case_text: In Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 ( Taco ), in the joint judgment of Deane and Fitzgerald JJ, their Honours at 200 said: In truth, of course, no conduct can mislead or deceive unless the representee labours under some erroneous assumption. Such an assumption can range from the obvious, such as a simple assumption that an express representation is worthy of credence, through the predictable, such as the common assumption in a passing-off case that goods marketed under a trade name which corresponds to the well-known trade name of goods of the same type have their origins in the manufacturer of the well-known goods, to the fanciful, such as an assumption that the mere fact that a person sells goods means that he is the manufacturer of them. The nature of the erroneous assumption which must be made before conduct can mislead or deceive will be a relevant, and sometimes decisive, factor in determining the factual question whether conduct should properly be categorized as misleading or deceptive or as likely to mislead or deceive. Again, that passage was cited with apparent approval by the High Court in Campomar at [104]. 90 Deane and Fitzgerald JJ in Taco at 202 pointed out the difficulty arising in a case involving s 52 of the TP Act (a civil claim alleging misleading or deceptive conduct) of determining whether the alleged conduct contains or conveys a misrepresentation, and of the significance to that question of evidence from one or more persons that they were in fact led into error. Their Honours said that the latter question, namely whether actual evidence of being misled is necessary, should be answered in the negative. Such evidence is helpful but not necessary. Their Honours continued: ... whether or not conduct amounts to misrepresentation is a question of fact to be decided by considering what is said and done against the background of all surrounding circumstances. 92 In Campomar , the High Court then said at [105]: The initial question which must be determined was whether the misconceptions, or deceptions, alleged to arise or to be likely to arise are properly to be attributed to the ordinary or reasonable members of the classes of prospective purchasers. Their Honours emphasised at [106] as had been said in Taco Bell at 201, that the question whether particular conduct causes confusion or wonderment, or is misleading or deceptive, cannot be substituted for the question whether the conduct answers the statutory description contained in the section under consideration.


case_outcome: followed

case_text: Their Honours then provided certain guidance in considering and determining whether the suggested misrepresentation has been made, and is or is likely to be misleading or deceptive of the public. The first item of guidance was to identify the relevant section or sections of the public by reference to whom the question of whether conduct is, or is likely to be, misleading or deceptive falls to be tested. The second, having identified the relevant section of the public, was to consider the issue by reference to all who come within it, "including the astute and the gullible, the intelligent and the not so intelligent, the well educated as well as the poorly educated, men and women of various ages pursuing a variety of vocations". That quotation was adopted from the judgment of Lockhart J in Puxu Pty Ltd v Parkdale Custom Built Furniture Pty Ltd (1980) 31 ALR 73 at 93. In Campomar , the High Court confirmed at [105] that the Court may well decline to regard as controlling the application of s 52 assumptions by persons whose reactions are "extreme or fanciful".


case_text: The defendant did not have any onus of demonstrating that an understanding of the Christmas catalogue consistent with innocence was available: see Knight v R [1992] HCA 56 ; (1992) 175 CLR 495 at 503. The prosecution had to prove beyond reasonable doubt that the false or misleading representations were made as it alleged. In my judgment, for the reasons referred to, the prosecution has proved that. 108 I have considered whether there were other reasonably possible "explanations consistent with innocence" (words used by the defendant in its written submission) which could be drawn from the relevant sections of the Christmas catalogue. For the reasons I have given, the fact that there may have been other meanings drawn by some consumers, with different degrees of knowledge or understanding, does not diminish my conclusion beyond reasonable doubt that the alleged representation was made. As I have said, s 75AZC(1) does not require that the representation must be so understood by every consumer or potential consumer. 109 The defendant suggested that the strike out price might have conveyed the defendant's previous or normal ticketed price, or a competitor's price, or the value of the relevant item of jewellery. For the reasons already given, even if some consumers or potential consumers might reasonably have so understood what was represented by the relevant parts of the Christmas catalogue in all the circumstances, that would not mean that the representation which I have identified was not made.


case_outcome: considered

case_text: For the sake of completeness, I record that I have also considered the cases under s 53(e) of the TP Act to which I was referred. Each was decided on its own particular facts and is not, in my view, of direct assistance in deciding whether the prosecutor has made out the case. That depended on whether, judged objectively, the representations were made by the defendant in all the circumstances by the relevant parts of the Christmas catalogue. However, I mention briefly those cases: Trade Practices Commission v Cue Design Pty Ltd (1996) 85 ACrim Rep 500 ( Cue Design ) and Australian Competition and Consumer Commission v Allans Music Group Pty Ltd [2002] FCA 1552 ( Allans ). Each of those cases concerned a prosecution under s 79(1) of the TP Act for a contravention of s 53(e) of that Act (that is the regime which existed prior to the introduction of Pt VC). Each involved pricing representations. In the case of Cue Designs , there was a price tag with a higher price which was crossed out together with a representation as to a lower price in relation to items of apparel. It was found that a reasonable person would be led to believe that the items of apparel had previously been offered for sale at the higher price marked on the tag and were now being offered for sale at the lower price. It is therefore somewhat different from the present case where the relevant allegation is that the strike through price was the price at which the particular items of jewellery might be purchased other than during the sale period, and so provided an indication of the saving available during the sale period. In Cue Design the higher price had not previously been the price at which the items of apparel had been offered for sale. In any event, in that case there was a guilty plea to the charges and the case concerned penalty. Similarly in Allans : the representation was that there was a narrow window of opportunity in the Christmas lead up period when bargains of a very substantial nature could be obtained on Allans' musical goods by paying a much lower price in that period than that which had been paid in circumstances where a purchase was made before the beginning of that period. In other words, the representation in that case was as to what had previously been paid or was expected to be paid by reason of the crossed through price. Again, a plea of guilty was made in relation to those charges. Finally, I note Ducret v Chaudhiry's Oriental Carpet Palace Pty Ltd (1987) 76 ALR 182. It was also a prosecution under s 79 for contraventions of s 53(e) of the TP Act. The prosecution was summarily dismissed. In that case, the price comparators were viewed in the context of extensive evidence to which the primary judge referred, so that upon the whole of the evidence the contrasting price was not misleading or deceptive. It was a decision on its particular facts also.


case_title: Australian Competition and Consumer Commission v Allans Music Group Pty Ltd [2002] FCA 1552


case_title: Ducret v Chaudhiry's Oriental Carpet Palace Pty Ltd (1987) 76 ALR 182


case_outcome: cited

case_text: A less straightforward question arises when the relevant person is a beneficiary of a discretionary trust. The term 'discretionary trust' has been said in the High Court to bear a meaning 'disclosed by a consideration of usage rather than doctrine' and to be used in a way that is 'descriptive rather than normative'. It has 'no fixed meaning and is used to describe particular features of certain express trusts' Commissioner of Stamp Duties (NSW) v Buckle [1998] HCA 4 ; (1998) 192 CLR 226 at [8] . In Federal Commissioner of Taxation v Vegners (1989) 90 ALR 547 at 552, Gummow J said that the expression 'discretionary trust' is used to identify a species of express trusts in which, unlike a fixed trust, the entitlement of the beneficiaries to income, or to corpus, or both, is not immediately ascertainable (at 552): '...the beneficiaries are selected from a nominated class by the trustee or some other person and this power may be exercisable once or from time to time.' His Honour described the power of the trustee as a 'special or hybrid power'. Thus (at 552): '... a power exercisable in favour of any person including the donee of the power would be a general power and thus would be tantamount to ownership of the property concerned, whilst the objects of a special power would be limited to some class, and the objects of a hybrid power would be such that the donee might appoint to anyone except designated classes or groups.' At least by analogy it may be observed that a beneficiary who effectively controls the trustee of a discretionary trust may have what approaches a general power and thus a proprietary interest in the income and corpus of the trust.


