case_text: consideration is "irrelevant" in an administrative law error sense only if it is a consideration the taking into account of which is forbidden by the legislation concerned, either expressly or by implication having regard to its subject matter, scope and purpose: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1985-1986) 162 CLR 24 at 39-40. The considerations that the Act made relevant to the formation of an opinion as to whether Mrs Holmes were living separately and apart on a permanent or indefinite basis were those specified in s 4(3). It is significant that this subsection's opening command is to have regard to all the circumstances of the relationship between two people. In the statutory context of whether she was a "member of a couple", the only effect in law of Mrs Holmes' subsisting legal marriage was that she was in form in a relationship with her husband. That this was the form of the relationship meant nothing more in the circumstances than that the requirement to have regard to the considerations mentioned in s 4(3) came both from the opening words of that subsection as well as from s 4(2)(a) of the Act. Irrespective of whether its application is engaged via the existence of a legal marriage, the primary direction given by s 4(3) is to assess the nature and quality of a relationship between two people by reference to all of the circumstances of that relationship. The evident intent of Parliament is to ensure that administrative decision-makers concern themselves with the substance, not the form, of a relationship; hence this primary direction in the subsection's preamble. The considerations which follow in that subsection are not intended to be exhaustive. They are though "relevant considerations" in the sense described in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (ibid). Depending on the level of abstraction at which one approaches the meaning and application of s 4(3), there is no error in approaching the question of whether to form the required statutory opinion with a pre-conception of what constitutes a "marriage". How else, especially when the members of a couple are legally married, is sensible meaning to be given to the consideration specified in s 4(3)(e)(iv), " whether the people see their relationship as a marriage-like relationship "? In that context, the Act anticipates that a concept of marriage will serve as a touchstone against which is to be measured how the parties to a relationship themselves conceive of their relationship, irrespective of its legal form. The learned senior member, correctly in my respectful opinion makes this very observation in par 16 of his reasons.


case_outcome: cited

case_text: means nothing more than resembling a marriage. In this very general sense some meaning, a usual or "normal" meaning, must be given to the word "marriage". In considering what this meaning might be the learned senior member evidently gained assistance from and came to apply a meaning given to the word by Deputy President Forgie in Re VCG and Secretary, Department of Employment and Workplace Relations ; [2006] AATA 956 ; (2006) 93 ALD 215 , at 223, [15] in which she observed that a general feature of marriage was "..... a sense of union between two people and a common purpose" . That observation by the Deputy President followed a comprehensive survey by her of judicial observations and those in the texts of various religions as to what constituted "marriage". A similar meaning for the word "marriage" is derived by recourse to standard Australian dictionaries, "a lawful union between a man and a woman for life": Macquarie Dictionary, Federation Edition , p. 1172; "the legal union of a man and a woman in order to live together and often to have children": Australian Oxford Dictionary , p. 828. The essential quality of the word, "marriage" is union. The word "marriage" as used as part of the expression "marriage-like" in ss 4(2), 4(3) and 4(3A) of the Act is intended to apply to persons irrespective of their personal religious beliefs or in the absence of any such beliefs. These subsections are intended to have application irrespective of cultural and religious predominance or difference in our society. Beyond the general level of abstraction that "marriage" as used in this expression involves a sense of union between two people and a common purpose one must be careful to guard against discounting whether a relationship is or is seen to be "marriage-like" because of a priori assumptions concerning marriage grounded, for example, in Judeo-Christian beliefs, however deeply and sincerely one personally holds those beliefs. Reading the published reasons as a whole, it seems to me that the Tribunal was astute to approach the assessment of the relationship between Mrs Holmes and her husband in this way and without such assumptions. In deciding, as he thought was his task, whether the parties were in a marriage-like relationship or conversely were living separately and apart on a permanent or indefinite basis the learned senior member cautioned that a relationship " is not assessed against some hypothetical standard which assumes that a marriage or marriage-like relationship is mostly full of positive aspects and goodwill. Families and those within them, the adult members and children, are all capable of the range of human emotions including the negative traits such as violence, hatred, selfishness and mental health disorders. The complexity of human behaviour and the capacity for some to withstand the stressors of life to a greater or lesser degree makes it complex and often unpredictable " (Reasons, par 18).


case_text: have already referred to the reminder given by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 as to the distinction in law between a "jurisdictional fact" grounded in the holding of an opinion or state of satisfaction as to whether a given state of affairs exists and one grounded in whether that state of affairs truly exists. Earlier in time and in a passage to which Gummow J drew attention in his judgment in Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 , at 653-654 [136], Gibbs J had observed in Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119, in relation to the review of a "satisfaction" based decision by a court: "In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached." The formation of an opinion for the purposes of s 4(2)(a) of the Act as to whether a legally married couple were living separately and apart on a permanent or indefinite basis is a paradigm example of the kind of statutory provision to which reference is made in the passages quoted from Eshetu and Buck v Bavone .


case_text: similar effect is a passage in the speech of Lord Brightman in Puhlhofer v Hillingdon [1986] UKHL 1 ; [1986] AC 484 , at 518, referred to with approval by Gleeson CJ and McHugh J in their separate, joint judgment in Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 , at 626-627 [41], with whose reasons Hayne J (at 659 [158]) relevantly agreed: "Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely."


case_title: Waterford v The Commonwealth (1986-1987) 163 LR 54

case_text: these circumstances, the answering of the questions posed in pars 2.10 and 2.11 of the notice of appeal is ultimately nothing to the point. Why that is so was explained in the following remarks made by Brennan J in Waterford v The Commonwealth [1987] HCA 25 ; (1986-1987) 163 CLR 54 at 77: "A finding by the AAT on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law. Section 44 of the AAT Act confers on a party to a proceeding before the AAT a right of appeal to the Federal Court of Australia 'from any decision of the Tribunal in that proceeding' but only 'on a question of law'. The error of law which an appellant must rely on to succeed must arise on the facts as the AAT has found them to be or it must vitiate the findings made or it must have led the AAT to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact. " (Emphasis added)


case_text: aside, the judicial review of a finding of fact on an error of law ground is to be undertaken in conformity with Minister for Immigration & Multicultural Affairs v Epeabaka [1999] FCA 1 ; (1998) 84 FCR 411 , at 421, [22] in which the Full Court (Black CJ, von Doussa and Carr JJ) held that the following passage from the judgment of Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 356 is to be regarded as providing "authoritative guidance": "Thus, at common law, according to Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place."


case_title: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321


case_outcome: applied

case_text: is a limited class of case in which an error of law does not vitiate the Tribunal's decision such that, without violating the role consigned to it in an appeal on a question of law, the Court may, in determining the appeal, dismiss the appeal. The authorities concerning this class of case were collected and discussed by Sackville J in Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 , at 560-561 where his Honour observed: "In certain circumstances, however, the Court may exercise the power in s 44(4) of the AAT Act and make orders finally resolving the matter. In Harradine v Secretary, DSS, for example, the only question was the construction of a particular section of an Act. The parties agreed that whoever succeeded on that issue was entitled, as a matter of law, to succeed in the AAT. Accordingly, the Court made orders finally disposing of the case without remitting the matter to the AAT (at 36, 43, 49). Similarly, if the Court hearing an appeal from the AAT finds an error of law in its reasons, but nonetheless considers that the decision was clearly correct on the material before the AAT it is open to the Court to dismiss the appeal: Austin v Deputy Secretary, Attorney-General's Department (1986) 12 FCR 22 (FCA/FC), at 26-27; McAuliffe v Secretary, Department of Social Security [1992] FCA 483 ; (1991) 23 ALD 284 (FCA/von Doussa J), at 295-296, aff'd at [1992] FCA 483 ; (1992) 28 ALD 609 (FCA/FC), at 618-619; State Rail Authority of New South Wales v Collector of Customs [1991] FCA 610 ; (1991) 33 FCR 211 (FCA/FC), at 217. The scope of the power conferred by s44(4) of the AAT Act is, however, subject to limitations. These flow from both the fact that an appeal from the AAT is on a question of law only and from the language of s44(4) and (5). The limitations were explained by Sheppard J in Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99 ; (1982) 63 FLR 441 (FCA/FC), at 454- 455: 'It is in my opinion not correct to say that this Court is by these provisions given wide powers to make such orders as it thinks fit. Implicit in its powers are a number of restrictions. The appeal is expressly limited to error of law, which alleged error is the sole matter before this Court and is the only subject matter of any order made consequent on the appeal. The order which this Court can make after hearing the appeal is also similarly restricted to an order which is appropriate by reason of its decision. It follows that the only order which can be properly made is one the propriety of which is circumscribed by and necessary to reflect this Court's view on the alleged or found error of law. To go further I would see as amounting to exceeding the jurisdiction of this Court under this section. A power to make "such order as it thinks appropriate by reason of its decision" is much more restrictive than a power "to make such order as it sees fit" or a power "to make a decision in substitution for the decision" the subject of the appeal. S44(5) confirms, though it states that it does not purport to limit, this as an appropriate reading of the power in s44(4) when it limits its statement to the express power of the Court when setting aside a decision to the making of an order remitting the case to be heard again. Having set aside a decision, it has no express power to substitute what it sees as the correct decision unless such is the appropriate order by reason of its decision on the point of law in the context of the particular proceedings.'"


