason and Jacobs JJ in Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437, at 446, where their Honours said: "If in the cause of action upon which the plaintiff sued there had emerged at the conclusion of the evidence facts which, if accepted, established that cause of action, then it was the duty of the trial judge to leave the issue of negligence to the jury. The pleadings should have been amended in order to make the facts alleged and the particulars of negligence precisely conform to the evidence which had emerged. ... Now, and for many years past, a plaintiff does not fail by being refused leave to amend or through failure formally to apply for amendment, where the evidence has disclosed a case in the cause of action fit to be determined by the tribunal of fact. Particularly is this so when the action finally determines the rights of the parties in the cause of action." 120 In my view, it is clear that the applicant's case that the notice is invalid because it included all the fixtures and fittings in the rental assessment, was not adequately pleaded. In the paragraphs of the pleading extracted above which claim the notice is invalid, there is no reference to fixtures and fittings or to schedule 2. Moreover, these paragraphs expressly focus upon another criterion upon which the proper rent is to be assessed, namely regard being had to comparable premises in the municipality. As such, fixtures and fittings are expressly excluded from the question of whether the rent was invalidly assessed. Accordingly, the applicant requires leave to amend its statement of claim to plead this aspect of its case. 121 Whether I should grant such leave after the conclusion of evidence is a thorny issue. The respondents have both claimed that to do so will prejudice their case. They say, with some force, that they would have presented their case differently, including possibly leading new evidence, had the pleading been amended earlier. However, the reasons the applicant gives for not pleading this claim earlier are persuasive as well. There is weight in the applicant's submission that these were matters within the knowledge of the first respondent, and that they only arose in the course of Mr Allen's cross-examination. As such, the applicant was in no position to either plead, or open, in relation to this matter.


case_text: The second respondent gave numerous examples of cases where it said leave to amend in similar circumstances had been refused. See Lewis v Sydney Flour Pty Ltd (1956) 56 SR (NSW) 189, Burnham v City of Mordialloc [1956] VLR 239, Ralph v Strutton [1969] Qd R 348 and Mercantile Mutual Insurance (Australia) Ltd v Farrington (1996) 44 NSWLR 634.


case_outcome: applied

case_text: The first respondent submitted that the notice must be construed objectively and in context: Carradine Properties Ltd v Aslam [1976] 1 WLR 442 and Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19 ; [1997] AC 749 at 767 (" Mannai "). The first respondent also submitted that a reasonable recipient is to be credited with knowledge of the terms of the lease: Mannai . See also MLW Technology Pty Ltd v May [2004] VSCA 29. 130 Since Mannai , that test has been repeatedly applied in English courts. See, for example, the recent decision of the Court of Appeal in Lancecrest Limited v Asiwaju [2005] EWCA Civ 117 (" Lancecrest "). The test has been applied in this Court in Australasian Performing Right Association Ltd v Metro on George Pty Ltd (2004) 210 ALR 244 per Bennett J (in the context of a notice of termination). It has also been applied by the Victorian Court of Appeal in MLW Technology Pty Ltd v May [2005] VSCA 29 (in the context of a notice seeking enforcement of a term of a contract), by the New South Wales Court of Appeal in Etlis v New Age Constructions (NSW) Pty Ltd [2005] NSWCA 165 (in the context of a notice triggering an extension of time in relation to building work), and in the Supreme Court of New South Wales in McIntyre v Marshall [2004] NSWSC 412 (a vendor's notice to complete), Gibbins Thomson Pty Ltd v Council of the City of Liverpool [2004] NSWSC 1172 (a notice of failure to meet obligations under the contract), and Heaps v Addison Wesley Longman [1999] NSWSC 1093 (a notice from a tenant requesting the appointment of a second valuer in relation to a rent review). 132 The test laid down in Mannai is consistent with approaches taken to the validity of notices, or analogous documents, outside of contract law. For instance, in Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523, Burchett J warned, at 533, against adopting an "overly technical view" in considering the validity of search warrants. He stated, at 544, that in relation to the search warrants at issue in that case, "[t]he language may be infelicitous", however the nature of the offences specified in the search warrants was clear, and the search warrants were therefore valid. His Honour cited, at 543, New Zealand authority which adopted the test of what a "reasonable reader" would "gather" from the search warrants to determine whether they sufficiently indicated the offence involved: see Rural Timber Ltd v Hughes [1989] 3 NZLR 178. 142 In any event, the correct test to apply is not whether there is enough in a notice to put a reasonable tenant on inquiry to find out if a notice was indeed intended by the lessor to be a notice under 3.2.2. Nor is the subjective reaction of the recipient of the notice relevant: see Mannai at 767 per Lord Steyn and Lancecrest at [38]-[43] per Neuberger LJ and [88] per Brooke LJ. Either the notice is unequivocally a notice made pursuant to clause 3.2.2, or it is not. If the meaning of the notice is in doubt, objectively viewed, the notice is invalid. 152 I should note that in Central Pacific , it was suggested that the test expounded in Mannai was distinguishable from that in Catley v Watson : see Ormiston JA at 66,903 and Callaway JA at 66,909. 153 For my part, I cannot discern any difference in the effect of the tests in Mannai and Catley v Watson . Nor could the Victorian Court of Appeal in MLW Technology Pty Ltd v May (see [82] per Gillard AJA (with whom Winneke P and Buchanan JA agreed)).


case_title: McCarthy v McIntyre [1999] FCA 784

case_text: The second respondent submitted that relief for third party reliance on misleading or deceptive conduct is only available in the limited circumstance where the contravention was a "sine qua non" of the claimant entering into a transaction . It relied upon the statement by Hill, Sackville and Katz JJ in McCarthy v McIntyre [1999] FCA 784 at [50] in support of this submission: "Where a claimant is able to show that, but for the misleading or deceptive conduct, he or she would not have entered into a transaction, then such loss as flows directly to the claimant from the transaction will satisfy the requirement of causation. This is so where the claimant relies upon the misleading or deceptive conduct (the usual case). It is also so where a third party whose action was a sina qua non of the entry by the claimant into the transaction (the present case as alleged) relies upon the misleading or deceptive conduct." 103 No such transaction was entered into by the applicant, and nor, according to the second respondent, did the applicant itself rely upon the representation. 104 Further, the second respondent contended that if relief is more generally available for third party reliance in the circumstances of this case, the applicant's loss was not caused by the conduct of Colliers. Rather, the second respondent submitted that the applicant's loss was caused by their own failure to object to the notice, and/or the unconscionable conduct of the first respondent or its breach of the implied term of good faith, if indeed these causes of action are established. 105 The second respondent acknowledged that negligence on behalf of the "victim" is not a "defence" to a s 52 contravention (although I note that the Act has now been amended such that "contributory negligence" can be taken into account so as to reduce damages under s 82). However, the second respondent contended that this proposition does not apply where the conduct of the "victim" destroys the causal connection between the contravention of the Act, and the loss or damage suffered. In other words, the second respondent submitted that the applicant's failure to respond to the notice constituted a novus actus interveniens that broke the chain of causation. 106 As previously mentioned, the respondents submitted that the applicant did not adequately plead the claim that the notice is invalid because it failed to assess the rent on the assumption that only the fixtures and fittings in schedule 2 were to be taken into account. Nor, according to the respondents, had the claim been opened, or supported by any evidence specifically adduced in relation to it. As such, the respondents contended that the applicant is required to seek leave to amend its statement of claim in order to pursue this claim. The respondents opposed any such leave being granted. 164 The authorities are clear that the applicant does not itself have to rely upon the misrepresentation in order to make a claim under s 82. It may be sufficient for a third party to rely upon the misrepresentation, and for that third party reliance to cause the applicant's loss. See Janssen-Cilag Pty Limited v Pfizer Pty Limited (1992) 37 FCR 526 (" Janssen-Cilag "), Haynes v Top Slice Deli Pty Limited (1995) ATPR (Digest) |P46-147 (" Haynes "), and McCarthy v McIntyre [1999] FCA 784. However, the authorities require a "sufficient and direct link", or a "requisite element of proximity" in order for s 82 to be satisfied. 167 In McCarthy v McIntyre , a bank relied upon a misleading valuation in making a loan. The appellant suffered loss from the transaction entered into using the funds from the loan. The issue in that case was whether, if the transaction would not have been entered into by the appellant had it not been for the making of the loan, was this sufficient to make a claim under s 82. The Full Court (Hill, Sackville and Katz JJ) stated at [48]-[50]: "All that is necessary, in our opinion, is that there be a sufficient and direct link (ie, causation) between the loss or damage alleged to have been suffered by the claimant and the misleading or deceptive conduct. It is well established that the misleading or deceptive conduct need not be the sole cause of the loss. ... Precisely what test should be used to judge what constitutes the sufficient causal connection required between the misleading conduct and the outcome is the subject of some difficulty. Perhaps there is no simple test capable of formulation. It is necessary that the issue of causation be approached in what the High Court in Wardley called a "practical or commonsense" way. In many areas, the courts have applied a "but for" test of causation. As McHugh, Hayne and Callinan JJ pointed out in Marks v GIO Australia Holdings Ltd at 346, the idea that a "but for" test is the exclusive test of causation has been found wanting in some contexts and it may yet be found to be wanting in the context of ss 82 and 87 of the Trade Practices Act (and their State equivalents). Whether this be the case or not, the "but for" test, applied in a common sense and not a pedantic way, provides still a useful approach to the issue of causation. Where a claimant is able to show that, but for the misleading or deceptive conduct, he or she would not have entered into a transaction, then such loss as flows directly to the claimant from the transaction will satisfy the requirement of causation. This is so where the claimant relies upon the misleading or deceptive conduct (the usual case). It is also so where a third party whose action was a sina qua non of the entry by the claimant into the transaction (the present case as alleged) relies upon the misleading or deceptive conduct."