case_title: Federal Commissioner of Taxation v Vegners (1989) 90 ALR 547


case_title: Re Smith [1928] Ch 915

case_text: The distinction between exhaustive and non-exhaustive trusts and its significance to the nature of the beneficiaries' interests appears in the judgment of Romer J in Re Smith [1928] Ch 915 (at 918): 'Where there is a trust under which trustees have a discretion as to applying the whole or part of a fund to or for the benefit of a particular person, that particular person cannot come to the trustees, and demand the fund; for the whole fund has not been given to him but only so much as the trustees think fit to let him have. But when the trustees have no discretion as to the amount of the fund to be applied, the fact that the trustees have a discretion as to the method in which the whole of the fund shall be applied for the benefit of the particular person does not prevent that particular person from coming and saying: "Hand over the fund to me".'


case_title: Re Nelson [Note] [1928] Ch 920

case_text: In Re Nelson [Note] [1928] Ch 920 the trustees of a deceased estate under a will were empowered by its terms to apply the income of one third of the estate for the benefit of such of the testator's son, daughter-in-law and granddaughter as they thought fit. It was an exhaustive discretionary trust with a closed class comprising the three named beneficiaries. The three beneficiaries collectively mortgaged their share and interest under the will. The Court of Appeal rejected an argument that there was no interest to be mortgaged. The disposition was described by Swinfen Eady MR as '... an absolute gift between the three individuals who are of age and sui juris'. They had all concurred '... in assigning by way of mortgage their interest'. Duke LJ and Eve J agreed. 24 The Master of the Rolls in Re Nelson distinguished the case of Re Coleman [1888] 39 Ch D 443 which was relied upon by the appellants. In Re Coleman the trustees had power to apply the income of a trust fund for the benefit of a class or any one of them to the exclusion of the others. One of the beneficiaries assigned his share and claimed unsuccessfully that an appropriate portion, one quarter of the income, should be paid to his assignee. Swinfen Eady MR said of that case (at 921): 'The answer to that was that he did not take an equal fourth or any other share and the trustees could have applied the whole of the income to the other members of that class. That is quite a different case from the present case, where all the members of the class have assigned their shares to the mortgagees.'


case_title: Re Coleman [1888] 39 Ch D 443

case_text: The Master of the Rolls in Re Nelson distinguished the case of Re Coleman [1888] 39 Ch D 443 which was relied upon by the appellants. In Re Coleman the trustees had power to apply the income of a trust fund for the benefit of a class or any one of them to the exclusion of the others. One of the beneficiaries assigned his share and claimed unsuccessfully that an appropriate portion, one quarter of the income, should be paid to his assignee. Swinfen Eady MR said of that case (at 921): 'The answer to that was that he did not take an equal fourth or any other share and the trustees could have applied the whole of the income to the other members of that class. That is quite a different case from the present case, where all the members of the class have assigned their shares to the mortgagees.'


case_text: Gartside v Inland Revenue Commissioners [1967] UKHL 6 ; [1968] AC 553 concerned a trust under which the trustees had a discretion to apply the income of a fund for the maintenance or benefit of all or any of the testator's son, daughter-in-law or children (if any) and to accumulate surplus income. A principal issue in the case was whether the potential beneficiaries of the trust had 'interests in possession' in the trust fund for estate duty purposes. The House of Lords rejected that contention. Lord Wilberforce said (at 617): 'No doubt in a certain sense a beneficiary under a discretionary trust has an "interest": the nature of it may, sufficiently for the purpose, be spelt out by saying that he has a right to be considered as a potential recipient of benefit by the trustees and a right to have his interest protected by a court of equity.' Lord Wilberforce also made the point that the term 'interest' may have different meanings according to the context in which it is used (at 618): '... it may be a right, with some degree of concreteness or solidity, one which attracts the protection of a court of equity, yet it may still lack the necessary quality of definable extent which must exist before it can be taxed.' 28 The Full Court of the Supreme Court of Western Australia considered these questions in R & I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1992) 10 WAR 59. The case involved contempt proceedings for alleged breach of a mareva injunction. One of the persons bound by the injunction exercised his powers as appointor under a trust deed to make his son guardian of the trust and removed himself as appointor. His son then removed the other trustee, Anchorage, and appointed a company with which he was associated as trustee. The new trustee, with his consent and that of his wife, declared that they be excluded as general beneficiaries. The question was whether these transactions amounted to a breach of the terms of the injunction. The Full Court held that a beneficiary of a trust of the type then in question did not have a proprietary interest in any particular 'assets' of the trust fund or in the trust fund as a whole. The expectancy which a beneficiary has that the trustee might appoint capital of the trust fund in his or her favour lacked the requisite aspect of 'value' to enable it to be regarded as an asset. In his judgment in that case Owen J said (at 79): 'A beneficiary of a trust of this type does not have a proprietary interest in any particular asset of the trust fund or in the Trust Fund as a whole: see Gartside v Inland Revenue Commissioner [1967] UKHL 6 ; [1968] AC 553 . The Trust Deed confers on a trustee a mere power. It is a power of very wide import. The trustee can determine whether an individual beneficiary is to benefit at all, and if so, in what way, from the exercise of the power in his or her favour. In this sense, the beneficiary has nothing more than an expectancy. The trustee has a duty to administer the trust bona fide having regard to the purpose for which it was established.' ASIC sought to distinguish that case on the basis that the question with which it was concerned was whether the interest of a general beneficiary under a discretionary trust could be characterised as an 'asset'. In my opinion, however, the observations of Owen J have a more general application.


case_text: The Full Court of the Supreme Court of Western Australia considered these questions in R & I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1992) 10 WAR 59. The case involved contempt proceedings for alleged breach of a mareva injunction. One of the persons bound by the injunction exercised his powers as appointor under a trust deed to make his son guardian of the trust and removed himself as appointor. His son then removed the other trustee, Anchorage, and appointed a company with which he was associated as trustee. The new trustee, with his consent and that of his wife, declared that they be excluded as general beneficiaries. The question was whether these transactions amounted to a breach of the terms of the injunction. The Full Court held that a beneficiary of a trust of the type then in question did not have a proprietary interest in any particular 'assets' of the trust fund or in the trust fund as a whole. The expectancy which a beneficiary has that the trustee might appoint capital of the trust fund in his or her favour lacked the requisite aspect of 'value' to enable it to be regarded as an asset. In his judgment in that case Owen J said (at 79): 'A beneficiary of a trust of this type does not have a proprietary interest in any particular asset of the trust fund or in the Trust Fund as a whole: see Gartside v Inland Revenue Commissioner [1967] UKHL 6 ; [1968] AC 553 . The Trust Deed confers on a trustee a mere power. It is a power of very wide import. The trustee can determine whether an individual beneficiary is to benefit at all, and if so, in what way, from the exercise of the power in his or her favour. In this sense, the beneficiary has nothing more than an expectancy. The trustee has a duty to administer the trust bona fide having regard to the purpose for which it was established.' ASIC sought to distinguish that case on the basis that the question with which it was concerned was whether the interest of a general beneficiary under a discretionary trust could be characterised as an 'asset'. In my opinion, however, the observations of Owen J have a more general application.