case_text: in time and having referred with approval to Morales' Case , the Full Court (Ryan, O'Connor and Weinberg JJ) in Tankey v Adams [2000] FCA 1089 ; (2000) 104 FCR 152 at 183 [119] stated that, " The relief which may be granted will depend on the effect of the error of law on the decision-making process. Errors of law which are 'harmless' or 'trivial' do not normally warrant the setting aside of an administrative decision Department of Social Security v McKenzie." This statement, in my respectful opinion, is peculiarly apposite in the circumstances of the present case. The Tribunal did err in law in formulating the questions before it for decision but, for the reasons I have given, that error was "harmless". It seems to me that this is a case in which it is open to determine the appeal by dismissing it. After the conclusion of oral argument on the appeal the Court was advised that the Secretary's legal representatives had reached an agreement with those of Mrs Holmes in relation to costs.


case_text: the conclusion of his judgment in Victoria v The Commonwealth [1971] HCA 16 ; (1970-1971) 122 CLR 353 , at 404-405 Windeyer J felt moved to refer to a passage from Edmund Burke's Observations on a Late Publication intituled The Present State of the Nation , written in 1769 which he had recently come across in which Burke had opined, "Men of sense when new projects come before them always think a discourse proving the mere right or mere power of acting in the manner proposed to be no more than a very unpleasant way of misspending time." That reference, of course, had a particular resonance in a case concerning the power of the Commonwealth Parliament to subject the States to pay-roll tax. The present case concerns not high matters of public finance and constitutional law but government at its most intimate, whether an administrative body's value judgment that a woman subjected to domestic violence was living separately and apart from her husband on an indefinite basis was flawed by error of law such that the case had to be considered on the merits yet again. Seized with the knowledge that the error was one induced by the Secretary and that it was, in the circumstances, harmless, any man of sense might well consider that Burke's description also had application in relation to the Secretary's appeal. It only comes to this, that I dismiss the appeal and make no order as to costs. I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 20 February 2008 Counsel for the Applicant: Ms L Walker Solicitor for the Applicant: Sparke Helmore Lawyers Counsel for the Respondent: Ms N Kidson Solicitor for the Respondent: Welfare Rights Centre Inc Date of Hearing: 19 December 2007; further written submissions by direction February 2008 Date of Judgment: 20 February 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/105.html


case_outcome: followed

case_title: Edman v Ross (1922) 22 SR (NSW) 351

case_text: I have noted earlier, the applications made by Mr Campbell are made on three bases. I turn to the basis of common law principles. It is an accepted principle, which has long been established, that a director of a company has a right to inspect the Company's records. What may be in issue is whether there is an absolute right of access to the Company's records, or whether that, in a given case, the court has a discretion to determine whether or not a director should be permitted to have such access. In Edman v Ross (1922) 22 SR (NSW) 351 , Street CJ in Eq said, at 360-361: "A director's right to inspect and take copies of documents belonging to his company is, I think, clear. ... The right to inspect documents and, if necessary, to take copies of them is essential to the proper performance of a director's duties, and, though I am not prepared to say that the Court might not restrain him in the exercise of this right if satisfied affirmatively that his intention was to abuse the confidence reposed in him and materially to injure the company, it is true nevertheless, that its exercise is, generally speaking, not a matter of discretion with the Court and that he cannot be called upon to furnish his reasons before being allowed to exercise it. In the absence of clear proof to the contrary, the Court must assume that he will exercise it for the benefit of his company." In Boulos v Carter; Re TARBS World TV Australia Pty Ltd (2005) 220 ALR 572 , Barrett J said at 582: It is unnecessary to go into any detailed analysis of the general law position. The right of a director to inspect company documents, and, if necessary, to take copies of them has long been recognised as one of the rights that general law affords a director for the purpose of enabling him or her to perform the functions and discharge the duties of the office of director. The classic statement of this right appears in a judgment of Street CJ in Eq Edman v Ross ." Edman v Ross (supra) was also followed by De Jersey J, as he then was, in Kriewaldt v Independent Direction Ltd (1996) 14 ACLC 73 , where at 75, his Honour said: "A director obviously has a right of access to company documents to facilitate the performance of his or her duty, and that carries with it a right to make copies. See Edman v Ross and McGee v Sanders [1991] FCA 554 ; (1991) 32 FCR 397 , 405". As was pointed out by Street CJ in Eq in Edman v Ross (supra) (par [28] above), a limitation on that right might arise if the court was satisfied affirmatively that the director's intention was to abuse the confidence reposed in him and materially to injure the Company. I should point out that on the material before me, I do not consider that I should make a finding that what Mr Campbell proposes, or what his intention is, is to abuse the confidence reposed in him, or to materially injure the Company. I am making no ultimate findings in this proceeding in relation to the substantive issues raised by Mr Campbell and Mr Pursell in their affidavits. This matter has been brought on as a matter of urgency. Neither deponent was cross-examined and any views I express at the moment are tentative, insofar as they relate to findings as to what the particular purpose or intention of the parties, in particular, Mr Campbell, may be. Counsel for the Company submitted that the common law right arises on the basis of a director having access for the purposes of the Company, and that if that access is not sought in the interests of the Company, then the common law right could not be availed of. Counsel for the Company submitted that Mr Campbell wanted access to the proxies delivered to Computershare and to what was called the "live count" to enable him, amongst other matters, to lobby proxy holders and to establish a foundation to challenge votes that may be cast. Counsel for the Company submitted that these purposes related to personal interests.


case_outcome: considered

case_text: Conway v Petronious Clothing Co Ltd [1978] 1 WLR 72 , Slade J followed this observation of Street CJ and reached the following conclusions in relation to the nature of the rights of a director to inspect the books of account of a company: "1. The right exists, but it is a right conferred by the common law, and not by statute ... The right of a director to see his company's books of account, which is exercisable both at and outside meetings, is conferred by the common law in order to enable the director to carry out his duties as a director ... The right of a director to inspect the company's books of account must determine upon removal of the director from office. The right not being a statutory right, the court is left with a residue of discretion as to whether or not to order an inspection." The only issue which might be controversial is the observation of Slade J in Conway v Petronious Clothing Co Ltd , that the court has a discretion whether or not to allow inspection. In Berlei Hestia (NZ) Ltd v Fernyhough [1980] 2 NZLR 150 , Mahon J rejected the proposition that the court had a discretion whether or not to permit a director to have access to the books of the Company.


case_text: J also relied upon, and adopted, the observations of North J in Burn v London and South Wales Coal Co (1890) 7 TLR 118 at 119, where North J accepted that a director, in order that he might properly perform his duties, had, from the nature of the case, a right to see all the documents under the control of the Company. Edman v Ross (supra) was also followed by De Jersey J, as he then was, in Kriewaldt v Independent Direction Ltd (1996) 14 ACLC 73 , where at 75, his Honour said: "A director obviously has a right of access to company documents to facilitate the performance of his or her duty, and that carries with it a right to make copies. See Edman v Ross and McGee v Sanders [1991] FCA 554 ; (1991) 32 FCR 397 , 405".


case_text: observations of Street CJ in Eq have been followed in subsequent cases. See for example Molomby v Whitehead [1985] FCA 421 ; (1985) 7 FCR 541 at 550, where Beaumont J said: "The right or power of a director of a company or a corporation to inspect corporate material in aid of the proper execution of his fiduciary obligations to advance the interests of the Company or corporation is well recognised." Beaumont J cited a number of earlier cases in support of this proposition, to which I do not need to refer at this point of time.


case_text: Boulos v Carter; Re TARBS World TV Australia Pty Ltd (2005) 220 ALR 572 , Barrett J said at 582: It is unnecessary to go into any detailed analysis of the general law position. The right of a director to inspect company documents, and, if necessary, to take copies of them has long been recognised as one of the rights that general law affords a director for the purpose of enabling him or her to perform the functions and discharge the duties of the office of director. The classic statement of this right appears in a judgment of Street CJ in Eq Edman v Ross ."


case_text: only issue which might be controversial is the observation of Slade J in Conway v Petronious Clothing Co Ltd , that the court has a discretion whether or not to allow inspection. In Berlei Hestia (NZ) Ltd v Fernyhough [1980] 2 NZLR 150 , Mahon J rejected the proposition that the court had a discretion whether or not to permit a director to have access to the books of the Company. In Berlei Hestia (NZ) Ltd v Fernyhough (supra), Mahon J at 163 disagreed with the conclusion of Slade J that there was a discretion as to whether or not a court would, acting under common law principles, permit a director to have access to corporate records and accounts. Mahon J said at 163: "The correct construction of the authorities relied upon by Slade J seems to me to be that the right of inspection is unqualified, but that where it is proved that a director is acting or is about to act in breach of his fiduciary duty to the company, and intends to aid that process by inspecting the books, then his right to inspection disappears." (see Company Directors: Principles of Law and Corporate Governance, Austin, Ford and Ramsay (2005), 193, [4.13]). Mahon J also said in Berlei Hestia (NZ) Ltd v Fernyhough (supra): "In other words, in order to restrain a director from exercising his right of access to corporate information, it must be proved, either from his words or conduct, that there in fact exists an intention on the part of the director to use the information not for the benefit of the company and the shareholders but for the benefit, wholly or in part, of a competitor." I am satisfied, consistently with common law principles, that Mr Campbell should be entitled to have access to, and should be allowed to inspect, all the records of the Company held by Computershare and also the records of the Company that relate to the share issues. I should add that not only should Mr Campbell have that right of access and inspection, also each and every director of the Company should have it. I do not consider on the material before me that it can be said that there is an intention on the part of Mr Campbell to use the information, not for the benefit of the Company and the shareholders but for the benefit wholly or in part of a competitor, adopting the words of Mahon J. Further, I am not satisfied that by having access to those records and inspecting them Mr Campbell is acting, or is about to act, in breach of his fiduciary duty to the Company and intends to aid that process by inspecting the books.