case_title: McCarthy v McIntyre [2000] FCA 1250

case_text: The matter was then remitted to the primary judge to make factual findings. The remittal judgment was also appealed. In that appeal ( McCarthy v McIntyre [2000] FCA 1250) , Whitlam, Emmett and Hely JJ found, at [53]: "there is no basis for concluding that, if the valuation of the Tropicana Hotel had been in the order of $2,100,000, Westpac would not have advanced the same proportion of the valuation, namely, $1,071,000 rather than $1,622,000. That, of course, would have given rise to the need to borrow additional funds elsewhere. There is no evidence to support a conclusion that it would not have been possible to borrow the additional funds from another source." 169 The reasoning of their Honours is relevant to this case. It cannot be said that "but for" the Collier's assessment, Mr Allen would have sent the applicant a notice for less than the sum actually specified in the notice. It is quite possible that a higher figure may have been specified, given that Mr Allen gave evidence that he believed Mr Williams' figure was "a bit low", and actually thought that the Mulgrave premises were worth more. Mr Allen would have been well within his rights to serve a notice which specified a higher amount, if he believed that this reflected the proper rent, taking into account the relevant criteria outlined in clause 3.2.2. The applicant's case would require me to make findings about "what would have happened" but for the alleged misleading conduct in a way that would border upon pure speculation. 170 Not being able to satisfy the "but for" test would have been a serious problem for the applicant. There is, however, a further insurmountable hurdle in relation to the applicant's case in relation to causation.


case_title: McIntyre v Marshall [2004] NSWSC 412


case_title: Mercantile Mutual Insurance (Australia) Ltd v Farrington (1996) 44 NSWLR 634


case_text: The first respondent submitted that the notice must be construed objectively and in context: Carradine Properties Ltd v Aslam [1976] 1 WLR 442 and Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19 ; [1997] AC 749 at 767 (" Mannai "). The first respondent also submitted that a reasonable recipient is to be credited with knowledge of the terms of the lease: Mannai . See also MLW Technology Pty Ltd v May [2004] VSCA 29. 130 Since Mannai , that test has been repeatedly applied in English courts. See, for example, the recent decision of the Court of Appeal in Lancecrest Limited v Asiwaju [2005] EWCA Civ 117 (" Lancecrest "). The test has been applied in this Court in Australasian Performing Right Association Ltd v Metro on George Pty Ltd (2004) 210 ALR 244 per Bennett J (in the context of a notice of termination). It has also been applied by the Victorian Court of Appeal in MLW Technology Pty Ltd v May [2005] VSCA 29 (in the context of a notice seeking enforcement of a term of a contract), by the New South Wales Court of Appeal in Etlis v New Age Constructions (NSW) Pty Ltd [2005] NSWCA 165 (in the context of a notice triggering an extension of time in relation to building work), and in the Supreme Court of New South Wales in McIntyre v Marshall [2004] NSWSC 412 (a vendor's notice to complete), Gibbins Thomson Pty Ltd v Council of the City of Liverpool [2004] NSWSC 1172 (a notice of failure to meet obligations under the contract), and Heaps v Addison Wesley Longman [1999] NSWSC 1093 (a notice from a tenant requesting the appointment of a second valuer in relation to a rent review). 153 For my part, I cannot discern any difference in the effect of the tests in Mannai and Catley v Watson . Nor could the Victorian Court of Appeal in MLW Technology Pty Ltd v May (see [82] per Gillard AJA (with whom Winneke P and Buchanan JA agreed)).


case_text: Amendments to pleadings should be allowed if it would not be unjust to do so: see National Australia Bank Ltd v Nobile (1988) 100 ALR 227 at 235-6 per Davies J. In my view, that test cannot be satisfied in the present case. The fact is that the respondents have been denied the opportunity to put on further evidence as to the value of the additional fixtures and fittings. They would be prejudiced if an amendment were allowed. Accordingly, leave to amend the further amended statement of claim is denied. 123 The appropriate course for the applicant to have taken was for it to have sought leave to amend its statement of claim after the conclusion of Mr Allen's evidence. It was during that evidence that the applicant contended it became clear that it would rely upon this ground as a basis for invalidity of the notice. By doing this, it may have avoided the prejudice it now claims it will suffer as a result of the pleadings not reflecting its claims in relation to the fixtures and fittings. 124 In any event, I would decline the application for leave to amend in part on the basis that the applicant's submission regarding the proper construction of clause 3.2.2 is by no means compelling (though it is plainly arguable). It is clear that the strength of the applicant's case, in relation to the proposed amendment, is a relevant consideration when determining whether to grant leave to amend. Had the applicant demonstrated a stronger case, regarding this issue, I may have been minded to allow the applicant to reopen its case, and the respondents to adduce further evidence in response. When all that can be said is that there is an arguable case, the balance of convenience weighs against adopting that course.


case_text: The applicant also cited the case of Norwich Union Life Insurance Society v Tony Waller Ltd (1984) 270 EG 42. That case dealt with a rent review clause and a notice purportedly served pursuant to that clause. The notice was not addressed to the tenant by its proper title and was flawed in other respects. It was in the following terms: " Without Prejudice Dear Sir, 19 Fawkon Walk, Hoddesdon. We have been instructed by your landlords, the Norwich Union Insurance Group to negotiate with you in connection with the rent review contained in your lease which becomes operative as at September 29 1982. It is out clients proposal to increase the rental to [sterling]11,500 per annum exclusive as from this date. We trust that this increase is acceptable to you and would be obliged if when replying you would enclose the name and address of the solicitors who will be acting on your behalf. Yours faithfully". 41 In that case, Harman J stated, at 43: "I have been much impressed with Mr Pryor's argument that this document was in truth equivocal. It is common ground between the parties that no specific form has to be adopted in order to constitute a trigger notice. Mr Wood's submission was that it should be a clear and unequivocal notice giving plain intimation to anyone receiving it of what it was. Certainly, that is, in my view, the desirable state of all such notices. But it being common ground that no special form of words is necessary no magic formula is involved the question is: trying to read it as a whole, looking at its confused terminology, its meaningless heading "Without prejudice" and its general ineptitude, is this a document which a tenant looking at it would think was a trigger notice?" 42 His Lordship concluded by finding, at 43, that: "although there are no magic words or magic formulae to be required before a rent review clause is invoked, ... the document does have to be clear and plain to any recipient."