case_text: I accept that there are some rights enjoyed, even by the beneficiaries of a non-exhaustive discretionary trust with an open class of beneficiaries. They include the right to inspect the trust documents Re Londonderry's Settlement [1965] Ch 918 and the right to require the trustee to provide information about management of the trust fund Spellson v George (1987) 11 NSWLR 300; Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405. There is also a right to enforce the proper management of the trust by the trustee Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694; Re Atkinson [1971] VR 613.


case_title: Spellson v George (1987) 11 NSWLR 300


case_title: Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405


case_title: Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694


case_title: Re Atkinson [1971] VR 613


case_text: ASIC submitted that a contingent interest in property equates to a proprietary interest. It cited Craig v Federal Commissioner of Taxation [1945] HCA 1 ; (1945) 70 CLR 441. That case concerned the application of s 8(4) of the Estate Duty Assessment Act 1914 (Cth). The Act levied estate duty on the value of the estate of deceased persons. Included in the property brought into the estate for the purposes of the assessment of estate duty was property 'comprised in a settlement made by the deceased person under which he had any interest of any kind for his life...'.


case_text: In Inland Revenue Commissioners v Trustees of Sir John Aird's Settlement [1984] Ch 382, the trustees of a trust sought to take advantage of an exemption from charge under the Finance Act 1975 of beneficiaries of discretionary trusts who on surviving another person for a specified period became entitled to interests in possession as from the other person's death. Irrevocable appointments were made by the trustees in favour of two of the settlor's children contingent on their surviving for the period of one day a person whose death should occur on 29 November 1975 and who would be the first of the persons dying on that date to be named in the deaths' column on the back page of The Times published on Monday, 1 December 1975. The case went off, in the Court of Appeal, on the basis that the true legal effect of the appointments caused the interests conferred on the beneficiaries to vest only in the event of their surviving publication of the relevant edition of the newspaper. The appointments did not contain any genuine contingency of surviving another person by a specified period. The Court of Appeal reversed the judgment of Nourse J at first instance, but Nourse J, in a passage unaffected by the appellate decision, said: 'A contingency is an event which may or may not happen. If there is no real possibility that it will not happen, so that it is as good as certain that it will, it is a contingency without reality and substance and no contingency at all. But a real possibility is not the same thing as a probability. It may be highly improbable that an event will happen, but there can still be a real possibility that it will. If there is that possibility, however remote it may be, the contingency is one of reality and substance.' - Inland Revenue Commissioners v Trustees of Sir John Aird's Settlement [1982] 2 All ER 929 at 940


case_title: Inland Revenue Commissioners v Trustees of Sir John Aird's Settlement [1982] 2 All ER 929


case_text: As discussed earlier, the beneficiary who effectively controls the trustee's power of selection because he is the trustee or one of them and/or has the power to appoint a new trustee has something approaching a general power and the ownership of the trust property. There are cases in the Family Law jurisdiction which have dealt with like circumstance. In Ascot Investments Pty Ltd v Harper [1981] HCA 1 ; (1981) 148 CLR 337, Gibbs J said (at 354-355): '... if a company is completely controlled by one party to a marriage, so that in reality an order against the company is an order against the party, the fact that in form the order appears to affect the rights of the company may not necessarily invalidate it.' Stephen, Aickin and Wilson JJ agreed.


case_text: The Full Court of the Family Court of Australia in In the Marriage of Ashton (1986) 11 Fam LR 457 considered a case in which the husband was appointor of a family trust. He had the power to remove and appoint the trustee and could appoint himself. The trustee had the power to alter the terms of the trust at will. He was not a beneficiary of the trust but had received income from it. He was found to be 'in full control of the assets of the trust'. There were 'good grounds for saying the trust is no more than the husband's alter ego'. Strauss J said (at [14]): 'In the result, having regard to the powers and discretions which the husband has, and having regard to what had in fact taken place, for the purposes of s 79 [of the Family Law Act 1975 (Cth)] , the husband's power of appointment, and all the attributes it carries with it, amounts to de facto ownership of the property of the trust.'


case_text: A similar trust arrangement existed in In the Marriage of Goodwin (1990) 101 FLR 386. The trial judge had found that the reality in that case was that no person other than the husband had any real interest in the property or income of the trust except at the will of the husband. In upholding the trial judge, the Full Court said (at 392): '... we have no doubt that his Honour was entitled to find that the trust property was in reality the property of the husband in the present case. The husband had the sole power of appointment of the trustee which was a creature under his control and he was a beneficiary to whom the trustee could make payments exclusive of other beneficiaries as the husband saw fit.' In the case of In Marriage of Davidson (No 2) (1990) 101 FLR 373 the Full Court observed (at 382): 'Whatever may have been the position 100 years ago Australian courts today have to look at the reality of the situation and the purpose which family trusts serve today.'


case_title: In Marriage of Davidson No 2) (1990) 101 FLR 373


case_outcome: discussed

case_text: Auspine Ltd v H S Lawrence & Sons Pty Ltd [1999] FCA 1749 , O'Loughlin J refused an application to cross-examine the deponent of an affidavit of discovery. He clearly accepted that there was a power to order cross-examination, but did not think it should be exercised in the circumstances of the case before him. O'Loughlin J's reasons suggest that he considered that the power should be exercised only in very limited circumstances.


case_text: think the applicants' contention is correct. The respondents instructed Perks to carry out an analysis of the Joint Venture and Perks reached a conclusion as to the balance owing by or to the various members of the Joint Venture. No doubt that was done, in part at least, to satisfy the applicants that a proper accounting had been performed. The respondents decided to expressly waive privilege over the material they provided to the applicants. They thereby waived privilege over associated material ( AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234 at [127] - [176] ). The class of documents in Schedule 1 Part 2 is associated material because it deals with the same subject matter as the material over which privilege has been waived and it forms the basis of that material. I will make an order that the respondents produce for inspection the documents in Schedule 1 Part 2 of the List of Documents. Conclusion In my opinion, an order should be made that each respondent file a further affidavit of discovery. Furthermore, an order should be made that the documents in Schedule 1 Part 2 of the Amended List of Documents filed and served on 14 October 2009 should be produced to the applicants by the respondents. I will hear the parties as to the precise terms of the orders to be made. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 17 December 2009 Counsel for the Applicants: Mr D J Blight Solicitor for the Applicants: Iles Selley Lawyers Counsel for the Respondents: Mr A Rogers Solicitor for the Respondents: Fitzpatrick Solicitors Pty Ltd Date of Hearing: 7, 8 December 2009 Date of Judgment: 17 December 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1518.html


case_text: refer also to the detailed discussion of the authorities by Menhennitt J in Beecham Group Ltd v Bristol-Myers Co [1979] VR 273. I think reasonable grounds for being fairly certain that there are other relevant documents is a good workable test and is a test supported by the authorities.


case_text: British Association of Glass Bottle Manufacturers, Limited v Nettlefold [1912] AC 673 at 714, the Lord Chancellor, Lord Haldane, spoke in terms of there being reasonable grounds for being fairly certain that there are other relevant documents.


case_text: Finance Sector Union of Australia v Commonwealth Bank of Australia Limited [2000] FCA 1389 , Moore J declined to make an order for cross-examination of a deponent of an affidavit sworn in response to an order for particular discovery. He considered that there was a power to order cross-examination, but that, as the affidavit of discovery should generally be treated as conclusive, the power should only be exercised "in order to do justice between the parties or to prevent an abuse of the Court's processes". The deponent had filed a supplementary affidavit to explain what he meant by "discarded" in his affidavit of discovery.