case_text: v Ross (supra) was also followed by De Jersey J, as he then was, in Kriewaldt v Independent Direction Ltd (1996) 14 ACLC 73 , where at 75, his Honour said: "A director obviously has a right of access to company documents to facilitate the performance of his or her duty, and that carries with it a right to make copies. See Edman v Ross and McGee v Sanders [1991] FCA 554 ; (1991) 32 FCR 397 , 405".


case_text: is important to emphasise that on this application, having regard to the fact that no parties have been cross-examined, and that the matter has been brought on as a matter of urgency, that I form no view as to the merits or demerits of the matters raised by Mr Campbell or Mr Pursell. Nevertheless, I am satisfied, borrowing from the learning on s 247A of the Act, that there is a case for investigation: Intercapital Holdings Ltd v MEH Ltd (1988) 13 ACLR 595 ; Knightswood Nominees Pty Ltd v Sherwin Pastoral Company Ltd (1989) 15 ACLR 151.


case_title: Knightswood Nominees Pty Ltd v Sherwin Pastoral Company Ltd (1989) 15 ACLR 151


case_text: principles in relation to the proper interpretation of s 247A have been well established and are not in dispute. Mr Campbell must satisfy me that he is entitled to inspect the books because the information sought relates to matters that he as a shareholder ought to be informed of by the Company: Czerwinski v Syrena Royal Pty Ltd (No 1) [2000] VSC 125 ; (2000) 34 ACSR 245 at 248. It is also clear that provided Mr Campbell's primary or dominant purpose for which the inspection is sought is a proper purpose, a subsidiary purpose for some other benefit is not relevant: Unity APA Ltd v Humes Ltd (No 2) [1987] VR 474.


case_title: Unity APA Ltd v Humes Ltd (No 2) [1987] VR 474


case_text: Acehill Investments Pty Ltd v Incitec Ltd [2002] SASC 344 , Debelle J stated a number of propositions which he extracted from the authorities. His Honour stated at par [29]: "1. The requirement that the applicant is acting in good faith and that the inspection is to be made for a proper purpose expresses a composite notion and the court will determine whether each has been demonstrated by applying an objective test. The onus is on the applicant to demonstrate that he is acting in good faith and that the inspection is for a proper purpose. The section operates where the applicant seeks to protect some specific or personal right by the making of the order. Examples are where a shareholder contemplates proceedings under s 233 of the Corporations Act (the statutory successor of s 320 of the Companies Code)... or where a shareholder reasonably takes the view that a transaction could adversely affect his investment and he seeks to investigate the transaction for the purpose of determining what action he should take ... or where a shareholder seeks to ascertain facts for the purpose of considering a takeover offer... If the applicant's primary or dominant purpose is a proper purpose, it is not to the point that an inspection may be of benefit to the applicant for some other purpose... The rights provided by s 247A should not be regarded as affecting the basic rule of company law that a shareholder should not ordinarily have recourse to the courts to challenge a managerial decision made by or with the approval of the directors. Since every shareholder has a right to apply under the section for an inspection order, it is no answer to an application that, if an order is made, the applicant may acquire information not available to other shareholders and thereby be in a more advantageous position than those shareholders. Applicants do not necessarily lack a proper purpose merely because (a) they are hostile to other directors; or (b) they will, after inspection, have more information than other members. The procedure under s 247A is not intended to be a process as wide-ranging as the process of discovery of documents so that, as a general rule, inspection will be confined to, say, the results of decisions of directors rather than all the documents such as board papers leading to decisions ... I emphasise that this is a general rule. There may be occasions where it is proper to admit inspection of board papers ... Even where an applicant is acting bona fide and has shown a proper purpose, the court has a discretion whether to order inspection. " [citations omitted] For present purposes I am prepared to accept that the lobbying of proxy holders is a significant purpose of Mr Campbell in seeking access to the Company's books. In other words, I am prepared to accept that there is a doubt as to whether Mr Campbell's primary or dominant purpose is related to the issues arising out of the allotment of shares. I do not forget that the power given under s 247A must depend upon the application by "a member" of the Company. Can it be a proper purpose for a member of the Company to seek access for the purpose of lobbying proxy holders to vote in a particular way to ensure that that member is elected, to or retained on, the board of directors of the Company? I consider that is a proper purpose and I compare, for example, proposition 3 extracted by Debelle J in Acehill Investments Pty Ltd v Incitec Ltd (supra), which I repeat in this context: "The section operates where the applicant seeks to protect some specific or personal right by the making of the order. ... "or where a shareholder reasonably takes the view that a transaction could adversely affect his investment and he seeks to investigate the transaction for the purpose of determining what action he should take." It seems to me that it can be a proper purpose for a member of the Company to seek access to proxies, even though he also has another role as a director of the Company, to determine whether he should take any, and if so what, action in support of his aim to remain on the board of directors. Again, borrowing from the doctrine in relation to the common law principles, that purpose is not to abuse the confidence reposed in him as a director or materially to injure the Company. Although Mr Campbell posted messages on the Hot Copper website, to which Mr Pursell has referred and which I have summarised in these reasons, those matters again related to the issues of the composition of the board of directors.


case_text: If only out of an abundance of caution, I have also expressly considered the pre-hearing steps that were taken by the Tribunal. The following passage from the joint judgment of Sundberg and Hely JJ in VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 ; (2004) 136 FCR 407 , with which Gyles J relevantly agreed, is apt. I am reading from paras 15 and 16: The Tribunal invited the appellants to appear to give evidence and present arguments. The invitation and the notice of the time and place of the hearing were embodied in the one document, as ss 425 and 425A contemplate. . . . They were sent to the appellants' address for service at their last residential address appearing on their application for review. By force of s 441C(4) they are taken to have received the document seven working days after the date it bears. As the primary judge said, the fact that they did not become aware of the invitation does not displace the effect of s 441C. . . . s 426A empowered the Tribunal to decide the review in the absence of the appellants and without taking any further action to allow or enable them to appear before it. 15 Their Honours continued, speaking of s 420 of the Migration Act : That section requires the Tribunal to pursue the objectives of providing a fair and just mechanism of review, and to act according to substantial justice and the merits of the case. Part 7 of the Act (in which ss 420 , 425A , 426A , 441A and 441C appear) must be read as a whole. Sections 425A , 426A , 441A and 441C are specific provisions qualifying the general provisions of s 420. The scheme they involve expressly contemplates that, in particular circumstances, an applicant will not attend a hearing, including cases involving no fault of the applicant. Notwithstanding that, the Tribunal is authorised to proceed to decide the review in the applicant's absence. 16 That is what occurred in this instance. I am satisfied that the invitation to comment letter sent by the Tribunal met the requirements of s 424A of the Migration Act . I am also satisfied that the Tribunal sent, in good time, and in the form and manner required by the Migration Act , an invitation to attend a hearing. 17 As to the merits of the appeal itself, they amount, in essence, to a contention that the appeal should be allowed because the Federal Magistrate failed to find jurisdictional error on one or more of the grounds of appeal specified. 18 In respect of the first ground it is abundantly clear from the reasons of the Tribunal that the Tribunal expressly considered the risk which the Appellant might face were she to be returned to China. It just so happens that the Tribunal was not satisfied that such a risk was presented. The Tribunal was not obliged to act just upon the statement which the Appellant had annexed to her review application, or to accept it uncritically. The same applies to the appeal ground which alleges that the Tribunal failed to accept that the Appellant is a Falun Gong practitioner.


case_text: recently published my reasons in this matter and directed that the parties bring in draft Minutes of Orders: Australian Medic-Care Company Ltd v Hamilton Pharmaceutical Pty Limited [2009] FCA 1220. While I gave them the opportunity to put on submissions on costs, I indicated my then present inclination was to make no order as to costs. That view reflected my appreciation of the balance of wins and losses on disputed issues and claims made in the proceedings viewed as a whole. I need not reiterate the nature of the claims and cross-claims in any detail other than to say that, a discrete cross-claim for breach of confidence apart, collectively the various claims fell broadly into two classes. One large class related to claims for alleged breaches, and for wrongful repudiation, of a distribution agreement. These claims were surrounded by the predictable, satellite Trade Practices Act claims. The other class of claims related to intellectual property. The principal claims here related to trade marks owned by AMC and to breach of AMC's copyright although the latter both was surrounded by satellite claims such as passing off and was collaterally attacked initially in a Trade Practices Act claim (later abandoned by Hamilton). My findings on AMC's claims resulted in my dismissal of all of its intellectual property related claims. On the contract claims I found Hamilton to be in breach of the Distribution Agreement in several respects but only nominal damages were awarded.