case_text: The second respondent argued that Mr Williams was asked by Mr Allen for a "ball park" figure only, and that Mr Williams relied upon information provided by Mr Allen to inform the opinion expressed in the letter. The second respondent contended that all that was required of Mr Williams was that the opinion he expressed was honestly held and had a proper foundation: Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc [2002] FCA 860 ; (2002) 120 FCR 191 at 213. The second respondent submitted that Mr Williams' opinion was honestly held, and that he had a proper foundation for the opinion, namely the regard he had to comparable developments at Caribbean Gardens and a development called the "Pellicano development". It contended that Mr Williams was not required to undertake a detailed independent valuation. The relevant "standard" in terms of a proper foundation for the opinion was that of a real estate agent, rather than that of an independent valuer. Mr Williams is a real estate agent and could never provide a detailed, independent valuation. 100 In any event, the second respondent submitted that the figure provided by Mr Williams was within a permissible range of latitude that is appropriate for an "assessment" of this kind (14%), to that provided by Mr Finkemeyer. As such, the Colliers letter cannot be considered misleading. 101 Should the Colliers letter be found to be misleading or deceptive conduct under s 52 of the Trade Practices Act , the second respondent contended that it is not sufficient for the applicant to claim that the first respondent relied on the representation in order to make out a claim for damages under s 82 of the Trade Practices Act .


case_title: Ralph v Strutton [1969] Qd R 348


case_text: The test laid down in Mannai is consistent with approaches taken to the validity of notices, or analogous documents, outside of contract law. For instance, in Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523, Burchett J warned, at 533, against adopting an "overly technical view" in considering the validity of search warrants. He stated, at 544, that in relation to the search warrants at issue in that case, "[t]he language may be infelicitous", however the nature of the offences specified in the search warrants was clear, and the search warrants were therefore valid. His Honour cited, at 543, New Zealand authority which adopted the test of what a "reasonable reader" would "gather" from the search warrants to determine whether they sufficiently indicated the offence involved: see Rural Timber Ltd v Hughes [1989] 3 NZLR 178.


case_text: The applicant also relied upon the decision of the English Court of Appeal in Shirlcar Properties Ltd v Heinitz (1983) 268 EG 362 (" Shirlcar Properties "). That case also involved a rent review clause and "trigger" notice. The only matter at issue as to the validity of the notice was whether there was any doubt as to its meaning. 44 The body of the trigger notice was in the following form: "We act on behalf of your Landlords, Shirlcar Properties Ltd, and have been instructed to deal with the rent review on the above premises due as at the 29 th September 1981. The rent required as from the review date is [sterling]6,000 pa exclusive, and we look forward to receiving your agreement. Yours faithfully". 45 The agent's signature then followed. However, as Lawton J explained at 363: "a difficulty has arisen because the letter did not end with the signature of the estate agents: under that signature in capital letters which were underlined came the words "subject to contract". Immediately below that, also in capital letters, were the words "recorded delivery". " 143 It is true that the notice is headed "Notice of Rental Assessment commencing 1 March 2003 for 42-44 Glenvale Crescent, Mulgrave". However, the notice must be viewed as a whole and Shirlcar Properties makes it plain that what may otherwise be a valid notice can be invalidated by additional statements which affect the clarity, and import doubt, into the rest of the notice. In my view, the characteristics of the notice, outlined above at [136], import uncertainty and ambiguity into the notice.


case_text: In determining what orders may be appropriate, the parties may wish to consider the applicability of the principles laid down in United Scientific Holdings Ltd v Burnley Borough Council [1978] AC 904 (" United Scientific Holdings ") in relation to the retrospective application of rent reviews completed outside the period provided for under the lease. 180 In United Scientific Holdings , the House of Lords held that there was nothing in that case that displaced the presumption that strict adherence to the timetables specified in the relevant rent review clauses was not of the essence of the contract. 181 There were in fact two separate cases decided in United Scientific Holdings . The first involved a rent review on a 99 year lease. The review was to occur each ten years after the commencement of the lease, with the new rent to commence on 31 August of that year. The rent review mechanisms provided that the revised rent was to be determined by agreement, or failing agreement, by arbitration "during the year immediately preceding" the 10 year period to which that rent would relate. By the end of the first 10 year period, such agreement had not been reached, and nor had the matter been referred to arbitration. 182 The second case involved a 21 year lease, commencing upon 8 April 1968. The rent was to be reviewed every seven years. The relevant machinery provided for the lessor to serve a notice on the lessee, and the lessee to serve a counter-notice accepting the proposal or making a counter-offer. The parties were then to negotiate. If agreement had not been reached after a certain time, the lessor was required to appoint an independent valuer. In this case, the lessor's notice was served within time. However, no agreement had been reached by the parties, and the lessor failed to appoint an independent valuer within the time provided for under the lease. 183 In both cases the House of Lords held that time was not of the essence in relation to the clauses in the leases which the lessors had not complied with. The lessors had not lost the opportunity to have the rent for the next rental period reviewed by virtue of not complying with the time periods set down in the rent review machinery clauses. 184 The potential significance of the case for this proceeding in terms of any final orders that may be made is as follows. The House of Lords held that once the relevant terms were complied with (namely an arbitration concluded in the first case and independent valuation conducted in the second case), the new rent would be payable from the date that the lease provided that the new rental period was to commence. That is, despite the lessors' tardiness, not only did they maintain their rights to rent reviews, but once the rent reviews were completed, the revised rent applied retrospectively as if those reviews had been completed on time. 185 Whether the parties wish to consider or rely upon United Scientific Holdings in putting forward orders to reflect my reasons for judgement is, however, a matter for them. 186 There is also potentially a difficult question to be resolved regarding costs. The applicant has succeeded against the first respondent in relation to its claim that the notice was invalid. However, there were a number of other issues raised in relation to which it either did not succeed, or would not have succeeded. That is a matter that may have to be taken into account. 187 With regard to the second respondent, it is sufficient to note, for present purposes, that the applicant's claim against it must be dismissed. It is clear that the second respondent will be entitled to its costs. Beyond these findings, it may be necessary to hear the parties further.


case_text: In Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514, the High Court held that s 82 plainly incorporates the concept of causation. Mason CJ stated at 525: "The statutory cause of action arises when the plaintiff suffers loss or damage "by" contravening conduct of another person. "By" is a curious word to use. One might have expected "by means of", "by reason of", "in consequence of" or "as a result of". But the word clearly expresses the notion of causation without defining or elucidating it. In this situation, s.82(1) should be understood as taking up the common law practical or common-sense concept of causation recently discussed by this Court in March v. Stramare (E. & M. H.) Pty. Ltd. , except in so far as that concept is modified or supplemented expressly or impliedly by the provisions of the Act. (footnote omitted)


case_text: In support of this view, his Honour pointed at [26] to authoritative statements of principle by the High Court in Perre v Apand Pty Limited [1999] HCA 36 ; (1999) 198 CLR 180 and Agar v Hyde [2000] HCA 41 ; (2000) 201 CLR 552 in which emphasis was placed, in the development of the law of negligence, on the acceptance by individuals of personal responsibility for their own actions. 125 The following paragraphs of the conclusion of Spigelman CJ are instructive and I will set them out in full: 47 The discussion of vulnerability in... Perre v Apand Pty Ltd... and the authorities cited therein, place considerable emphasis on the practical inability of the injured party to take steps to protect him or her or itself, whether because of ignorance of the risk or otherwise. There was no such practical inability in the present case. 48 It may well be that the appellant found it difficult, even impossible, to control his urge to continue gambling beyond the point of prudence. However, there was nothing which prevented him staying away from the club. The suggested duty on the club to advise him to resign his membership emphasises the point. He could have resigned at any time. The requests to refuse to cash cheques when asked, did not shift his personal responsibility for his own actions to the club. There was no reason for the club to honour one request rather than the other. 49 In my opinion this combination of circumstances is such that no duty of care was owed of the character for which the appellant contended. The risks were obvious. As Gleeson CJ said with respect to the analogous situation of a participant in sport: "The only way to avoid risk of injury is not to play" ( Agar v Hyde at 563 [18].) The Appellant must accept responsibility for his own actions. There was no duty of care. There was no unconscionable conduct. The appeal should be dismissed with costs."