case_text: Fruehauf Finance Corporation Pty Ltd v Zurich Australian Insurance Ltd (1990) 20 NSWLR 359 , Giles J considered an application to cross-examine the deponent of an affidavit put forward in support of a claim for privilege. He referred to Mulley v Manifold and to the principle that the affidavit of discovery is generally conclusive not only as to the amplitude of discovery, but also in relation to any claim for protection from production. Giles J declined to allow cross-examination in that case. He referred to authority to the effect that there was no power to allow cross-examination and to authority suggesting that there was a power, albeit a power to be exercised in limited circumstances.


case_text: fact that O 15A incorporates a number of processes and obligations in O 15 is established by the authorities. I refer to Global Intertrade Pty Ltd v Adelaide Festival Centre Trust [1999] FCA 162 (" Global Intertrade "); Tyco Australia Pty Limited v Leighton Contractors Pty Ltd [2005] FCAFC 115 ; Imperial Chemical Industries Plc v Echo Tasmanian Pty Ltd [2007] FCA 1731. However, the fact that O 15A incorporates certain parts of O 15 does not mean that it incorporates all parts of the Order. Order 15A does incorporate the provisions of O 15 dealing with inspection (that is, Division 2) but that is done expressly by O 15A r 10. By contrast, O 15 r 8 is a free-standing power available in cases of discovery in existing proceedings. It is not expressly incorporated into O 15A and there is no compelling reason to think that it was intended to be available in a case where an applicant does not have sufficient information to enable a decision to be made whether to commence a proceeding in this Court, that is to say, an applicant for preliminary discovery under O 15A r 6. Put another way, while it might be convenient for there to be a power of the type identified in O 15 r 8 in the case of orders for preliminary discovery, it is not so obviously necessary in such cases that it can be implied in the same way as, for example, the provisions dealing with the contents of a List of Documents (O 15 r 6).


case_text: Noel v Noel [1863] EngR 646 ; 1 D.J. & S. 468 , Turner LJ spoke of a reasonable suspicion that the deponent had more documents in his possession. In Lyell v Kennedy (1884) 27 Ch D 1 at 20, Cotton LJ followed this approach. In a case a short time later, his Lordship spoke of a presumption or prima facie case that the deponent had more documents in her possession ( Hall v Truman, Hanbury & Co (1885) 29 Ch D 307 at 319-321).


case_title: Imperial Chemical Industries Plc v Echo Tasmanian Pty Ltd [2007] FCA 1731


case_text: IO Group Inc v Prestige Club Australasia Pty Ltd [2008] FCA 1147 , a deponent of an affidavit of discovery was cross-examined. The deponent of the affidavit had not opposed an order for cross-examination. Flick J described the course of allowing cross-examination as unusual. His Honour did make the following observation (at [50]): "As events unfolded, it [cross-examination] was probably the only effective means whereby the Applicants could have exposed what they believed were inadequacies in the existing discovery as provided particularly by the Fourth Respondent. As a result of the cross-examination, the Applicants were proved right. An order requiring a further affidavit to be filed in respect to particular documents, without knowledge of the manifest deficiencies in the existing discovery, may well have proved as ineffective as the discovery previously provided." In my opinion, the examples given by the applicants of the insufficiency of the affidavit of discovery in relation to the five classes of documents in Schedule 2 demonstrate the insufficiency. I reject the respondents' contention that the affidavit of discovery is conclusive and that the Court is unable to make orders remedying the defects. In this case, the insufficiency of the affidavit appears on the face of the affidavit. At the same time, I do not think that this is a case where cross-examination should be ordered, at least at this stage. The respondents can be ordered to each file a further affidavit of discovery and this is not a case where there is no effective means other than cross-examination of preventing an injustice to the applicants. Each respondent must file a further affidavit of discovery in relation to the five classes of documents in Schedule 2 of the List of Documents. Further and better discovery or an order for particular discovery under O 15 r 8 (the orders sought in paragraphs 2 and 4 of the Motion) For the reasons I have already given, I do not think that O 15 r 8 is incorporated into O 15A. In those circumstances, it is not open to me to make an order for particular discovery under O 15 r 8. Nevertheless, as I have said, an affidavit of discovery under O 15A may be insufficient, and an order may be made that a further affidavit of discovery be filed. The principles are those set out above (see [28]-[34]). I must be satisfied that there are reasonable grounds for being fairly certain that discoverable documents exist. I may not have regard to a contentious affidavit.


case_title: Lyell v Kennedy (1884) 27 Ch D 1


case_text: Mulley v Manifold [1959] HCA 23 ; (1959) 103 CLR 341 (" Mulley v Manifold ") (at 343), Menzies J said in a well-known passage: "So far as O. 32, r. 13 is concerned, it cannot be shown by a contentious affidavit that the discovery made is insufficient. Before 1912, it was thought that the insufficiency had to appear from the pleadings, the affidavit of documents itself or the documents therein referred to. However, in British Association of Glass Bottle Manufacturers Ltd. v. Nettlefold , it was established that the insufficiency might appear not only from the documents but also from any other source that constituted an admission of the existence of a discoverable document. Furthermore, it is not necessary to infer the existence of a particular document; it is sufficient if it appears that a party has excluded documents under a misconception of the case. Beyond this, the affidavit of discovery is conclusive." As the passage from Mulley v Manifold set out above makes clear, there are limits on the material which may be considered by a Court in determining the sufficiency of an affidavit of discovery. The most significant is that the insufficiency cannot be established by a contentious affidavit. The insufficiency of an affidavit of discovery will ordinarily lead to an order requiring the filing of a further affidavit of discovery. It may, in certain limited circumstances, lead to an order allowing cross-examination of the deponent. I turn now to examine the circumstances in which the Court will make an order for cross-examination of the deponent. In Fruehauf Finance Corporation Pty Ltd v Zurich Australian Insurance Ltd (1990) 20 NSWLR 359 , Giles J considered an application to cross-examine the deponent of an affidavit put forward in support of a claim for privilege. He referred to Mulley v Manifold and to the principle that the affidavit of discovery is generally conclusive not only as to the amplitude of discovery, but also in relation to any claim for protection from production. Giles J declined to allow cross-examination in that case. He referred to authority to the effect that there was no power to allow cross-examination and to authority suggesting that there was a power, albeit a power to be exercised in limited circumstances.


case_text: Olympic Airways SA v Spiros Alysandratos & Consolidated Travel (Vic) Pty Ltd (Unreported, Supreme Court of Victoria, Harper J, 26 May 1997), Harper J allowed cross-examination on an affidavit of discovery of particular documents. The case was a strong one because of the features identified in the following passage from his Honour's reasons: "It seems to me that the evidence is at present in such a state as to raise serious doubts as to whether the process of the court is being abused by the defendants in relation to discovery. I have, of course, formed no concluded view about this. It would be quite improper for me to do so. I simply say that on the material now before the court serious questions have arisen as to the legitimacy of the position thus far taken by the defendants in relation to discovery. Discovery being of particular importance in this matter, it may well be that if the defendants are seeking illegitimately to avoid their obligations in this regard, the plaintiffs will be disadvantaged in a way which will not subsequently be able to be rectified. The only process by which an important aspect of these proceedings can be explored at this stage is, it seems to me, by ordering the first defendant to attend for cross-examination. I appreciate that such a step is unusual."


case_title: Tyco Australia Pty Limited v Leighton Contractors Pty Ltd [2005] FCAFC 115


case_outcome: applied

case_text: An applicant for review under s 104(2) is under no obligation to demonstrate error on the part of the Registrar, and does not need to establish that the Registrar's exercise of discretion miscarried in the sense described in House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 505: Pattison v Hadjimouratis [2006] FCAFC 153 at [153] - [154] . The Magistrate must exercise any discretion on the material before him or her unaffected by how the Registrar may have exercised the discretion.