case_text: narrative rather illustrates that while there were in substance two major areas of dispute between the parties, the parties' real successes were essentially defensive ones. It is appropriate to say, in my view, that as a matter of substance and reality, Hamilton won the claim. It is equally appropriate to say that the discrete breach of confidence claim apart, AMC won the cross-claim: cf Timms v Clift [1997] QCA 61 ; [1998] 2 Qd R 100 at 107. This outcome needless to say helped inform the inclination I foreshadowed as to an appropriate costs order.


case_text: parties have now put on extensive submissions in relation to costs. It emerges that Hamilton on 29 February 2008 made an offer of compromise of the entire action which it says was in accordance with the principle stated in Calderbank v Calderbank [1975] 3 All ER 333. That offer was rejected by AMC on 7 March and a counter-offer made. On 18 March 2008 Hamilton made an offer of compromise of AMC's claim in compliance with O 23 of the Federal Court Rules . It was not accepted. A subsequent O 23 offer was made on 17 June 2008. It likewise was not accepted. I am now asked to consider the appropriate incidence of costs in light of the offers to which I have referred. It is necessary to consider them seriatim. Before so doing I should refer briefly to the breach of confidence cross-claim. Hamilton was entirely successful in its claim against AMC in establishing liability. An account of profits has been ordered. I dismissed a like claim made against Dr Keung. Hamilton's claim was a small, self contained and, in my view, routine breach of confidence matter. As will be seen from my reasons the liability question could be dealt with shortly. I am satisfied that, in relation to it, it should be ordered that AMC should pay Hamilton's costs of the claim on a party and party basis and that Hamilton should pay Dr Keung's costs in relation to its unsuccessful claim against him. 1. The Calderbank, "Entire Action Offer" of 29 February 2008 This offer was made by Hamilton to resolve "all issues in dispute" with AMC. The offer made was that, in consideration for the termination of the Distribution Agreement and in return for AMC (a) discontinuing its claim in the action and (b) providing an all-encompassing deed of release ("on terms to be agreed") in respect of any past or future claim whatsoever against Hamilton, Hamilton would take all steps necessary (and available to it) to affirm ownership of the Fuyunhon and Tuotoning marks by your client; release your client from its obligations pursuant to the restrictive covenant imposed upon your client by Clause 41.1.7 of the Distribution Agreement (thereby allowing your client to lawfully sell its competing "Fuyunhon" products in Hong Kong); discontinue its cross-claim in the Action (including the proposed amendments to our client's cross-claim as advised in our 11 February 2008 letter); forgive and write off the sum of $35,091.12 owed by your client to our client and subject of invoice no EXP 1768; provide your client with any reasonable assistance that it requires to prosecute its litigation against Forward Company currently on foot in Hong Kong; grant your client a limited licence to sell its inventory of Hamilton products in Hong Kong; provide your client with an all-encompassing release (on terms to be agreed in a Deed) in respect of any present or future claim against your client; pay your client the sum of $250,000 AUD (inclusive of any GST payable) which amount is inclusive of any claim for costs and interest by your client; and As is well accepted, the non-acceptance of a Calderbank offer can be a relevant matter for consideration on the question whether the discretion to order costs should be exercised on an indemnity basis rather than in accordance with the Court's usual practice of ordering party and party costs, if its non-acceptance is followed by a result to the offeree which is less favourable than the offer made: see MGICA (1992) Pty Ltd v Kenny & Good Pty Ltd (1996) 70 FCR 236 ; on the primacy of the ordinary practice see Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 ; and see generally on Calderbank offers, Dal Pont, Law of Costs , [13.46]-[13.69] (2 nd ed, 2009). The significance for costs purposes to be attributed to a rejected Calderbank offer falls, increasingly, for determination by reference to criteria of reasonableness: Was the offer a reasonable one in the circumstances? Was its rejection unreasonable when viewed in light of the circumstances existing at the time of its rejection? See eg University of Western Australia v Gray (No 21) [2008] FCA 1056 ; (2008) 249 ALR 360 at 361; Dal Pont at [13.58]. In making that determination, the circumstances of the litigation and the parties' understanding of the strengths and weaknesses of their respective cases can be relevant considerations: see GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 688 ; (2003) 201 ALR 55 at [34] . In its Calderbank letter Hamilton indicated that, if AMC did not accept its offer, Hamilton would deliver a formal offer of compromise in accordance with the Federal Court Rules . It went on to indicate that the offer would be for a monetary sum only.


case_text: is well accepted, the non-acceptance of a Calderbank offer can be a relevant matter for consideration on the question whether the discretion to order costs should be exercised on an indemnity basis rather than in accordance with the Court's usual practice of ordering party and party costs, if its non-acceptance is followed by a result to the offeree which is less favourable than the offer made: see MGICA (1992) Pty Ltd v Kenny & Good Pty Ltd (1996) 70 FCR 236 ; on the primacy of the ordinary practice see Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 ; and see generally on Calderbank offers, Dal Pont, Law of Costs , [13.46]-[13.69] (2 nd ed, 2009).


case_title: Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151


case_text: significance for costs purposes to be attributed to a rejected Calderbank offer falls, increasingly, for determination by reference to criteria of reasonableness: Was the offer a reasonable one in the circumstances? Was its rejection unreasonable when viewed in light of the circumstances existing at the time of its rejection? See eg University of Western Australia v Gray (No 21) [2008] FCA 1056 ; (2008) 249 ALR 360 at 361; Dal Pont at [13.58]. In making that determination, the circumstances of the litigation and the parties' understanding of the strengths and weaknesses of their respective cases can be relevant considerations: see GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 688 ; (2003) 201 ALR 55 at [34] .


case_title: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 688 ; (2003) 201 ALR 55


case_text: Mansfield J indicated in Smith v 600 Machinery Australia Pty Ltd [1996] FCA 1029 , O 23 of the Federal Court Rules provides a structure which encourages the parties throughout a proceeding to offer and to consider a fair and reasonable compromise of their proceeding while also providing a party with the means of protecting its position in relation to costs against an opponent with unrealistic expectations of the proceeding's likely outcome. The Rules prescribes both the formalities for an offer to be characterised as one made for O 23 purposes and the costs consequences of unaccepted offers. Relevantly for present purposes O 23 r 11(5) provides: (5) If: (a) an offer is made by a respondent and not accepted by the applicant; and (b) the applicant obtains judgment on the claim to which the offer relates not more favourable than the terms of the offer; then, unless the Court otherwise orders: (c) the applicant is entitled to an order that the respondent pay the applicant's costs in respect of the claim incurred up to 11 am on the day after the day when the offer was made, taxed on a party and party basis; and (d) the respondent is entitled to an order that the applicant pay the respondent's costs in respect of the claim incurred after that time, taxed on an indemnity basis.


case_text: is created a rebuttable presumption of indemnity costs, it then being incumbent on the applicant to show reason why the Court should "otherwise order". As Hely J indicated in Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) (2004) 212 ALR 281 at [17]: ... the prima facie position should only be departed from for proper reasons which, in general, only arise in an exceptional case. See also Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd [2009] FCAFC 40. While emphasising that it is impossible to state exhaustively the circumstances in which a discretion to the contrary might be exercised, it is established that the fact that an applicant acted reasonably in rejecting an offer of compromise is not itself a sufficient reason to displace the operation of the rule: Futuretronics at [11]. As Dal Pont has indicated (at [13.17]): ... a party who rejects an offer cannot reasonably compain if, due to [the] risks and vicissitudes [of litigation], his or her judgment proves unsound.


case_title: Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd [2009] FCAFC 40


case_text: would note in passing AMC made a further counter-offer on 30 June 2000 in which (inter alia) it reduced the monetary sum it required to be paid to $1,250,000. See also Sunlec International Ltd v Carroll Australasia Pty Ltd [2001] WASC 354 at [14] . At no stage in this matter prior to the publication of my reasons in the principal proceedings had AMC sought declaratory relief in relation to its proprietorship and beneficial ownership of the Fuyunhon and Tuotoning marks or to its ownership of the copyright in the Hong Kong packaging and the English language product indications for Urederm. While fact findings to the above effect in relation to the trade marks are implicit in my reasons and are explicit in relation to copyright ownership, I am not prepared now to make declarations to the above effect as AMC now seeks: on the potential significance of injunctions and declarations for the purposes of the O 23 r 11(5) comparison see Sunlec International at [16]. I will later return to this. The second matter to be noted arises from the fact that the O 23 offer related only to AMC's claim and not to Hamilton's cross-claim. This split could well be perceived as a tactical manoeuvre given that the cross-claim asserted Hamilton's entitlement to AMC's trade marks. A decision by AMC so to agree to split the respective proceedings, in my view, was not to be expected. It was, in the context of the litigation, quite improbable.


case_text: are two additional matters that need to be noted. First, the comparison which O 23 r 11(5) requires is between the "judgment on the claim to which the offer relates" and "the terms of the offer". If the "judgment" is less favourable than the offer, the presumption arises. As was observed by the Full Court in Digga Australia Pty Ltd v Norm Engineering Pty Ltd (No 2) [2008] FCAFC 76 at [20] : The reference in the rule to "judgment" directs attention to "a judgment, decree or order ...": see s 46 of the Acts Interpretation Act 1901 (Cth); s 13 of the Legislative Instruments Act 2003 (Cth); s 4 ("judgment") of the Federal Court of Australia Act 1976 (Cth). We do not think that the comparison between the judgment obtained and the terms of the offer to which O 23 r 11(5) refers embraces a reference to findings made in the reasons for judgment.