case_outcome: distinguished

case_text: The present case bears no resemblance to the factual findings made by Judge Naughton in American Express International v Famularo (unreported, District Court of NSW, Norton DCJ, 19 February 2001). In any event, Powell JA doubted the correctness of that decision in Reynolds v Katoomba RSL at [115].


case_text: The claim of unconscionable conduct under ss 51AA and/or 51AB of the Trade Practices Act was not properly pleaded. However, senior counsel for Mr Foroughi conceded that the claim was based on the same matters as are the subject of the claim for misleading conduct. Reference was made in Mr Foroughi's written submissions to well-known authorities including Commercial Bank of Australia Ltd v Amadio and Anor [1983] HCA 14 ; (1983) 151 CLR 447. 140 I do not consider that Mr Foroughi was under any special disability. Nor do I consider that Star City took advantage of him within the well-known statements of principle in Amadio . The findings I have made about the circumstances in which the exclusion order was made are quite inconsistent with any suggestion of unconscionable conduct.


case_text: The High Court observed in Concrete Constructions (NSW) Pty Limited v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 at 602-604 that s 52 was not intended to extend to all conduct in which a corporation may engage in the course of, or for the purposes of, its trading or commercial business. 93 Section 52 of the Trade Practices Act is concerned with the conduct of a corporation towards persons with whom the corporation has or may have dealings, in the course of those activities which bear a trading or commercial character: see Concrete Constructions at 604. 94 It is true, as the High Court said, that the dividing line may not always be clear and may require identification of what imports the requisite trading or commercial character to the impugned conduct. In the present case, the point was not fully argued and accordingly I do not propose to express a concluded view on this question. 95 The claim for breach of statutory duty under s 85 of the Casino Control Act was not argued at the hearing. In any event, the legislative history and the case law indicate that the intention of the Casino Control Act was not to confer a private right of action for damages on problem gamblers who may enter a casino in breach of an exclusion order. 96 The enactment of the Casino Control Act was preceded by an inquiry into the Establishment and Operation of Legal Casinos in New South Wales conducted by Sir Lawrence Street. Sir Lawrence's recommendations were adopted when the Casino Control Bill was introduced by the Minister; see Second Reading Speech, 5 March 1992, Legislative Assembly, pp 513, 514 and 516. 97 Sir Lawrence said in plain terms that the provisions dealing with exclusion orders should not include a requirement that a casino be required by law to exclude persons whose gambling appeared to be out of control. He considered that this may be seen as creating a statutory duty with a correlative right of action upon the gambler to sue the casino for damages, which he rejected. These comments applied in equal terms to voluntary and non-voluntary exclusion orders: see the report of the Hon. Sir Lawrence Street AC KCMG, "Inquiry into the Establishment and Operation of Legal Casinos in New South Wales" (27 November 1991) at [4.6.6] to [4.6.10] ("the Street Report").


case_text: I am not bound to accept Mr Foroughi's evidence of what took place on 16 December 2005 even though it was unchallenged in cross-examination; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 586-588. I reiterate what I have said about Mr Foroughi's credit. But even on his version of what took place on that day, the evidence does not establish that Star City knew that Mr Foroughi was gambling in the casino in breach of the terms of his voluntary exclusion order. Thus, s 85 would not have been engaged. 105 Mr Foroughi called evidence from Mr Ross Colquhoun, a clinical psychologist, to support his case. Mr Colquhoun saw Mr Foroughi on 2 and 9 November 2006 and, with the assistance of a colleague, took a history and administered a series of psychological tests. 106 Mr Colquhoun concluded that Mr Foroughi met the diagnostic criteria for pathological gambling stipulated in the Diagnostic and Statistical Manual of Mental Disorders (4 th ed text revision, American Psychiatric Association Washington, 2000) ("DSM-IV").


case_text: In support of this view, his Honour pointed at [26] to authoritative statements of principle by the High Court in Perre v Apand Pty Limited [1999] HCA 36 ; (1999) 198 CLR 180 and Agar v Hyde [2000] HCA 41 ; (2000) 201 CLR 552 in which emphasis was placed, in the development of the law of negligence, on the acceptance by individuals of personal responsibility for their own actions.


case_text: Moreover, in Preston v Star City Pty Ltd [1999] NSWSC 1273 at [87] , Wood CJ in Common Law referred to the Street Report to support the view that the requisite legislative intention to confer a private right of action was not to be found in the Casino Control Act . 99 Preston was not concerned with a breach of s 85 of the Casino Control Act , which was pleaded in the present case. Nevertheless, his Honour's remarks at [87] were directed at the establishment of the regulatory scheme as a whole. He said that the Street Report and the Second Reading Speech point towards "the establishment of the regulatory scheme as the means of addressing the negative aspects of legalised gambling." He continued by saying: "There is nothing in that material, or in the Act itself, to suggest that there should be a private right of action additional to the obligations imposed upon casino operators."


case_text: More recent authority does not assist Mr Foroughi's claim. In Preston v Star City Pty Limited (No 3) [2005] NSWSC 1223 , Hoeben J permitted a claim in negligence to proceed to trial because the allegations went beyond those made in Reynolds v Katoomba RSL. The claim was that Star City knew of the plaintiff's problem and actively encouraged and exploited it. No such claim is made in the present proceedings.


case_text: On all occasions on which Mr Foroughi entered the gaming areas of Star City after 18 May 2004, he did so in knowing breach of the terms of his voluntary exclusion order. His claims for damages are contrary to the principle of individual autonomy which underlies the common law's view as to the limits of legal responsibility for pure economic loss: see for example Reynolds v Katoomba RSL All Services Club Ltd [2001] NSWCA 234 ; (2001) 53 NSWLR 43 at [48] [49]. 6 Nevertheless, Mr Foroughi asserts that Star City owed him a duty of care, the content of which is not entirely clear, but which appears to have been to take reasonable steps to prevent him from entering the gaming areas of the casino and/or to remove him from the casino. Mr Foroughi also contends that express misleading representations, said to be in trade or commerce, were made to him by an employee of Star City when he was being escorted from the casino after the voluntary exclusion order was made. 7 The representations for which Mr Foroughi sues for damages under ss 52 and 82 of the Trade Practices Act (1974) (Cth), as amplified in his oral evidence, are said to have been to the effect that: • Star City had 5,000 surveillance cameras in the casino which would be able to detect Mr Foroughi if he entered the gaming areas; and • as soon as practicable after it became known to Star City that Mr Foroughi was in the casino, Star City would remove him from the premises. 121 The question of whether a registered club owed a duty of care to a member who it knew, or ought to have known, to be a problem gambler, to protect the person against financial loss from gambling was considered by the NSW Court of Appeal in Reynolds v Katoomba RSL. The Court (Spigelman CJ, Powell and Giles JJA) was unanimous in holding that no such duty was owed. 122 Chief Justice Spigelman observed that, save in an extraordinary case, an example of which he was unable to conceive, economic loss occasioned by gambling should not be accepted to be a form of loss for which the law permits recovery. 125 The following paragraphs of the conclusion of Spigelman CJ are instructive and I will set them out in full: 47 The discussion of vulnerability in... Perre v Apand Pty Ltd... and the authorities cited therein, place considerable emphasis on the practical inability of the injured party to take steps to protect him or her or itself, whether because of ignorance of the risk or otherwise. There was no such practical inability in the present case. 48 It may well be that the appellant found it difficult, even impossible, to control his urge to continue gambling beyond the point of prudence. However, there was nothing which prevented him staying away from the club. The suggested duty on the club to advise him to resign his membership emphasises the point. He could have resigned at any time. The requests to refuse to cash cheques when asked, did not shift his personal responsibility for his own actions to the club. There was no reason for the club to honour one request rather than the other. 49 In my opinion this combination of circumstances is such that no duty of care was owed of the character for which the appellant contended. The risks were obvious. As Gleeson CJ said with respect to the analogous situation of a participant in sport: "The only way to avoid risk of injury is not to play" ( Agar v Hyde at 563 [18].) The Appellant must accept responsibility for his own actions. There was no duty of care. There was no unconscionable conduct. The appeal should be dismissed with costs." 126 In Reynolds v Katoomba RSL , the Court refused to recognise a duty of care notwithstanding the trial judge's finding that the club knew that the plaintiff and his father had asked the club to prevent him from gambling to excess, in particular by refusing to cash cheques: see at [4] [6], [44] and [49]. 127 In my view the present claim is indistinguishable from the decision of the Court of Appeal in Reynolds v Katoomba RSL which I respectfully follow. While it is true that the question of whether a duty of care exists must depend on all the circumstances of the case, the claimed duty in the present proceedings is on an even weaker foundation than that which was relied upon by the plaintiff in Reynolds v Katoomba RSL . 128 Here, Mr Foroughi expressly and voluntarily undertook responsibility for his own conduct in agreeing not to enter the gaming areas of Star City and to seek assistance and guidance of a qualified and recognised counsellor. 129 More recent authority does not assist Mr Foroughi's claim. In Preston v Star City Pty Limited (No 3) [2005] NSWSC 1223 , Hoeben J permitted a claim in negligence to proceed to trial because the allegations went beyond those made in Reynolds v Katoomba RSL. The claim was that Star City knew of the plaintiff's problem and actively encouraged and exploited it. No such claim is made in the present proceedings. 141 The present case bears no resemblance to the factual findings made by Judge Naughton in American Express International v Famularo (unreported, District Court of NSW, Norton DCJ, 19 February 2001). In any event, Powell JA doubted the correctness of that decision in Reynolds v Katoomba RSL at [115].