case_text: The remaining grounds of appeal attack the Magistrate's exercise of discretion. The appellant acknowledged the obstacles that lie in the way of such an attack. It must be shown that an error has been made in the exercise of the discretion. There is a strong presumption in favour of the correctness of the decision appealed from, which must be affirmed unless the court of appeal is satisfied that it is clearly wrong: Australian Coal and Shale Employees' Federation v Commonwealth [1953] HCA 25 ; (1953) 94 CLR 621 at 627.


case_title: House v The King [1936] HCA 40 ; 55 CLR 499

case_text: An applicant for review under s 104(2) is under no obligation to demonstrate error on the part of the Registrar, and does not need to establish that the Registrar's exercise of discretion miscarried in the sense described in House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 505: Pattison v Hadjimouratis [2006] FCAFC 153 at [153] - [154] . The Magistrate must exercise any discretion on the material before him or her unaffected by how the Registrar may have exercised the discretion. 20 The circumstance is which error may be established in connection with an exercise of discretion are described in House v The King 55 CLR at 504-505: "It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so."


case_text: In Norbis v Norbis [1986] HCA 17 ; (1986) 161 CLR 513 at 518 Mason and Deane JJ said: "If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance." 28 Whether someone has behaved unreasonably in particular circumstances involves a value judgment. It is a matter about which minds may well differ. In this case the appellant's conduct in response to the request in the GSM letter was relevant to the exercise of the Magistrate's discretion. The complaint that the Magistrate "relied too heavily" on that letter as opposed to other material does not demonstrate error in the exercise of the discretion. It simply argues about the end result of its exercise. See the passage from Norbis quoted at [21]. Nor does it mean, as the appellant submitted, that the Magistrate "thereby failed to consider properly the actions and conduct of the appellant".


case_text: The above principles apply to an appeal against an order for costs: Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1987) 17 FCR 211 at 222. The starting point is that costs normally follow the event. In Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at 97-98 McHugh J with whom Brennan CJ agreed, said: "The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion .... 'Misconduct' in this context means misconduct relating to the litigation, or the circumstances leading up to the litigation. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute."


case_title: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72


case_text: The appellant claims the Magistrate erred by relying on two earlier decisions: Hogg v J Isherwood-Hicks Pty Ltd (1992) 108 FLR 62 and Microsoft (International) Pty Ltd v Total Peripherals Pty Ltd [1998] VSC 50. It is said that they are distinguishable. In my view the appellant mistakes the use the Magistrate was making of these cases. She accepted that they were distinguishable. She was deprecating precipitate action on the part of the appellant, as were the judges in the two cases relied on. The Magistrate did not commit an appealable error by relying on what was said in those cases about precipitate action, as a relevant consideration, simply because the cases are distinguishable on their facts.


case_title: Microsoft (International) Pty Ltd v Total Peripherals Pty Ltd [1998] VSC 50


case_text: The appeal is being heard by me as a single judge pursuant to s 25 (1AA)(a) of the Federal Court of Australia Act 1976 (Cth). An appeal to this Court from a decision of the Federal Magistrates Court is an appeal by way of re-hearing, but the process remains a process for the correction of error. As Kenny J said in Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 [4]: 'On an appeal by way of re-hearing, the powers of an appellate court are exercisable only if the appellant can demonstrate that, having regard to the evidence before the appellate court, the judgment under appeal is a consequence of some legal, factual or discretionary error'. 3 Therefore, the burden rests on the appellant to demonstrate some legal, factual or discretionary error by the Federal Magistrate. In turn, the Federal Magistrate was examining the question whether there was jurisdictional error on the part of the Tribunal. 4 The Tribunal examined each of the grounds upon which the appellant challenged the decision of the delegate, and rejected all of the grounds raised by the appellant. The Tribunal concluded that there was 'an overwhelming lack of credibility' in the appellant's claims regarding his political profile and activities and alleged fear of persecution for political reasons. The Tribunal formed the view that he had 'fabricated a colourful set of claims' to support his application for a protection visa.


case_text: The Tribunal's findings on credibility were central to its decision. A finding on credibility that was open to the Tribunal on the material before it does not give rise to an error of law: see Mashayekhi v Minister for Immigration and Multicultural Affairs [2000] FCA 321 ; (2000) 97 FCR 381 and W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703. Findings on credibility were described by McHugh J in Re Minister for Immigration ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 as the function of the primary decision-maker, par excellence: at 423 [67]. That does not mean that such findings are invulnerable to review, but it does mean that they will not ordinarily be reviewable if the Tribunal has provided a rational basis for rejecting the claims and relied upon matters that were logically probative of the issues it was determining: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 552 and 559.


case_title: W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703


case_title: Re Minister for Immigration ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407


case_title: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547


case_text: The notice of appeal alleged a number of jurisdictional errors. First, it was contended that the Tribunal erred in adopting an unduly harsh approach to the requirement that there be a well-founded fear of persecution for a Convention reason, and more particularly, that the Tribunal did not apply the 'real chance' test enunciated in cases such as Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 and Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379 (' Chan' ). Those cases require both a subjective apprehension of persecution and an apprehension that is grounded in objective reality. This has been described as a 'real chance' of persecution, namely, a chance that is not remote or insubstantial or a far-fetched possibility: see Chan at 389, 398, 407 and 429. Secondly, the notice of appeal contended that the Tribunal made errors in its assessment of 'serious harm' as embodied in s 91R(1)(b) of the Migration Act 1958 (Cth). Thirdly, the notice of appeal contended that the Tribunal erred by basing its findings on country information concerning the Naxalite movement, rather than on information provided by the appellant. The fourth ground of appeal was that the Tribunal misdirected itself by failing to correctly identify the appellant's social and political group, which was described as a non-violent segment of the Naxalite movement. Finally, the notice of appeal raised a contention that the Tribunal was biased. This contention appears to be largely premised upon the way in which the Tribunal questioned the appellant and then proceeded to reach conclusions as to his credibility.


case_title: Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379


case_title: Bodney v Brophy [2004] FCAFC 226

case_text: It was submitted on behalf of the Applicant that the jurisprudence which has developed in this Court in relation to the striking out under s 84C of the Native Title Act of an application on the basis of a failure to comply with the requirements of that Act was relevant by analogy to the dismissal of an application pursuant to s 190F(6). That jurisprudence, of which Williams v Grant [2004] FCAFC 178 and Bodney v Brophy [2004] FCAFC 226 are exemplars at intermediate appellate level, evidences an application in the particular context of the dismissal of a native title application, of the reticence which customarily attends the summary dismissal of a proceeding under a rule such as, in this Court, O 20 r 4 of the Federal Court Rules , having regard to root authorities on the subject such as General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 130 and Dey v Victorian Railways Commissioner [1949] HCA 1 ; (1949) 78 CLR 62 at 91.