case_text: principle to be applied to the taxation of costs in such cases was stated by Dixon J in Smith v Madden [1946] HCA 19 ; (1946) 73 CLR 129 at 133: In such a case the taxation of the costs of the action and of the counterclaim is governed by the principle that the party receiving the costs of the claim should recover the general costs and whatever was reasonably incurred in bringing and maintaining or defending the action, as the case may be, considered as if there had been no counterclaim, and that the party receiving the costs of the counterclaim should recover the further or increased costs reasonably incurred in bringing and maintaining or defending the counterclaim. Nonetheless, his Honour acknowledged that where the successful (or unsuccessful) party on the claim or the counterclaim was not successful (or unsuccessful) on all issues, it may be appropriate to reflect this in any cost orders made by, for example, costs according to success or failure on costs issues in the claim or counterclaim (but not as between them: at 134-136) or by making a percentage or apportionment order in relation to the costs of the claim or counterclaim: at 133; and see Dal Pont [8.4]. Though they could be said, if only for reasons of their timing, to raise slightly different issues, I intend to treat the two O 23 offers together the more so as the change in the offer amount made is not material in the view I take of the matter.


case_text: relief sought by AMC in its Further Amended Statement Claim sought declarations and orders in relation to the terms and effect of particular contractual provisions, rectification and damages for breach of contract, damages and injunctive relief at law and/or under the TP Act for, variously, misleading or deceptive conduct, passing off, copyright infringement and conversion as well as other ancillary relief. In light of my conclusions, it cannot be doubted that the judgment on AMC's claim will be less favourable to it than either of the offers made. In relation to the contractual claims for damages for breach of contract arising out of the parallel importation claim and for wrongful repudiation, AMC was claiming substantial damages. In relation to the parallel importation claim, only nominal damages were awarded. Given the apparent object of the claim made was to secure substantial damages and was not to establish a legal right irrespective of the monetary relief awarded, I do not consider that AMC could properly be regarded as having been successful on this issue for costs purposes. As was said in the Full Court in Nexus Minerals NL v Brutus Constructions Pty Ltd [1997] FCA 926 at 11-12: An award of nominal damages ought not today be regarded as a "peg on which to hang costs": cf Beaumont v Greathead [1846] EngR 257 ; (1846) 2 CB 494 at 499; see McGregor on Damages , para404-para405, Sweet & Maxwell, London, (1988, 15 th ed); see also Burrows, Remedies for Tort and Breach of Contract , 269-270, Butterworths, London (2 nd ed 1994). See also Mid-City Skin Cancer & Laser Centre v Zahedi-Anarak [2006] NSWSC 1149 at [48] - [52] ; Dal Pont, at [8.35].


case_title: Mid-City Skin Cancer & Laser Centre v Zahedi-Anarak [2006] NSWSC 1149


case_text: A different approach was that of Emmett J in Australian Competition & Consumer Commission v Universal Sports Challenge Ltd [2002] FCA 1276. His Honour there set forth as follows his understanding as to the effect of s 51A(2): [46] Another question concerning the effect of s51A(2) is whether the provision does no more than require a corporation to go into evidence. That is to say, it does not ultimately reverse the onus but simply provides that the deeming takes effect unless the corporation adduces some evidence to the contrary. Once such evidence is adduced, it is for the Court to make a judgment, on the balance of probabilities, having regard to all the evidence, as to whether the corporation had reasonable grounds for making the representation. If an applicant elects to adduce no evidence as to that question, then the only evidence before the Court would be that adduced by the corporation. Whether that is adequate to establish that the corporation had reasonable grounds for making the representations is a matter for the Court. However, once the corporation has adduced some evidence, there is no deeming arising from s51A(2). 98 More recently, in McGrath v Australian Naturalcare Products Pty Ltd [2008] FCAFC 2 , 165 FCR 230 the Full Court revisited the construction of s 51A(2). Emmett J, one of the members of the Full Court, there observed: [44] Under s 51A(1) of the Trade Practices Act , a representation is to be taken to be misleading if it is a representation with respect to any future matter and the maker of the representation does not have reasonable grounds for making the representation. Under s 51A(2) , the maker of the representation with respect to any future matter is to be deemed not to have had reasonable grounds for making the representation unless it adduces evidence to the contrary. However, if evidence is adduced by a representor to the effect that the representor had reasonable grounds for making the representation, the deeming provision will not operate. Where the representor adduces such evidence, it is then a matter for the Court to determine, on the balance of probabilities in the ordinary way, whether or not the representor had reasonable grounds for making the representation. This is understood to be the same approach that His Honour had previously expressed. In McGrath Allsop J also referred to the views previously expressed by Emmett J in Universal Sports and continued: [192] If evidence is adduced by the representor that is said to be evidence to the contrary, it will be for the Court to determine whether it is to the contrary in the sense just discussed. If it is, the deeming provision will cease to operate. That was the view of Emmett J, as understood by Keane JA [Downey v Carlson Hotels Asia Pacific Pty Ltd [2005] QCA 199]. That is my view. That was not, however, an expression of the view that the legal or persuasive onus has been changed by s 51A(2) , as some of the judgments in the "trend of established authority" referred to by Keane JA have stated. For instance, if evidence "to the contrary" is adduced by the representor, and if the representee itself adduces evidence tending to the lack of reasonable grounds, the matter might be equally poised. In such a case, there has been evidence "to the contrary" adduced by the representee, thereby eliminating the operation of the deeming provision, and, on the totality of the evidence, the proof of the reasonableness (or lack thereof) of the grounds is evenly balanced. Section 51A(2) does not, in my view, mean that in those circumstances the representor has not met an onus. The section does not cast the legal or persuasive onus, in such a case, on the representor. Its terms do not say so. The enactment history makes clear that the terms were deliberately chosen not to say so. Keane JA, despite his reference to the "trend of established [first instance] authority", does not say so. In my respectful view, to the extent that decisions such as IMB Group (1999) ATPR 41-704 ; Blacker [2000] FCA 681 ; Kaye [2004] FCA 1363 ; Lewarne [2007] FCA 1136 and Emerald Ocean [2006] ATPR 42-096 say, or may be taken as saying, that the legal or persuasive onus of proof is shifted to the representor by s 51A(2) , they are wrong. None examined the enactment history of s 51A. If it be thought, contrary to my reading of Keane JA's reasons, that his Honour's reference to Kaye [2004] FCA 1363 as "established authority" was a conclusion that s 51A(2) effected a reversal of the legal and persuasive onus of proof, I would be driven to the respectful view that his Honour was plainly wrong for the reasons that I have given. Perhaps not surprisingly, Emmett J also agreed with Allsop J as to the operation of s 51A(2): [2008] FCA 2 at [6] , 165 FCR at 233 4. The third member of the Full Court, Stone J, considered that the issues thrown up by s 51A(2) were best left to be resolved by a Full Court where there had been full argument and where the outcome depended on the view taken of the section: [2008] FCAFC 2 at [76] , 165 FCR at 247 8.


case_text: Reliance was placed upon the information communicated by Mr Wieland to Mr Mellor and thereafter communicated to the Applicants. Mr Mellor, it may be accepted, was for these purposes but a " convenient medium " through whom the Respondents were communicating their representations: cf Barton v Croner Trading Pty Ltd [1984] FCA 195 ; (1984) 3 FCR 95 at 107 per Bowen CJ, Beaumont and Wilcox JJ; Downey v Carlson Hotels Asia Pacific Pty Ltd [2005] QCA 199 at [46] per Keane JA (Williams JA and Atkinson J agreeing).


case_text: For a term to be implied into a contract, it is not sufficient that the implication of such a term would be reasonable in all of the circumstances. The requirements to be satisfied have conveniently been summarised for present purposes by the Privy Council in BP Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings [1977] HCA 40 ; (1977) 180 CLR 266. The Privy Council there concluded at 283: ... for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that "it goes without saying"; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract. A term that the SLP 1100 would be " fit for purpose ", it is considered, satisfies these requirements. See also: Codelfa Construction Pty Limited v State Rail Authority of NSW [1982] HCA 24 ; (1981) 149 CLR 337 at 347 per Mason J.


case_text: There has been some debate as to whether " knowledge of the essential elements of the contravention " requires knowledge that the conduct is misleading or deceptive: see Medical Benefits Fund of Australia Ltd v Cassidy [2003] FCAFC 289 at [80] [88], 135 FCR 1 at 29 31 per Stone J; Cairnsmore Holdings Pty Ltd v Bearsden Holdings Pty Ltd [2007] FCA 1822 at [133] per Jacobson J.