case_text: Even if a private right of action exists against Star City, no such cause of action was established in the present case. In Rixon v Star City Pty Ltd [2001] NSWCA 265 , Sheller JA (with whom Priestley and Heydon JJA agreed) said that s 85(2) of the Casino Control Act combines two prerequisites of knowledge on the part of the casino operator, or other person to whom the section applies. 101 These requirements are, first, knowledge that a particular person is in the casino, and, second, knowledge that the person is the subject of an exclusion order: see Rixon at [33]. 102 Here, with the exception of the two occasions on which Mr Foroughi was detected in the casino in early 2006, the evidence disclosed only one occasion on which Mr Foroughi was present in the casino to the knowledge of Star City, after the exclusion order was made. That was on 16 December 2005 when he said he was offered admission to the high rollers' facilities. 103 Mr Foroughi was not challenged on that evidence, although the reliability of his evidence as to the actual dates of entry stated in Mr Foroughi's schedule were put directly in issue by Star City.


case_text: principles to be applied in applications for dispensation such as this one have been referred to in a number of cases. Those cases have recognised that the policy underlying s 191(2)(c) is to give every affected policy holder a summary of the scheme and an opportunity, if he or she so desires, to make submissions to the Court in respect of any application for confirmation of the scheme ( The Application of Commonwealth Life Ltd (2003) 12 ANZ Insurance Cases 90-117 per Sackville J at [8]). A right to be heard in relation to a proposed scheme is of little value if a person is unaware of the proposal ( Commonwealth Life Limited at [8]). For these reasons, it was emphasised by Gyles J in Challenger Life Limited [2004] FCA 618 that it would be unfortunate if a notion gained currency that s 191(2)(c) of the Act is a formality to be dispensed with as a matter of course (at [3]).


case_title: Challenger Life Limited [2004] FCA 618


case_text: the question is not free from authority to the contrary (see Re Insurance Australia Ltd [2004] FCA 524 ; (2004) 139 FCR 450 at [19] ), it is assumed for the purposes of the applications that ' affected policy owner ' as defined by the Act includes policy holders of both the transferring (Lifetime and National) and receiving (MLC) funds. The applicants seek a dispensation of their obligation to give summaries of the schemes to: • MLC policy holders who are affected by the Lifetime Scheme or the National Scheme; and • Lifetime and National policy holders for whom the applicants have no record of a current mailing address.


case_text: This Court has power to allow grounds to be argued on appeal that were not argued before the trial judge. The principles governing the exercise of this power have been considered by the Full Court on several occasions, and those principles are well settled: see H v Minister for Immigration and Multicultural Affairs (2001) 63 ALD 43 (Branson, Katz and Marshall JJ) (" H "); and VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 (North, Merkel and Weinberg JJ) (" VAAC ").


case_text: This Court has power to allow grounds to be argued on appeal that were not argued before the trial judge. The principles governing the exercise of this power have been considered by the Full Court on several occasions, and those principles are well settled: see H v Minister for Immigration and Multicultural Affairs (2001) 63 ALD 43 (Branson, Katz and Marshall JJ) (" H "); and VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 (North, Merkel and Weinberg JJ) (" VAAC "). 25 In VAAC at 177 [26], the Full Court identified factors which need to be considered in applying these principles: "It is therefore necessary to consider whether it is expedient in the interests of justice to allow the new ground to be argued and determined. In the present case, the interests of justice require reference to a number of considerations, namely, the appellant's prospects of success on the appeal on the new argument, the explanation given by the appellant for failing to raise the argument before the primary judge, the prejudice to the respondent in allowing the appellant to raise the new argument, the potentially serious consequences to the appellant if leave to amend is refused, and the integrity of the appellate process." 26 The Full Court in VAAC also observed that determining the appellant's prospects of success on the appeal requires consideration of the merits of the proposed new ground. In this case, the convenient course was to hear full argument on the appeal, including the proposed new ground of appeal, without ruling on the application for leave. In taking this course I took the following matters into account: a determination of the leave application would require consideration of the merits of the new ground; it was common ground between the appellant and the first respondent that if the proposed new ground of appeal had been raised as a ground of review before Hartnett FM, it would not have involved the calling of additional evidence; the first respondent did not suggest that it would be prejudiced if leave were granted to add the proposed new ground of appeal; and the duration of the appeal would not be significantly affected by allowing the proposed new ground to be fully argued before ruling on the application for leave to amend. However, I would not wish it to be thought that the same course will always be followed. There may be occasions when it is more appropriate or convenient to rule on an application for leave to amend a notice of appeal before embarking on the substance of the appeal itself. 36 There is no reason to doubt that 'information' in s 424A(1) is used in its ordinary sense of knowledge communicated or received concerning some fact or circumstance. In VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (" VAF ") at 476-477 [24], Finn and Stone JJ set out the following propositions about the meaning of the term 'information' in its s 424A(1) setting: "(i) the purpose of s 424A is to provide in part a statutory procedural analogue to the common law of procedural fairness: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at 429-30 [104] ; [2001] FCA 1196 ; 64 ALD 289 at 318. However the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; BC200301782; (ii) the word 'information' in s 424A(1) has the same meaning as in s 424; Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 ; (2001) 105 FCR 212 at 218 [20] ; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal: Tin v Minister for Immigration and Indigenous Affairs [2000] FCA 1109 ; BC200004607 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win , at 217-18 [19]-[22]; and (iii) the word does not encompass the Tribunal's subjective appraisals, thought processes or determinations: Tin at [54]; Paul at FCR 428 [95]; ALD 317; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 ; BC200107472 at [25]; approved [2002] FCAFC 120 ; BC200203793; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276 at 282-4 [26] - [29] ." The third proposition has not been doubted but its application has produced some fine distinctions.