case_text: Section 31A of the Federal Court of Australia Act expressly modifies the position which would otherwise prevail, having regard to the root authorities mentioned, in the determination of whether an application has reasonable prospects of success. A question which emerges is whether s 190F(6), like s 84C, merely highlights a particular basis for summary dismissal leaving the general law on that subject applicable or whether it, too, should be regarded as providing a unique power of dismissal which "is to be construed and applied according to its terms, not under the influence of 'muffled echoes of old arguments' concerning other legislation": Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34 ; (1996) 186 CLR 404 , at 414. 38 Subsection 190F(6) is found within Pt 7 of the Native Title Act , which is concerned with the registration of native title claims on the Register established under that Part. It was added to the Native Title Act last year by the Native Title Amendment (Technical Amendments) Act 2007 (Cth) (The Technical Amendments Act); by s 3 and Sch 1, Pt 1, item 107 of that Act. 39 On its face, s 190F(6) of the Native Title Act appears to provide for a wholly self-contained power of dismissal. The ability to exercise that power is engaged only by the fulfilment of conditions precedent which are set out in s 190F(5). Once engaged, the subsection itself sets out, in para (a) and para (b) the considerations which are relevant.


case_title: Dey v Victorian Railways Commissioner [1949] HCA 1 ; (1949) 78 CLR 62


case_text: It was submitted on behalf of the Applicant that the jurisprudence which has developed in this Court in relation to the striking out under s 84C of the Native Title Act of an application on the basis of a failure to comply with the requirements of that Act was relevant by analogy to the dismissal of an application pursuant to s 190F(6). That jurisprudence, of which Williams v Grant [2004] FCAFC 178 and Bodney v Brophy [2004] FCAFC 226 are exemplars at intermediate appellate level, evidences an application in the particular context of the dismissal of a native title application, of the reticence which customarily attends the summary dismissal of a proceeding under a rule such as, in this Court, O 20 r 4 of the Federal Court Rules , having regard to root authorities on the subject such as General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 130 and Dey v Victorian Railways Commissioner [1949] HCA 1 ; (1949) 78 CLR 62 at 91. 50 Part 7 was inserted into the Native Title Act by the 1998 Amendment Act . In Donnelly for The Wahlabul People v Registrar National Native Title Tribunal [2000] FCA 1330 at [6] , Hely J remarked of the claim registration regime introduced by Pt 7 that: 6 The registration test is not a screening mechanism for access to the Federal Court. A claim which is not registered may proceed to determination in the Court. But when a claim is on the Register the applicants are afforded significant procedural rights, including the right to be consulted upon, or to comment, on specific classes of future acts, and the right to negotiate over the grant of mining tenements or compulsory acquisition of the land. Given those statutory benefits, the purpose of the registration test is to ensure that only those claims with merit are registered. Strictly, even after the amendments made by the Technical Amendments Act , it remains true that the registration test found in Pt 7 is "not a screening mechanism for access to the Federal Court" (my emphasis). That is so if for no other reason than that satisfaction of the registration test is not a condition precedent to the ability to file in the Court an application for determination of a native title claim. However, the presence now of s 190F(6) in the Native Title Act and the particular occasion for its engagement provided by s 190F(5) does indicate that satisfaction of the registration test has ramifications for whether an application should be allowed to remain on the Court's list. Further, given that the Act confers the choice of a full right of review by the Court of the registration refusal decision and vests in the Court a discretion as to whether the application should be dismissed, that the registration decision is initially made by an administrative official is not indicative of an impermissible interference by the Executive with the exercise of the judicial power of the Commonwealth. It is s 190F(6) which provides the "screening mechanism".