case_title: Campbell v Backoffice Investments Pty Ltd [2008] NSWCA 95 , 66 ACSR 359

case_text: It has not been suggested that the Applicants were " careless " in relying upon any of the representations of the Respondents. Even carelessness or negligence on the part of an applicant, it may be noted, will not deny relief -- provided the carelessness has not been such as to destroy the causal connection between the contravening conduct and the loss or damage suffered: Henville v Walker [2001] HCA 52 at [13] , [2001] HCA 52 ; 206 CLR 459 at 468 9. Gleeson CJ there observed: [13] It will commonly be the case that a person who is induced by a misleading or deceptive representation to undertake a course of action will have acted carelessly, or will have been otherwise at fault, in responding to the inducement. The purpose of the legislation is not restricted to the protection of the careful or the astute. Negligence on the part of the victim of a contravention is not a bar to an action under s 82 unless the conduct of the victim is such as to destroy the causal connection between contravention and loss or damage. ... [14] For there to be the necessary causal relationship between a contravention of s 52, and loss or damage, so as to satisfy the requirements of s 82(1), it is not essential that the contravention be the sole cause of the loss or damage. ... The present case is not a case of carelessness or negligence. In the present proceeding, the Applicants acted at all material times prudently. They retained the services of an experienced person (Mr Mellor), made their own inquiries, and carefully considered the options available. The present case is one in which representations were made by Mr Wieland for the very purpose of inducing or encouraging the purchase of his machine. Not only is there an inference available that those statements were instrumental in the execution of the contracts (cf Gould v Vaggelas [1985] HCA 85 ; (1985) 157 CLR 215 at 236 per Wilson J; Campbell v Backoffice Investments Pty Ltd [2008] NSWCA 95 at [41] , [2008] NSWCA 95 ; 66 ACSR 359 at 370), the fact is that those statements have been proven to have played a large part in the decision to acquire the SLP 1100.


case_text: Conduct is " likely to mislead or deceive " if there is a " real or not remote chance or possibility regardless of whether it is less or more than fifty per cent ": Global Sportsman Pty Ltd v Mirror Newspapers Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 87 per Bowen CJ, Lockhart and Fitzgerald JJ (applying Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees' Union (1979) 42 FLR 331 at 346 per Deane J; Sheen v Fields Pty Ltd (1984) 58 ALJR 93) ; Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 7) [2008] FCA 1364 at [97] . A corporation's state of mind is immaterial in making out a case of misleading or deceptive conduct. In Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 88 the Full Court relevantly observed: If a corporation is alleged to have contravened s 52(1) by making a statement of past or present fact, the corporation's state of mind is immaterial unless the statement involved the state of the corporation's mind. Whether or not s 52(1) is contravened does not depend upon the corporation's intention or its belief concerning the accuracy of such statement, but upon whether the statement in fact contains or conveys a meaning which is false; that is to say whether the statement contains or conveys a misrepresentation. Most commonly, such a statement will contain or convey a false meaning if what is stated concerning the past or present fact is not accurate; but a statement which is literally true may contain or convey a meaning which is false. See also: Construction, Forestry, Mining and Energy Union v Hadgkiss [2007] FCAFC 197 at [79] [83], [2007] FCAFC 197 ; 248 ALR 169 at 182 3 per Buchanan J. The liability created by s 52 , it must also be recalled, was not " designed for the benefit of persons who fail, in the circumstances of the case, to take reasonable care of their own interests ": Elders Trustee and Executor Co Ltd v E G Reeves Pty Ltd [1987] FCA 332 ; (1987) 78 ALR 193 at 241 per Gummow J. See also: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1981) 149 CLR 191 at 199 per Gibbs CJ ; Rawley Pty Ltd v Bell (No 2) [2007] FCA 583 at [212] , 61 ACSR 648 at 701 per Finn J; Webster v Havyn Pty Ltd [2004] NSWSC 227 at [73] per Palmer J. 94 Section 51A is a section which facilitates proof. But it is not a section which provides for an independent cause of action separate from s 52 or other sections of Part V of the 1974 Act: Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 7) [2008] FCA 1364 at [96] per Collier J. 95 There has been a division of views as to the operation of s 51A(2).


case_title: Codelfa Construction Pty Limited v State Rail Authority of NSW [1982] HCA 24 ; (1981) 149 CLR 337


case_text: The inquiry required by s 82 is not an inquiry into cause and effect in mathematical or philosophical terms, but is rather an inquiry into that conduct which influences action taken: Como Investments Pty Ltd v Yenald Nominees Pty Ltd (1997) ATPR 41-550. Burchett, Ryan and Nicholson JJ there concluded: The law does not consider cause and effect in mathematical or in philosophical terms. The law looks at what influences the actions of the parties. Acknowledging that people are often swayed by several considerations, influencing them to varying extents, the law attributes causality to a single one of those considerations, provided it had some substantial rather than negligible effect. As Brennan J said in San Sebastian Pty Ltd v Minister administering the Environmental Planning and Assessment Act 1979 [1986] HCA 68 ; (1986) 162 CLR 340 at 366: "The representation must be a real inducement or one of the real inducements to engage in the conduct which occasions the loss" Where a representation is relevant to the decision in question, and in its nature persuasive to induce the making of that decision, it accords with legal notions of causation to hold that it has a causative effect. And where a respondent, who may be taken to know his own business, has thought it was in his interests to misrepresent the situation in a particular respect, the Court may infer that the misrepresentation was persuasive. These inferences arise from the making of the respondent doing the thing it was calculated to induce him to do. All this is a matter of common sense. It has also been stated in the authorities. In Gould v Vaggelas [1985] HCA 85 ; (1985) 157 CLR 215 at 236 Wilson J said: "If a material representation is made which is calculated to induce the representee to enter into a contract and that person in fact enters into the contract there arises a fair inference of fact that he was induced to do so by the representation." His Honour went on to say that the "inference may be rebutted", but this is to imply that in the absence of rebuttal the conclusion should stand. ...


case_title: Construction, Forestry, Mining and Energy Union v Hadgkiss [2007] FCAFC 197 , 248 ALR 169

case_text: Conduct is " likely to mislead or deceive " if there is a " real or not remote chance or possibility regardless of whether it is less or more than fifty per cent ": Global Sportsman Pty Ltd v Mirror Newspapers Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 87 per Bowen CJ, Lockhart and Fitzgerald JJ (applying Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees' Union (1979) 42 FLR 331 at 346 per Deane J; Sheen v Fields Pty Ltd (1984) 58 ALJR 93) ; Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 7) [2008] FCA 1364 at [97] . A corporation's state of mind is immaterial in making out a case of misleading or deceptive conduct. In Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 88 the Full Court relevantly observed: If a corporation is alleged to have contravened s 52(1) by making a statement of past or present fact, the corporation's state of mind is immaterial unless the statement involved the state of the corporation's mind. Whether or not s 52(1) is contravened does not depend upon the corporation's intention or its belief concerning the accuracy of such statement, but upon whether the statement in fact contains or conveys a meaning which is false; that is to say whether the statement contains or conveys a misrepresentation. Most commonly, such a statement will contain or convey a false meaning if what is stated concerning the past or present fact is not accurate; but a statement which is literally true may contain or convey a meaning which is false. See also: Construction, Forestry, Mining and Energy Union v Hadgkiss [2007] FCAFC 197 at [79] [83], [2007] FCAFC 197 ; 248 ALR 169 at 182 3 per Buchanan J. The liability created by s 52 , it must also be recalled, was not " designed for the benefit of persons who fail, in the circumstances of the case, to take reasonable care of their own interests ": Elders Trustee and Executor Co Ltd v E G Reeves Pty Ltd [1987] FCA 332 ; (1987) 78 ALR 193 at 241 per Gummow J. See also: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1981) 149 CLR 191 at 199 per Gibbs CJ ; Rawley Pty Ltd v Bell (No 2) [2007] FCA 583 at [212] , 61 ACSR 648 at 701 per Finn J; Webster v Havyn Pty Ltd [2004] NSWSC 227 at [73] per Palmer J.


case_text: More recently, in McGrath v Australian Naturalcare Products Pty Ltd [2008] FCAFC 2 , 165 FCR 230 the Full Court revisited the construction of s 51A(2). Emmett J, one of the members of the Full Court, there observed: [44] Under s 51A(1) of the Trade Practices Act , a representation is to be taken to be misleading if it is a representation with respect to any future matter and the maker of the representation does not have reasonable grounds for making the representation. Under s 51A(2) , the maker of the representation with respect to any future matter is to be deemed not to have had reasonable grounds for making the representation unless it adduces evidence to the contrary. However, if evidence is adduced by a representor to the effect that the representor had reasonable grounds for making the representation, the deeming provision will not operate. Where the representor adduces such evidence, it is then a matter for the Court to determine, on the balance of probabilities in the ordinary way, whether or not the representor had reasonable grounds for making the representation. This is understood to be the same approach that His Honour had previously expressed. In McGrath Allsop J also referred to the views previously expressed by Emmett J in Universal Sports and continued: [192] If evidence is adduced by the representor that is said to be evidence to the contrary, it will be for the Court to determine whether it is to the contrary in the sense just discussed. If it is, the deeming provision will cease to operate. That was the view of Emmett J, as understood by Keane JA [Downey v Carlson Hotels Asia Pacific Pty Ltd [2005] QCA 199]. That is my view. That was not, however, an expression of the view that the legal or persuasive onus has been changed by s 51A(2) , as some of the judgments in the "trend of established authority" referred to by Keane JA have stated. For instance, if evidence "to the contrary" is adduced by the representor, and if the representee itself adduces evidence tending to the lack of reasonable grounds, the matter might be equally poised. In such a case, there has been evidence "to the contrary" adduced by the representee, thereby eliminating the operation of the deeming provision, and, on the totality of the evidence, the proof of the reasonableness (or lack thereof) of the grounds is evenly balanced. Section 51A(2) does not, in my view, mean that in those circumstances the representor has not met an onus. The section does not cast the legal or persuasive onus, in such a case, on the representor. Its terms do not say so. The enactment history makes clear that the terms were deliberately chosen not to say so. Keane JA, despite his reference to the "trend of established [first instance] authority", does not say so. In my respectful view, to the extent that decisions such as IMB Group (1999) ATPR 41-704 ; Blacker [2000] FCA 681 ; Kaye [2004] FCA 1363 ; Lewarne [2007] FCA 1136 and Emerald Ocean [2006] ATPR 42-096 say, or may be taken as saying, that the legal or persuasive onus of proof is shifted to the representor by s 51A(2) , they are wrong. None examined the enactment history of s 51A. If it be thought, contrary to my reading of Keane JA's reasons, that his Honour's reference to Kaye [2004] FCA 1363 as "established authority" was a conclusion that s 51A(2) effected a reversal of the legal and persuasive onus of proof, I would be driven to the respectful view that his Honour was plainly wrong for the reasons that I have given. Perhaps not surprisingly, Emmett J also agreed with Allsop J as to the operation of s 51A(2): [2008] FCA 2 at [6] , 165 FCR at 233 4. The third member of the Full Court, Stone J, considered that the issues thrown up by s 51A(2) were best left to be resolved by a Full Court where there had been full argument and where the outcome depended on the view taken of the section: [2008] FCAFC 2 at [76] , 165 FCR at 247 8. 118 Reliance was placed upon the information communicated by Mr Wieland to Mr Mellor and thereafter communicated to the Applicants. Mr Mellor, it may be accepted, was for these purposes but a " convenient medium " through whom the Respondents were communicating their representations: cf Barton v Croner Trading Pty Ltd [1984] FCA 195 ; (1984) 3 FCR 95 at 107 per Bowen CJ, Beaumont and Wilcox JJ; Downey v Carlson Hotels Asia Pacific Pty Ltd [2005] QCA 199 at [46] per Keane JA (Williams JA and Atkinson J agreeing).