case_text: Counsel for the appellant submitted that their failure to raise the s 424A ground before the Federal Magistrates Court is explained by the fact that the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 (" SAAP ") was handed down after Hartnett FM dismissed the appellant's application. In SAAP , the trial judge (Mansfield J) had held that, while there had been a failure to comply with s 424A , that failure had not deprived the appellant in that case of any opportunity to learn of material adverse to her claim or comment on it. In those circumstances, his Honour declined to grant relief: see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 577. The Full Court (Heerey, Moore and Kiefel JJ) dismissed the initial appeal: see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 411. However, the High Court took a different view and allowed the appeal. 31 In oral submissions in this Court, counsel for the appellant said that even if it be the case that the s 424A ground should have been raised before the Tribunal, its significance was brought into much sharper focus by the High Court's decision in SAAP . There is some force in this submission, particularly where there was a risk that any s 424A ground would fail at the same hurdle as that which proved decisive before Mansfield J and the Full Court in SAAP . 32 In all the circumstances, I consider that it is expedient in the interests of justice to grant leave to the appellant to amend the notice of appeal so as to raise the new ground. In reaching this conclusion, I have taken into account the potentially serious consequences to the appellant if leave to amend were to be refused and the lack of any prejudice to the respondents in allowing the appellant to raise the new argument. I also consider that the failure of the appellant to raise the argument before the Tribunal has been adequately explained. As to the prospects of success of the new ground, I consider that the ground is sufficiently arguable to warrant the grant of leave to amend. 33 Section 424A provides: "(1) Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies--by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person. (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non-disclosable information."


case_text: Counsel for the appellant submitted that their failure to raise the s 424A ground before the Federal Magistrates Court is explained by the fact that the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 (" SAAP ") was handed down after Hartnett FM dismissed the appellant's application. In SAAP , the trial judge (Mansfield J) had held that, while there had been a failure to comply with s 424A , that failure had not deprived the appellant in that case of any opportunity to learn of material adverse to her claim or comment on it. In those circumstances, his Honour declined to grant relief: see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 577. The Full Court (Heerey, Moore and Kiefel JJ) dismissed the initial appeal: see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 411. However, the High Court took a different view and allowed the appeal.


case_title: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 411


case_text: There is no reason to doubt that 'information' in s 424A(1) is used in its ordinary sense of knowledge communicated or received concerning some fact or circumstance. In VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (" VAF ") at 476-477 [24], Finn and Stone JJ set out the following propositions about the meaning of the term 'information' in its s 424A(1) setting: "(i) the purpose of s 424A is to provide in part a statutory procedural analogue to the common law of procedural fairness: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at 429-30 [104] ; [2001] FCA 1196 ; 64 ALD 289 at 318. However the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; BC200301782; (ii) the word 'information' in s 424A(1) has the same meaning as in s 424; Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 ; (2001) 105 FCR 212 at 218 [20] ; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal: Tin v Minister for Immigration and Indigenous Affairs [2000] FCA 1109 ; BC200004607 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win , at 217-18 [19]-[22]; and (iii) the word does not encompass the Tribunal's subjective appraisals, thought processes or determinations: Tin at [54]; Paul at FCR 428 [95]; ALD 317; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 ; BC200107472 at [25]; approved [2002] FCAFC 120 ; BC200203793; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276 at 282-4 [26] - [29] ." The third proposition has not been doubted but its application has produced some fine distinctions. 40 In VAF , Finn and Stone JJ at 478 [33] said that, in applying s 424A, it is necessary to differentiate between the integral and inessential parts for the reasons for the Tribunal's decision. Ultimately, the test which Finn and Stone JJ applied in VAF (at 481 [41]) was whether the information in question was so integral to the reasoning process rejecting the appellant's claim as to require, as a matter of fairness, that the appellant be told that information and why it was relevant to the review. 44 In SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 , the appeal arose from a Tribunal decision which had found that the applicant for a protection visa had fabricated his claim and various documents submitted in support of it. In reaching this conclusion, the Tribunal relied upon the fact that the applicant's written statement to the Department did not mention the claims of persecution that the Tribunal ultimately rejected. One of the issues that arose on the appeal to this Court was whether s 424A applied to the information contained in the applicant's original statement to the Department. After referring to VAF, Paul and WAGP , Allsop J at [26] and [34] held that it did: "I have extracted earlier the places in the Tribunal's reasons where the prior statement is used. Having read the whole of the reasons of the Tribunal, it is clear that the comprehensive disbelief of the appellant and the finding that he had brought forward fraudulent documentation was largely, if not wholly, a product of the importance placed by the Tribunal on the form and content of his first statement. In short, the Tribunal found that if what he was saying were true, it would have been referred to earlier. The fact that it was not, demonstrated the falsity of his evidence to the Tribunal. ... In my view, here, the knowledge of the Tribunal of the content of the earlier statement, including the limits of its contents can be seen to be a part of the reason for the decision because its form and content were instrumental in the Tribunal reaching a conclusion that the oral evidence of the appellant was false and the documents he was propounding were fraudulent." In Allsop J's view, the case before him involved something more than what Finn and Stone JJ in VAF at 476-477 [24] had called 'identified gaps, defects or lack of detail or specificity' in evidence given to the Tribunal, or what the Full Court in WAGP had described as a failure to mention something in evidence given to the Tribunal. 48 Moore J adopted and applied what had been said by Finn and Stone JJ in VAF : see SZEEU at [22] [25]. In his Honour's view, the flight information was not of sufficient significance to warrant a conclusion that it formed part of the Tribunal's reasons for affirming the decision of the Minister's delegate. This was because it was a subsidiary and peripheral reason which the Tribunal relied upon to reject the applicant's claim that charges were outstanding against him in Bangladesh. Other factors referred to by the Tribunal were of greater significance. As for the similar claims information, Moore J noted that the Tribunal only referred to this information after analysing and rejecting the applicant's central claims. In his Honour's view, the Tribunal therefore rejected the central claims of the appellant by a process of reasoning not dependent on the similar claims information: see SZEEU at [27]-[28]. 50 Allsop J held that the test which had been advanced in Paul and VAF had to be reconsidered in the light of the High Court's decision in SAAP . His Honour said that, to the extent that Paul and VAF both include notions of fairness derived from the rules of procedural fairness as part of the analysis of whether something is part of the reason for affirming the decision, those decisions are in conflict with the approach of the majority of the High Court in SAAP . In consequence, his Honour set out what he thought that the approach to be adopted in the future should be at [215]: "In my view, in the light of SAAP , in circumstances where one is faced with a decision of the Tribunal with reasons and the complaint is a contravention of s 424A(1), the question to ask, by reference to the reasons of the Tribunal in the context in which one find them (as revealing what would be the reason or a part of the reason for affirming the decision immediately prior to the making of the decision), is whether the information in question was a part (that is any part) of the reason for affirming the decision. To the extent that the reasons of the relevant majorities in Paul and VAF can be seen to require that the relevant part of the reason have a stature or importance, or be of a character which would make it unfair not to invoke the procedures of s 424A, I think SAAP requires that such an approach be rejected. It is only necessary that the information be a part of the reason." The application of these principles by the majority in SZEEU necessarily led to the conclusion that both the flight information and the similar claims information fell squarely within s 424A. It was sufficient that both pieces of information were referred to and relied upon by the Tribunal as relevant and operative considerations, whether or not they could be described as a subsidiary or a minor part of the reason for the Tribunal's decision. 62 In applying s 424A , it is necessary to focus on matters that, viewed prospectively, would be the reason or a part of the reason for the Tribunal's decision, or viewed retrospectively in the light of the Tribunal's actual decision, can be seen to be the reason, or a part of the reason, for the Tribunal's decision. At the outset of the Tribunal hearing and prior to the appellant's evidence to the Tribunal, I doubt that the Keskin information could be characterised as information that the Tribunal then considered, or might consider, would be the reason or a part of the reason for affirming the delegate's decision. By itself, the Keskin information was not adverse to the appellant. Numerous cases suggest that s 424A is concerned with information that is adverse to the interests of the visa applicant: see SAAP per McHugh J at 175 [50]; VAF per Finn and Stone JJ at 476-477 [24]; WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 per French J at 637 [57]; and M17/2004 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 85 ALD 597 per Ryan J at 615-616 [79] [83]. The Keskin information was simply factual information that might assist in testing the extent of the appellant's knowledge of the activities of the HRA in Turkey and the veracity of her claims. The same picture is presented when the matter is viewed retrospectively in the light of the Tribunal's reasons. The Tribunal attached some significance to the fact that in her evidence to the Tribunal the appellant displayed a lack of knowledge of the Keskin information, amongst other matters. In my opinion, the Keskin information cannot be characterised as the reason, or as a part of the reason, for the Tribunal's affirmation of the decision under review. 70 There is, in my opinion, a valid distinction between the HRA letter and the Tribunal's subjective evaluation of the weight that should be attached to it in the light of the appellant's oral evidence to the Tribunal. Such a distinction is supported by VAF per Finn and Stone JJ at 476-477 [24]; WAGP per Marshall, Weinberg and Jacobson JJ at 282-283 [26] [29]; Tin v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1109 per Sackville J at [53] [54]; and Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 120 per Carr, Moore and Marshall JJ. It is also consistent with the statutory purpose of s 424A , which (to paraphrase the language of Allsop J in Paul at [104]) is to ensure that the applicant is fairly informed of information adverse to his or her case so that investigation may be made, and steps may be taken, if possible, to meet it. By itself, the HRA letter was not the reason, or a part of the reason, for the Tribunal's affirmation of the delegate's decision. Nor was there any point of time prior to the Tribunal's decision at which the Tribunal would have considered that the HRA letter might have constituted the reason, or a part of the reason, for affirming the delegate's decision. It follows that the HRA letter does not fall within the scope of s 424A.