case_text: The Delegate commenced her consideration of whether the application's factual basis supported the assertions set out in subparas 190B(5)(a) to (c) by reminding herself of what Mansfield J had said of s. 190B(5) of the Native Title Act in Northern Territory v Doepel [2003] FCA 1384 ; (2003) 133 FCR 112 at 120, [17] : Section 190B(5) is carefully expressed. It requires the Registrar to consider whether the "factual basis on which it is asserted" that the claimed native title rights and interests exist "is sufficient to support the assertion". That requires the Registrar to address the quality of the asserted factual basis for those claimed rights and interests; but only in the sense of ensuring that, if they are true, they can support the existence of those claimed rights and interests. In other words, the Registrar is required to determine whether the asserted facts can support the claimed conclusions. The role is not to test whether the asserted facts will or may be proved at the hearing, or to assess the strength of the evidence which may ultimately be adduced to establish the asserted facts. I note that this particular passage from Doepel's Case was recently expressly approved by the Full Court in Gudjala People # 2 v Native Title Registrar [2008] FCAFC 157 (French, Moore and Lindgren JJ) at [82]. The emphasis evident in the passage quoted is that which the Full Court gave to those words in the Gudjala People # 2 Case. For reasons which will become apparent, it will be necessary later to return to the Full Court's reasons in the Gudjala People # 2 Case. 32 A noteworthy and commendable feature of the submission made by the Applicant's solicitor and of the supporting affidavit evidence was their candour. It was stated in the Applicant's written submission: The Applicant has not yet sought to again amend the Application since the date of the registration test decision. However such a course of action has not been dismissed by the Applicant. The Applicant cannot properly consider its position in this regard until such time as there is further anthropological research undertaken in respect of the claim. The Applicant apprehended that there were two primary reasons why the claim had failed the registration test. As put in the written submission, these were submitted to be: (a) The initial decision of Justice Dowsett in The Gudjala People # 2 v Native Title Registrar [2007] FCA 1167 was the applicable law at the time of the registration test.. The requirements for registration testing as enunciated in that decision (particularly those as apply to s 190B(5)(a) and (b)) have been softened somewhat by the recent full court decision in that matter. (b) There was a lack of material placed before the registration test delegate such that would allow her to satisfy herself as to the requirements of a factual basis to the claim as required by s 190B(5)(c). [sic] 33 Regard to the Delegate's reasons confirms a reference by her to the judgement of Dowsett J in The Gudjala People # 2 v Native Title Registrar in the course of her consideration of the factual basis for the assertions described in s 190B(5)(a) and (b), but not in her consideration of s 190B(5)(c). His Honour delivered judgment in that case on 7 August 2007. There was delay in the institution of an appeal against his Honour's decision. Further, the appeal was not heard until 14 May 2008, i.e. after the Delegate had made her decision. On 27 August 2008 the Full Court allowed the appeal. At the time when she reached her decision reference by the Delegate to the judgment of Dowsett J in The Gudjala People # 2 v Native Title Registrar was both understandable and appropriate. 34 My assessment of why, having regard to the Delegate's reasons, she decided not to accept the claim for registration accords with that of the Applicant's solicitor. 58 The Applicant's submission, it may be recalled, contended that the Full Court's decision in the Gudjala People # 2 case (supra) had "softened somewhat" the requirements for registration testing (particularly in relation to s 190B(5)(a) and (b) of the Native Title Act ). The relevance of this contention was not developed in the submission. 59 In the Gudjala People # 2 case (supra, at [90] to [92] ) the Full Court offered the following guidance as to the inter-relationship between s 62 of the Native Title Act , which relevantly governs the material to be contained in a claimant application such as the present and the consideration of a claim for registration for which s 190A of that Act provides and the ramifications of that inter-relationship in terms of satisfaction by the Registrar or the NNTT or the Court on review that the conditions in s 190B of the Act are or are not met. [90] A convenient starting point, in considering the correctness of his Honour's approach, is to consider the interaction between s 62 and s 190A in the terms they were in at the time the application was lodged. The former provision prescribes what an applicant must do to commence an application. The latter provision establishes a statutory regime under which the Registrar of the Tribunal assesses the application to determine whether it should be accepted. It is tolerably clear that what the assessment entails is informed by what is required of an applicant to commence an application. Indeed, there is no reason to doubt that this statutory scheme contemplates that it would be open to the Registrar to accept an application based on the application, including the accompanying affidavit, without having regard to other information of the type referred to in s 190A(3). Accordingly, the statutory scheme appears to proceed on the basis that the application and accompanying affidavit, if they, in combination, address fully and comprehensively all the matters specified in s 62 , might provide sufficient information to enable the Registrar to be satisfied about all matters referred to in s 190B. This suggests that the quality and nature of the information necessary to satisfy the Registrar will be of the same general quality and nature as the information required to be included in the application and accompanying affidavit. Of course, if an applicant fails to fully and comprehensively furnish the information required by s 62 then there is a risk that the Registrar will not accept the claim although that risk is ameliorated by the power of the Registrar to consider information additional to that contained in the application, including documents (other than the application) provided by an applicant: see s 190A(3)(a). [91] What then is the nature and quality of the information required by s 62? In substance, s 62(1) requires that the accompanying affidavit must contain evidence that the applicant believes the claimed rights have not been extinguished, believes none of the claimed area is covered by an entry in the Register, believes all the statements made in the application are true and that the applicant is authorised to make the application. The application must contain the details specified in s 62(2) and may contain details of the matters referred to in s 62(1)(c). There is an obvious link between the requirement that the evidence of the applicant include a statement that the applicant believes that all the statements in the application are true and the requirement that the application contain the details specified in s 62(2) together with the identification of the details in that subsection. [92] Of central importance in this appeal are the details specified by s 62(2)(e) , namely details which constitute a general description of the factual basis on which it is asserted that the native title rights and interests claimed existed and, in particular, the matters referred to in ss 62(2)(e) (i), (ii) and (iii). Those details are in aid of the description, with some particularity, required by s 62(2)(d) of the asserted native title rights and interests. The fact that the detail specified by s 62(2)(e) is described as "a general description of the factual basis" is an important indicator of the nature and quality of the information required by s 62. In other words, it is only necessary for an applicant to give a general description of the factual basis of the claim and to provide evidence in the affidavit that the applicant believes the statements in that general description are true. Of course the general description must be in sufficient detail to enable a genuine assessment of the application by the Registrar under s 190A and related sections, and be something more than assertions at a high level of generality. But what the applicant is not required to do is to provide anything more than a general description of the factual basis on which the application is based. In particular, the applicant is not required to provide evidence of the type which, if furnished in subsequent proceedings, would be required to prove all matters needed to make out the claim. The applicant is not required to provide evidence that proves directly or by inference the facts necessary to establish the claim. (Emphasis added). 60 The Full Court observed (supra, at [93]) that, "[We] think there are observations of the primary judge in his reasons which suggest that his Honour approached the material before the Registrar on the basis that it should be evaluated as if it was evidence furnished in support of the claim. If, in truth, this was the approach his Honour adopted, then it involved error." This observation though did not form the basis upon which the appeal in the Gudjala People # 2 case was allowed. The appeal was allowed on the basis of an error perceived by the Full Court in the way that learned trial judge had evaluated and come to discount the report of an expert anthropologist, Mr Hagen which formed part of the application for determination of native title. That evidence had been criticised or in many respects rejected on the basis that it "provides opinions and conclusions rather than any alleged factual basis for such opinions and conclusions or for the claim". 61 That was held to be in error for two reasons. It was inconsistent with the position under the Evidence Act 1995 (Cth) in which a "basis rule" requiring facts upon which an expert opinion or conclusion is based to be established before that opinion or conclusion is admissible does not prevail. Rather, under that Act, an absence of establishment of such facts may diminish the weight to afford that opinion or conclusion. Further, it ignored the position that expert anthropological evidence may not necessarily be opinion evidence at all but rather be direct evidence of the anthropologist's observations and thus admissible in the ordinary course. Even though Mr Hagen's report did not fall for consideration by reference to questions of admissibility that would arise on a trial of the application, the Full Court (supra, at [96]) considered that his Honour's erroneous conception "affected his approach in assessing the matters required to be considered by s 190B(5)". 62 Certainly, in evaluating for the purposes of s 190F(6)(a) of the Native Title Act the prospect of a different outcome an amended application was considered by the Registrar, it is necessary to make that evaluation informed by what was said by the Full Court in the Gudjala People # 2 case, particularly in the parts I have emphasised in the passage from the Full Court's judgement quoted above 63 Even though, by the time when a show cause proceeding under s 190F(6) is conducted, the occasion for the review of an adverse registration decision will have passed, I am prepared to accept that, for the purposes of s 190F(6)(b), an "other reason" might be found for not dismissing an application in circumstances where later judicial authority in another case disclosed that the Registrar's approach to whether the conditions in s 190B had been satisfied had been overly rigorous. 64 Even allowing for such matters, it seems that the Applicant acknowledges that in its present form the application is wanting in detail, especially in the provision of a factual basis for an assertion that the native title claim group have continued to hold the native title in accordance with acknowledged traditional laws (s 190B(5)(c)). It is not clear to me, having regard to what I have regarded as key passages in the Delegate's reasons and quoted above, that her conclusions in relation to s 190B(5) were wholly attributable to the influence of decision of Dowsett J in the Gudjala People # 2 case. In the absence of a more developed and particularised submission as to the ways in which, having regard to her reasons, his Honour's reasons for judgment in the Gudjala People # 2 case impacted upon the Delegate's reasons and how the outcome may have differed in light of the observations of the Full Court further consideration of this subject is not, in my opinion, warranted. 65 It was further submitted on behalf of the Applicant that the State was aware of the status of the application. 66 It is relevant to note that the State has not moved under s 190F(6) to strike out the application but neither is it necessary that it do so. The Court is empowered under this sub-section to dismiss an application of its own motion. That may perhaps evidence a recognition by the Parliament that, even where the claim made in an application has proved incapable of furnishing, even at the registration stage, a factual basis for the assertions mentioned in s 190B , a respondent body politic may be unable or unwilling to seek dismissal of that application. If so, that recognition is unarticulated in secondary materials.


case_text: As to the factual basis for the assertion in s 190B(5)(c) of the Native Title Act , the Delegate stated, inter alia: The reasons for my decision here and at ss 190B(5)(a) and (b) are closely linked. I am not satisfied that there is a sufficient factual basis to support the assertion that native title rights and interest of the claim group exist because I am not satisfied that there is a sufficient factual basis to support the assertion that the laws and customs acknowledged and observed by that group are 'traditional', in the Yorta Yorta sense. I have formed this view due to the lack of information I have been given about the existence of a society at sovereignty and moreover, the removal of two of the three apical ancestors from the application area. I draw on the statements I considered under ss 190B(5)(a) and (b) with respect to the removal of the two of the apical ancestors from the application area, namely, Emily Underwood and James White and their respective descendants. Attachment F goes further it talks of James White and his family being removed to the Palm Island settlement in 1920, with the members of this family returning to live permanently on the claim area in the 1980s. It also said in Attachment F that 'once it was possible (from the 1970s onwards) to move back to the Townsville [sic] many descendants of the Disapora community did so'. The information speaks of James White, but also Ada Underwood's descendants living 'a long way away for several generations' (from page 7 of the report authored by Mr Heijm). I consider that these 50 to 60 years represent a significant break in the continuity of observance and acknowledgement of the law and customs of the group. In light of this information, it is not possible that I can be satisfied that there is a sufficient factual basis to support the assertion that the native title claim group has continued to hold its native title rights and interests by acknowledging and observing traditional laws and customs in a substantially uninterrupted way. And as reasoned above, I am not satisfied that the factual basis provided shows that the laws and customs are 'traditional'. The Delegate's reference to "Yorta Yorta" in the passage quoted is a reference to Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 ; (2002) 214 CLR 422. 30 As to s 190B(6) of the Native Title Act , the Delegate was not satisfied that there was a sufficient factual basis to support the assertion that the native title rights and interests claimed in the application could be established, prima facie . 31 In respect of s 190B(7) of the Native Title Act , the Delegate stated: In accordance with my reasoning at ss 190B(5) and (6), I cannot be satisfied that at least one member of the native title claim group currently has or previously had a traditional physical connection with any part of the land or waters covered by the application. This is the case as I am not of the view that the requirement of 'traditional' has been established in this application. I accept that Ms George currently has a physical connection with the application area but I am not able to establish that it is a 'traditional' connection in the Yorta Yorta sense.