case_title: Elders Trustee and Executor Co Ltd v E G Reeves Pty Ltd [1987] FCA 332 ; (1987) 78 ALR 193


case_text: Section 75B provides in relevant part as follows: 75B Interpretation (1) A reference in this Part to a person involved in a contravention of a provision of Part IV, IVA, IVB, V or VC, or of section 75AU, 75AYA or 95AZN, shall be read as a reference to a person who: (a) has aided, abetted, counselled or procured the contravention; ... (c) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; ... Section 75B does not require that a person knew he was participating in a contravention of the Act; what is required is actual knowledge of the essential elements of the contravention and intentional participation in it: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at 666 70 per Mason ACJ, Wilson, Deane and Dawson JJ; Rawley Pty Ltd v Bell (No 2) [2007] FCA 583 at [40] per Finn J; Genocanna Nominees Pty Ltd v Thirsty Point Pty Ltd [2006] FCA 1268 at [267] [280]. There may be some circumstances where knowledge may be inferred from the surrounding circumstances: cf Pereira v Director of Public Prosecutions [1988] HCA 57 at [11] , [1988] HCA 57 ; 82 ALR 217 at 219 20.


case_text: Reliance upon the skill of Wieland Equipment in supplying rock crushers may not have been the only cause of the agreement being signed, but reliance was in fact placed upon the skill and judgment of Mr Wieland: cf Gibbett v Forwood Products Pty Ltd [2001] FCA 290 at [95] per Mansfield J. 133 After the conclusion of the evidence, and in particular the cross-examination of Mr Wieland, it was difficult to see how a term could not be implied to the effect that the SLP 1100 would be fit for the purpose (generally stated) of crushing rock in Indonesia. Especially is this the case where Mr Wieland regarded it as " so obvious that [it] went without saying " that " the bargain between the parties " was that he was " going to solve the problem by providing ... a brand new SLP 1100 ". It was " fundamental to that bargain " that the " machine ... was going to be able to be used for the quarry operation at Surabaya " and that " it would be able to be used effectively for that purpose ". It was to be " a top quality machine ". Such matters, Mr Wieland accepted, were " plainly obvious, plain as a pikestaff ".


case_text: Conduct is " likely to mislead or deceive " if there is a " real or not remote chance or possibility regardless of whether it is less or more than fifty per cent ": Global Sportsman Pty Ltd v Mirror Newspapers Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 87 per Bowen CJ, Lockhart and Fitzgerald JJ (applying Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees' Union (1979) 42 FLR 331 at 346 per Deane J; Sheen v Fields Pty Ltd (1984) 58 ALJR 93) ; Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 7) [2008] FCA 1364 at [97] . A corporation's state of mind is immaterial in making out a case of misleading or deceptive conduct. In Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 88 the Full Court relevantly observed: If a corporation is alleged to have contravened s 52(1) by making a statement of past or present fact, the corporation's state of mind is immaterial unless the statement involved the state of the corporation's mind. Whether or not s 52(1) is contravened does not depend upon the corporation's intention or its belief concerning the accuracy of such statement, but upon whether the statement in fact contains or conveys a meaning which is false; that is to say whether the statement contains or conveys a misrepresentation. Most commonly, such a statement will contain or convey a false meaning if what is stated concerning the past or present fact is not accurate; but a statement which is literally true may contain or convey a meaning which is false. See also: Construction, Forestry, Mining and Energy Union v Hadgkiss [2007] FCAFC 197 at [79] [83], [2007] FCAFC 197 ; 248 ALR 169 at 182 3 per Buchanan J. The liability created by s 52 , it must also be recalled, was not " designed for the benefit of persons who fail, in the circumstances of the case, to take reasonable care of their own interests ": Elders Trustee and Executor Co Ltd v E G Reeves Pty Ltd [1987] FCA 332 ; (1987) 78 ALR 193 at 241 per Gummow J. See also: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1981) 149 CLR 191 at 199 per Gibbs CJ ; Rawley Pty Ltd v Bell (No 2) [2007] FCA 583 at [212] , 61 ACSR 648 at 701 per Finn J; Webster v Havyn Pty Ltd [2004] NSWSC 227 at [73] per Palmer J. 96 One view has been that s 51A(2) casts a burden of proof upon those making a representation as to a future matter to show that there were reasonable grounds for making it: Ting v Blanche [1993] FCA 524 ; (1993) 118 ALR 543. Hill J there observed (at 552): The section is but an interpretation section; it does not of itself create a cause of action, nor define a norm of conduct. The relevant cause of action is to be found in s 82(1) of the Act by reference to the norm of conduct laid down in s 52 of the Act. What s 51A does, in a practical sense, in cases where it applies, is to cast the burden of proof upon the respondent corporation who has made a representation about a future matter to show that in making that representation it had reasonable grounds for so doing. In the language of Sheppard and Neaves JJ in Cummings v Lewis (1993) 113 ALR 285 ; ATPR (Digest) 46 103, s 51A is "designed to facilitate proof" (at ALR 294; ATPR 53,450). Representation as to future facts may, of course, constitute conduct which is misleading or deceptive or likely to mislead or deceive within s 52 of the Act, irrespective of the operation of s 51A. However, without the intervention of s 51A the burden would remain upon the applicant to show that the representation, in whatever form it took, was misleading or deceptive or likely to mislead or deceive. In the ordinary case where a representation as to future conduct or events is alleged to have been made, that means that the burden would be upon the applicant to show not merely that the conduct or event has not come to pass but also that at the time the representation was made the respondent did not believe that the conduct or event would come to pass or that there was no basis for a belief that the conduct or event would come to pass: James v ANZ Banking Group Ltd (1986) 64 ALR 347 ; Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 88; [1984] FCA 180 ; 55 ALR 25. It will be readily apparent that a representation as to future conduct or a future event will generally imply (and sometimes explicitly state) that the maker of the representation was of a particular state of mind as to the future conduct or event as at the time the representation was made. ... See also: Wright v TNT Management Pty Ltd (1989) 15 NSWLR 679 at 690 per McHugh JA; Lewarne v Momentum Productions Pty Ltd [2007] FCA 1136 at [78] [82] per Stone J.