case_text: There is no reason to doubt that 'information' in s 424A(1) is used in its ordinary sense of knowledge communicated or received concerning some fact or circumstance. In VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (" VAF ") at 476-477 [24], Finn and Stone JJ set out the following propositions about the meaning of the term 'information' in its s 424A(1) setting: "(i) the purpose of s 424A is to provide in part a statutory procedural analogue to the common law of procedural fairness: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at 429-30 [104] ; [2001] FCA 1196 ; 64 ALD 289 at 318. However the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; BC200301782; (ii) the word 'information' in s 424A(1) has the same meaning as in s 424; Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 ; (2001) 105 FCR 212 at 218 [20] ; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal: Tin v Minister for Immigration and Indigenous Affairs [2000] FCA 1109 ; BC200004607 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win , at 217-18 [19]-[22]; and (iii) the word does not encompass the Tribunal's subjective appraisals, thought processes or determinations: Tin at [54]; Paul at FCR 428 [95]; ALD 317; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 ; BC200107472 at [25]; approved [2002] FCAFC 120 ; BC200203793; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276 at 282-4 [26] - [29] ." The third proposition has not been doubted but its application has produced some fine distinctions. 37 In Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 (" Paul ") at 428 [95], Allsop J, with whom Heerey J agreed, said: "... I agree with the distinction drawn by Sackville J in Tin v Minister for Immigration and Multicultural and Indigenous Affairs that the information of which particulars must be provided is information or knowledge that has come to or been gained by the Tribunal and is not the subjective appraisal or thought process of the Tribunal ... However, the distinction can become very fine. If the subjective thought processes of the Tribunal are as they are because of the perceived importance of some piece of knowledge, those thought processes may merely reveal the relevance (for the purposes of s 424(A)(1)(b)) of information (for s 424A(1)(a)), requiring the Tribunal to give particulars of that information and to explain its relevance." 38 Allsop J also observed that some unbundling of the immediate reason for the Tribunal's affirmation may be required, and that in any given circumstance it may not be straightforward to identify from an expressed reasoning process whether information was the reason or a part of the reason for affirmation: see Paul at 428-429 [99]-[100]. 39 In the result, Allsop J adopted the following approach at 432 [116]: "The question as to whether information would be the reason or a part of the reason for affirmation is ultimately decided, in my view, by whether it can be characterised as sufficiently important to the reasoning process in the rejection of the appellant's claims, for fairness to warrant that the applicant be told if it is so that he or she can understand and be able to meet the integers or elements that make up the Tribunal's reasons or conclusion thus far reached (hence 'would') for finding adversely to the applicant." 41 Merkel J dissented. In the course of his Honour's reasons for judgment, he cautioned that it is impermissible to impose an additional criterion that the information must be an 'integral' or 'essential' reason for the decision in order for s 424A to apply. His Honour recognised that it may not be straightforward to identify from the reasons themselves whether the information in question was part of the reason for the Tribunal's decision. In discussing Paul , his Honour approved of the fact that Allsop J had eschewed a narrow view of what would constitute the reason or part of the reason for a decision to affirm the decision of the delegate. However, his Honour added the following cautionary words at 483 [54]-[55]: "His Honour's observations may provide guidance for assessing whether particular information was part of the reason for the Tribunal's decision where, as was the case in Paul , it may not be straightforward to identify from the reasons themselves whether the information in question was part of the reason for the Tribunal's decision. However, his Honour should not be regarded as having intended to lay down an exhaustive test for the circumstances in which s 424A is to apply. If his Honour's observations (at FCR 432 [116]; ALD 320-1) were said to lay down such a test, that test would become a substitute for the words the legislature has used in the section itself. Thus in a case, of which Al Shamry is an example, where it is clear on the face of the reasons expressed by the Tribunal that the information in question was a part of the reason for the decision, Allsop J's observations cannot be employed to arrive at a different conclusion because to do so would be to impermissibly import into s 424A an additional criterion of 'sufficient importance'." 50 Allsop J held that the test which had been advanced in Paul and VAF had to be reconsidered in the light of the High Court's decision in SAAP . His Honour said that, to the extent that Paul and VAF both include notions of fairness derived from the rules of procedural fairness as part of the analysis of whether something is part of the reason for affirming the decision, those decisions are in conflict with the approach of the majority of the High Court in SAAP . In consequence, his Honour set out what he thought that the approach to be adopted in the future should be at [215]: "In my view, in the light of SAAP , in circumstances where one is faced with a decision of the Tribunal with reasons and the complaint is a contravention of s 424A(1), the question to ask, by reference to the reasons of the Tribunal in the context in which one find them (as revealing what would be the reason or a part of the reason for affirming the decision immediately prior to the making of the decision), is whether the information in question was a part (that is any part) of the reason for affirming the decision. To the extent that the reasons of the relevant majorities in Paul and VAF can be seen to require that the relevant part of the reason have a stature or importance, or be of a character which would make it unfair not to invoke the procedures of s 424A, I think SAAP requires that such an approach be rejected. It is only necessary that the information be a part of the reason." The application of these principles by the majority in SZEEU necessarily led to the conclusion that both the flight information and the similar claims information fell squarely within s 424A. It was sufficient that both pieces of information were referred to and relied upon by the Tribunal as relevant and operative considerations, whether or not they could be described as a subsidiary or a minor part of the reason for the Tribunal's decision. 52 I do, however, wish to make one observation. In my view, it does not follow from the decisions in SAAP and SZEEU that the statutory purpose of s 424A is irrelevant to its proper construction and application. In SAAP , McHugh J at 181 [73] said that s 424A is a statutory formulation of the obligation to accord procedural fairness in the conduct of a review, and endorsed statements in this Court to the same effect: see SAAP at 179 [66]. Hayne J emphasised the crucial role played by the language, scope and objects of s 424A in its construction and application: see SAAP at 211 [208]. In Paul , Allsop J construed and applied s 424A in the light of its purpose of 'ensuring that the claimant is fully informed of information adverse to his or her case (in the manner described by the section) so that investigation may be made, and steps may be taken, somehow, if possible, to meet it': see Paul at 429-430 [104]. In Al Shamr y at 40 [39], Merkel J said that s 424A enacts a basic principle of the common law rules of natural justice that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with relevant matters adverse to his or her interests that the repository of the power proposes to take into account in deciding upon its exercise. Cases may arise in which it is appropriate to take account of the statutory purpose of s 424A in determining whether there is any information within the meaning of s 424A, or whether particular information is the reason, or a part of the reason, for the Tribunal's decision. I do not consider that there is anything to the contrary in SZEEU . 70 There is, in my opinion, a valid distinction between the HRA letter and the Tribunal's subjective evaluation of the weight that should be attached to it in the light of the appellant's oral evidence to the Tribunal. Such a distinction is supported by VAF per Finn and Stone JJ at 476-477 [24]; WAGP per Marshall, Weinberg and Jacobson JJ at 282-283 [26] [29]; Tin v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1109 per Sackville J at [53] [54]; and Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 120 per Carr, Moore and Marshall JJ. It is also consistent with the statutory purpose of s 424A , which (to paraphrase the language of Allsop J in Paul at [104]) is to ensure that the applicant is fairly informed of information adverse to his or her case so that investigation may be made, and steps may be taken, if possible, to meet it. By itself, the HRA letter was not the reason, or a part of the reason, for the Tribunal's affirmation of the delegate's decision. Nor was there any point of time prior to the Tribunal's decision at which the Tribunal would have considered that the HRA letter might have constituted the reason, or a part of the reason, for affirming the delegate's decision. It follows that the HRA letter does not fall within the scope of s 424A.