case_text: The inquiry required by s 82 is not an inquiry into cause and effect in mathematical or philosophical terms, but is rather an inquiry into that conduct which influences action taken: Como Investments Pty Ltd v Yenald Nominees Pty Ltd (1997) ATPR 41-550. Burchett, Ryan and Nicholson JJ there concluded: The law does not consider cause and effect in mathematical or in philosophical terms. The law looks at what influences the actions of the parties. Acknowledging that people are often swayed by several considerations, influencing them to varying extents, the law attributes causality to a single one of those considerations, provided it had some substantial rather than negligible effect. As Brennan J said in San Sebastian Pty Ltd v Minister administering the Environmental Planning and Assessment Act 1979 [1986] HCA 68 ; (1986) 162 CLR 340 at 366: "The representation must be a real inducement or one of the real inducements to engage in the conduct which occasions the loss" Where a representation is relevant to the decision in question, and in its nature persuasive to induce the making of that decision, it accords with legal notions of causation to hold that it has a causative effect. And where a respondent, who may be taken to know his own business, has thought it was in his interests to misrepresent the situation in a particular respect, the Court may infer that the misrepresentation was persuasive. These inferences arise from the making of the respondent doing the thing it was calculated to induce him to do. All this is a matter of common sense. It has also been stated in the authorities. In Gould v Vaggelas [1985] HCA 85 ; (1985) 157 CLR 215 at 236 Wilson J said: "If a material representation is made which is calculated to induce the representee to enter into a contract and that person in fact enters into the contract there arises a fair inference of fact that he was induced to do so by the representation." His Honour went on to say that the "inference may be rebutted", but this is to imply that in the absence of rebuttal the conclusion should stand. ... 123 It has not been suggested that the Applicants were " careless " in relying upon any of the representations of the Respondents. Even carelessness or negligence on the part of an applicant, it may be noted, will not deny relief -- provided the carelessness has not been such as to destroy the causal connection between the contravening conduct and the loss or damage suffered: Henville v Walker [2001] HCA 52 at [13] , [2001] HCA 52 ; 206 CLR 459 at 468 9. Gleeson CJ there observed: [13] It will commonly be the case that a person who is induced by a misleading or deceptive representation to undertake a course of action will have acted carelessly, or will have been otherwise at fault, in responding to the inducement. The purpose of the legislation is not restricted to the protection of the careful or the astute. Negligence on the part of the victim of a contravention is not a bar to an action under s 82 unless the conduct of the victim is such as to destroy the causal connection between contravention and loss or damage. ... [14] For there to be the necessary causal relationship between a contravention of s 52, and loss or damage, so as to satisfy the requirements of s 82(1), it is not essential that the contravention be the sole cause of the loss or damage. ... The present case is not a case of carelessness or negligence. In the present proceeding, the Applicants acted at all material times prudently. They retained the services of an experienced person (Mr Mellor), made their own inquiries, and carefully considered the options available. The present case is one in which representations were made by Mr Wieland for the very purpose of inducing or encouraging the purchase of his machine. Not only is there an inference available that those statements were instrumental in the execution of the contracts (cf Gould v Vaggelas [1985] HCA 85 ; (1985) 157 CLR 215 at 236 per Wilson J; Campbell v Backoffice Investments Pty Ltd [2008] NSWCA 95 at [41] , [2008] NSWCA 95 ; 66 ACSR 359 at 370), the fact is that those statements have been proven to have played a large part in the decision to acquire the SLP 1100.


case_title: Henville v Walker [2001] HCA 52 , 206 CLR 459

case_text: The quantum of such loss or damage to which the Applicants, or either of them, may be entitled pursuant to s 82 thus remains a matter to be assessed. For present purposes it is sufficient to note that that task will be " to select a measure of damages which conforms to the remedial purpose of the statute and to the justice and equity of the case ": Henville v Walker [2001] HCA 52 at [18] , [2001] HCA 52 ; 206 CLR 459 at 470 per Gleeson CJ. The measure of the relief available under s 82 is not to be confined by an analogy with damages in contract or tort or equitable remedies: Marks v GIO Australia Holdings Ltd [1998] HCA 69 ; (1998) 196 CLR 494. The task will be to ascertain the loss suffered by the contravening conduct and to assess the amount necessary to compensate for that loss: Henville v Walker [2001] HCA 52 at [66] , [2001] HCA 52 ; 206 CLR 459 at 482 per McHugh J. Although not confined by those analogies, they will usually be of " great assistance ": [2001] HCA 52 at [130] per McHugh J. But such analogies should not distract " attention from the primary task of construing the relevant provisions of the Act ": Murphy v Overton Investments Pty Ltd [2004] HCA 3 at [44] , [2004] HCA 3 ; 216 CLR 388 at 407 per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ. 123 It has not been suggested that the Applicants were " careless " in relying upon any of the representations of the Respondents. Even carelessness or negligence on the part of an applicant, it may be noted, will not deny relief -- provided the carelessness has not been such as to destroy the causal connection between the contravening conduct and the loss or damage suffered: Henville v Walker [2001] HCA 52 at [13] , [2001] HCA 52 ; 206 CLR 459 at 468 9. Gleeson CJ there observed: [13] It will commonly be the case that a person who is induced by a misleading or deceptive representation to undertake a course of action will have acted carelessly, or will have been otherwise at fault, in responding to the inducement. The purpose of the legislation is not restricted to the protection of the careful or the astute. Negligence on the part of the victim of a contravention is not a bar to an action under s 82 unless the conduct of the victim is such as to destroy the causal connection between contravention and loss or damage. ... [14] For there to be the necessary causal relationship between a contravention of s 52, and loss or damage, so as to satisfy the requirements of s 82(1), it is not essential that the contravention be the sole cause of the loss or damage. ... The present case is not a case of carelessness or negligence. In the present proceeding, the Applicants acted at all material times prudently. They retained the services of an experienced person (Mr Mellor), made their own inquiries, and carefully considered the options available. The present case is one in which representations were made by Mr Wieland for the very purpose of inducing or encouraging the purchase of his machine. Not only is there an inference available that those statements were instrumental in the execution of the contracts (cf Gould v Vaggelas [1985] HCA 85 ; (1985) 157 CLR 215 at 236 per Wilson J; Campbell v Backoffice Investments Pty Ltd [2008] NSWCA 95 at [41] , [2008] NSWCA 95 ; 66 ACSR 359 at 370), the fact is that those statements have been proven to have played a large part in the decision to acquire the SLP 1100.


case_title: Jones v Dunkel (1959) 101 CLR 298

case_text: The explanation provided by Mr Wieland as to why the inspections may well have occurred at an earlier point of time, namely that the dates appearing on the records are the dates upon which those " in the office " subsequently completed the records, is rejected. Such an explanation is inconsistent with that which the records expose -- the records requiring those conducting the inspections to certify that which they found and to state (for example) the " date of testing ". Mr Wieland ultimately accepted that the explanation he was advancing as a " possibility " was but " speculation ". In such circumstances, there is no reason not to find that the test records were carried out upon the dates set forth. The findings of fact that the machines were inspected on the dates appearing on the face of individual documents, it is considered, is supported by both the form of the documents themselves and the conclusion that Mr Wieland's evidence, especially in this respect, was considered to be unpersuasive. Moreover, those findings of fact are only further reinforced by the absence of any evidence being called from those persons employed in the Chinese factory to either support the " speculation " of Mr Wieland or to expressly state what the practice was in respect to the dating of inspection reports: cf Jones v Dunkel (1959) 101 CLR 298 at 308 per Kitto J. Given the importance of the dates upon which inspections did in fact occur, being evidence centrally relevant to when the SLP 1100s were manufactured and were in fact in operation, it is considered that those persons who in fact completed the inspection reports (or at least perhaps one of them) could have shed light on the matter and would have been expected to have done so: cf RPS v The Queen [2000] HCA 3 at [25] , [2000] HCA 3 ; 199 CLR 620 at 632 per Gaudron ACJ, Gummow, Kirby and Hayne JJ. 177 In the absence of the " as built " drawings for the second SLP 1100 which failed, and in the absence of Mr Sun being called to give any evidence, the best evidence available to the Court as to the critical dimension presently in issue remained the measurements of Mr Better. That evidence, together with his conclusion, should be accepted. Even in the absence of recourse to the principle in Jones v Dunkel (1959) 101 CLR 298 at 308 per Kitto J, it is considered that the evidence of Mr Better was to be accepted. 178 Rejected is the express written submission advanced on behalf of the Respondents that " there was no explanation provided as to why the centre tongue in each of the samples was so badly decomposed ". It was Mr Better who provided that explanation. 179 A further line of cross-examination was to suggest that, if there had been insufficient axial clearance, the SLP 1100 would not have been operable at all -- or would not have been able to operate from April to August 2003. Mr Better's June 2008 Report addressed this possibility by maintaining that: Likely reasons for the operation during the 4-month period could be attributed to a combination of it being exposed to reasonably constant temperatures and the bearing assembly being greased regularly. It is also probable that there was some misalignment of the shaft and bearings and this would tend to cause point contact in the labyrinth, which would reduce the risk of seizing.


case_text: The contravening conduct of the Respondents may have caused loss or damage if that conduct was an inducement to the decision to purchase the SLP 1100: Lam v Ausintel Investments Australia Pty Ltd (1989) 97 FLR 458 at 477 8 per Gleeson CJ (Samuels AJA and Meagher JA agreeing). The " causative threshold " remains a matter of judgment: Ricochet Pty Ltd v Equity Trustees Executors and Agency Co Ltd [1993] FCA 99 ; (1993) 41 FCR 229 at 235. Lockhart, Gummow and French JJ there observed (at 235): A finding that a misrepresentation might have induced a decision will not of itself establish as a matter of probability that it did. Consistently with that finding, it may be that, on the balance of probabilities, a party was induced to make a decision by a combination of factors including the misrepresentation. Assuming a non-trivial contribution to the causative process by the misrepresentation, then it may be actionable. Ultimately, the "causative threshold" beyond which liability attaches to a misrepresentation which is one of a number of factors inducing a decision that produces loss, will be a question of judgment. This is a familiar process adverted to in various related contexts by Mason CJ in March v E & M H Stramare Pty Ltd (supra) and in this Court in Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (No 2) [1987] FCA 230 ; (1987) 16 FCR 410 at 418 419 and Pavich v Bobra Nominees Pty Ltd [1988] ATPR 49 ,849. (See also Munchies Management Pty Ltd v Belperio (1988) 84 ALR 700 at 712). But the mere possibility that a misrepresentation might have induced a course of action by the representee can never of itself attach liability under s 82 to the making of it.