case_text: There is no reason to doubt that 'information' in s 424A(1) is used in its ordinary sense of knowledge communicated or received concerning some fact or circumstance. In VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (" VAF ") at 476-477 [24], Finn and Stone JJ set out the following propositions about the meaning of the term 'information' in its s 424A(1) setting: "(i) the purpose of s 424A is to provide in part a statutory procedural analogue to the common law of procedural fairness: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at 429-30 [104] ; [2001] FCA 1196 ; 64 ALD 289 at 318. However the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; BC200301782; (ii) the word 'information' in s 424A(1) has the same meaning as in s 424; Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 ; (2001) 105 FCR 212 at 218 [20] ; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal: Tin v Minister for Immigration and Indigenous Affairs [2000] FCA 1109 ; BC200004607 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win , at 217-18 [19]-[22]; and (iii) the word does not encompass the Tribunal's subjective appraisals, thought processes or determinations: Tin at [54]; Paul at FCR 428 [95]; ALD 317; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 ; BC200107472 at [25]; approved [2002] FCAFC 120 ; BC200203793; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276 at 282-4 [26] - [29] ." The third proposition has not been doubted but its application has produced some fine distinctions. 42 In WAGP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276 (" WAGP "), the Full Court (Marshall, Weinberg and Jacobson JJ) held that the word 'information' in s 424A(1) does not encompass a failure to mention a matter to the Tribunal. Their Honours said at 282 [26]: "It is inappropriate to speak of the RRT 'getting information' where the substance of that information is merely an observation that the appellant did not refer to a particular matter in his evidence. The fact that the appellant did not refer to a particular matter constitutes nothing more than an aspect of the RRT's reasoning concerning a deficiency in his evidence. That observation cannot meaningfully be described as 'information'. Moreover, the appellant's submission cannot be accepted as a matter of sound policy. To permit an applicant for review of a delegate's decision to comment on each deficiency in his or her evidence, as viewed by the RRT, has the potential to allow a protracted and almost never ending process of review, a result plainly not intended by the legislature." 43 The Full Court went on to distinguish Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 ; (2001) 105 FCR 212, where the Full Court (Whitlam, Tamberlin and Sackville JJ) held that the assertions of an informant which cast doubt on the applicant's version of events constituted information for the purposes of s 424A(1). The Full Court said that there was a material difference between assertions of an informant and observations or conclusions arrived at by the Tribunal in weighing up aspects of the evidence of an applicant by reference to gaps or defects in that evidence: see WAGP at 282 [27]. 44 In SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 , the appeal arose from a Tribunal decision which had found that the applicant for a protection visa had fabricated his claim and various documents submitted in support of it. In reaching this conclusion, the Tribunal relied upon the fact that the applicant's written statement to the Department did not mention the claims of persecution that the Tribunal ultimately rejected. One of the issues that arose on the appeal to this Court was whether s 424A applied to the information contained in the applicant's original statement to the Department. After referring to VAF, Paul and WAGP , Allsop J at [26] and [34] held that it did: "I have extracted earlier the places in the Tribunal's reasons where the prior statement is used. Having read the whole of the reasons of the Tribunal, it is clear that the comprehensive disbelief of the appellant and the finding that he had brought forward fraudulent documentation was largely, if not wholly, a product of the importance placed by the Tribunal on the form and content of his first statement. In short, the Tribunal found that if what he was saying were true, it would have been referred to earlier. The fact that it was not, demonstrated the falsity of his evidence to the Tribunal. ... In my view, here, the knowledge of the Tribunal of the content of the earlier statement, including the limits of its contents can be seen to be a part of the reason for the decision because its form and content were instrumental in the Tribunal reaching a conclusion that the oral evidence of the appellant was false and the documents he was propounding were fraudulent." In Allsop J's view, the case before him involved something more than what Finn and Stone JJ in VAF at 476-477 [24] had called 'identified gaps, defects or lack of detail or specificity' in evidence given to the Tribunal, or what the Full Court in WAGP had described as a failure to mention something in evidence given to the Tribunal. 45 In the course of his reasons for judgment, Allsop J discussed the decision of Branson J in NAIH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1010 ; (2002) 124 FCR 223 (" NAIH "), which had been cited with approval by the Full Court in WAGP . In NAIH at 226 [8], her Honour had doubted that an intention can be discerned in s 424A that the totality of the claims and assertions in a statement made by an applicant in support of his or her application, and the general impression of coherence or otherwise created by those claims and assertions, is information received by the Tribunal. Allsop J distinguished NAIH on several grounds. First, he thought that Branson J was not directing herself to a case where the very form and content of the applicant's original statement is central to the rejection of virtually all of the applicant's evidence. Secondly, while the Tribunal contrasted the applicant's evidence with the cohesive account in the earlier statement, Branson J found that the Tribunal based its decision on the unconvincing nature of the applicant's oral evidence before it. 70 There is, in my opinion, a valid distinction between the HRA letter and the Tribunal's subjective evaluation of the weight that should be attached to it in the light of the appellant's oral evidence to the Tribunal. Such a distinction is supported by VAF per Finn and Stone JJ at 476-477 [24]; WAGP per Marshall, Weinberg and Jacobson JJ at 282-283 [26] [29]; Tin v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1109 per Sackville J at [53] [54]; and Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 120 per Carr, Moore and Marshall JJ. It is also consistent with the statutory purpose of s 424A , which (to paraphrase the language of Allsop J in Paul at [104]) is to ensure that the applicant is fairly informed of information adverse to his or her case so that investigation may be made, and steps may be taken, if possible, to meet it. By itself, the HRA letter was not the reason, or a part of the reason, for the Tribunal's affirmation of the delegate's decision. Nor was there any point of time prior to the Tribunal's decision at which the Tribunal would have considered that the HRA letter might have constituted the reason, or a part of the reason, for affirming the delegate's decision. It follows that the HRA letter does not fall within the scope of s 424A.


case_text: There is no reason to doubt that 'information' in s 424A(1) is used in its ordinary sense of knowledge communicated or received concerning some fact or circumstance. In VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (" VAF ") at 476-477 [24], Finn and Stone JJ set out the following propositions about the meaning of the term 'information' in its s 424A(1) setting: "(i) the purpose of s 424A is to provide in part a statutory procedural analogue to the common law of procedural fairness: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at 429-30 [104] ; [2001] FCA 1196 ; 64 ALD 289 at 318. However the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; BC200301782; (ii) the word 'information' in s 424A(1) has the same meaning as in s 424; Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 ; (2001) 105 FCR 212 at 218 [20] ; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal: Tin v Minister for Immigration and Indigenous Affairs [2000] FCA 1109 ; BC200004607 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win , at 217-18 [19]-[22]; and (iii) the word does not encompass the Tribunal's subjective appraisals, thought processes or determinations: Tin at [54]; Paul at FCR 428 [95]; ALD 317; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 ; BC200107472 at [25]; approved [2002] FCAFC 120 ; BC200203793; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276 at 282-4 [26] - [29] ." The third proposition has not been doubted but its application has produced some fine distinctions. 43 The Full Court went on to distinguish Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 ; (2001) 105 FCR 212, where the Full Court (Whitlam, Tamberlin and Sackville JJ) held that the assertions of an informant which cast doubt on the applicant's version of events constituted information for the purposes of s 424A(1). The Full Court said that there was a material difference between assertions of an informant and observations or conclusions arrived at by the Tribunal in weighing up aspects of the evidence of an applicant by reference to gaps or defects in that evidence: see WAGP at 282 [27].