case_text: The Delegate commenced her consideration of whether the application's factual basis supported the assertions set out in subparas 190B(5)(a) to (c) by reminding herself of what Mansfield J had said of s. 190B(5) of the Native Title Act in Northern Territory v Doepel [2003] FCA 1384 ; (2003) 133 FCR 112 at 120, [17] : Section 190B(5) is carefully expressed. It requires the Registrar to consider whether the "factual basis on which it is asserted" that the claimed native title rights and interests exist "is sufficient to support the assertion". That requires the Registrar to address the quality of the asserted factual basis for those claimed rights and interests; but only in the sense of ensuring that, if they are true, they can support the existence of those claimed rights and interests. In other words, the Registrar is required to determine whether the asserted facts can support the claimed conclusions. The role is not to test whether the asserted facts will or may be proved at the hearing, or to assess the strength of the evidence which may ultimately be adduced to establish the asserted facts. I note that this particular passage from Doepel's Case was recently expressly approved by the Full Court in Gudjala People # 2 v Native Title Registrar [2008] FCAFC 157 (French, Moore and Lindgren JJ) at [82]. The emphasis evident in the passage quoted is that which the Full Court gave to those words in the Gudjala People # 2 Case. For reasons which will become apparent, it will be necessary later to return to the Full Court's reasons in the Gudjala People # 2 Case.


case_outcome: distinguished

case_text: Part 7 was inserted into the Native Title Act by the 1998 Amendment Act . In Donnelly for The Wahlabul People v Registrar National Native Title Tribunal [2000] FCA 1330 at [6] , Hely J remarked of the claim registration regime introduced by Pt 7 that: 6 The registration test is not a screening mechanism for access to the Federal Court. A claim which is not registered may proceed to determination in the Court. But when a claim is on the Register the applicants are afforded significant procedural rights, including the right to be consulted upon, or to comment, on specific classes of future acts, and the right to negotiate over the grant of mining tenements or compulsory acquisition of the land. Given those statutory benefits, the purpose of the registration test is to ensure that only those claims with merit are registered. Strictly, even after the amendments made by the Technical Amendments Act , it remains true that the registration test found in Pt 7 is "not a screening mechanism for access to the Federal Court" (my emphasis). That is so if for no other reason than that satisfaction of the registration test is not a condition precedent to the ability to file in the Court an application for determination of a native title claim. However, the presence now of s 190F(6) in the Native Title Act and the particular occasion for its engagement provided by s 190F(5) does indicate that satisfaction of the registration test has ramifications for whether an application should be allowed to remain on the Court's list. Further, given that the Act confers the choice of a full right of review by the Court of the registration refusal decision and vests in the Court a discretion as to whether the application should be dismissed, that the registration decision is initially made by an administrative official is not indicative of an impermissible interference by the Executive with the exercise of the judicial power of the Commonwealth. It is s 190F(6) which provides the "screening mechanism".


case_text: Within s 190F(6)(a), the meaning to afford the word "likely" is elusive. The judgments delivered by Bowen CJ (with whom Evatt J agreed) and Deane J in Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees' Union (1979) 42 FLR 331 in relation to the meaning of that word as it appears in s 45D of the Trade Practices Act 1974 (Cth) nicely illustrate why this is so. Sir Nigel Bowen observed (at 339-340): The word "likely" is one which has various shades of meaning. It may mean "probable" in the sense of "more probable than not" - "more than a fifty per cent chance". It may mean "material risk" as seen by a reasonable man "such as might happen". It may mean "some possibility" - more than a remote or bare chance. Or, it may mean that the conduct engaged in is inherently of such a character that it would ordinarily cause the effect specified. In Australian Telecommunications Commission v Kreig Enterprises Pty. Ltd. (1976) 27 FLR 400 Bray C.J. had to consider the meaning of the word "likely" in s. 139B of the Post and Telegraph Act 1901-1973 (Cth). The context, of course, was different. However, Bray C.J. concluded it meant "more probable than not" in that context. His Honour expressed the view that that was the natural and ordinary meaning of "likely", though he referred also to the rules of construction applicable where the statute being interpreted is a penal statute or one which, as in the case of s. 139B, imposed an additional liability beyond the liability in tort. It was suggested by Joske J. in Trade Practices Commission v Total Australia Ltd. (1975) 24 FLR 413 that "likely" in s. 47 (5) of the Trade Practices Act was equivalent to "calculated" and he referred to Thurley v Hayes [1920] HCA 28 ; (1920) 27 CLR 548 , at p 551 . However, in that case "calculated" was interpreted to mean "likely" in order to rid the word of its overtones of intention. ... The circumstances to which s. 45D may apply are so various that I hesitate to place a gloss on the section by preferring one meaning of "likely" rather than another for the determination of this particular case. It is unnecessary to do so, because I have formed the view that whichever meaning is adopted the evidence leads me to the conclusion that the likelihood of substantial loss or damage has been established. Mr Justice Deane observed (at 346-347): The word "likely" can, in some context, mean "probably" in the sense in which that word is commonly used by lawyers and laymen, that is to say, more likely than not or more than a fifty per cent chance ("an odds-on chance", per Lord Hodson in Koufos v. C. Czarnikow Ltd. [1969] 1 AC 350, at p 410 and see, as to the meaning of the word "probable", Eggleston Evidence, Proof and Probability (1978), p. 10 et seq). It can also, in an appropriate context, refer to a real or not remote chance or possibility regardless of whether it is less or more than fifty per cent. When used with the latter meaning in a phrase which is descriptive of conduct, the word is equivalent to "prone", "with a propensity" or "liable". When so used, it is sometimes equated with the concept of foreseeability in the law of negligence (see, for example, Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty. Ltd. (Wagon Mound No. 2) [1967] 1 AC 617, at pp 634-635 ; Callaghan v. Wm. C. Lynch Pty. Ltd. (1962) 79 WN (NSW) 830 , at p 835 ). Thus, if I fire a rifle through drawn curtains into a quiet lane in a country village, it is not likely, in the sense of more likely than not or an odds-on chance, that I will injure anyone. It would, however, be difficult to deny that there was a real chance or possibility (or likelihood in that sense) that an occasional passer-by would be wounded by the bullet. Plainly, the act of firing a rifle through drawn curtains into a lane used by pedestrians would be an act which was, in the circumstances, prone or liable (likely in that sense) to cause injury to a passing pedestrian. In Australian Telecommunications Commission v. Krieg Enterprises Pty. Ltd. (1976) 27 FLR 400, Bray C.J., after an instructive consideration of relevant authorities, expressed the view that the ordinary and natural meaning of the word "likely" is synonymous with the ordinary and natural meaning of the word "probable" and both words mean that there is an odds-on chance of the thing happening. His Honour added that statutes containing the words have usually been construed that way, particularly so where the statute is a penal statute or is imposing an additional liability in tort. This view, if accepted, would lead to the conclusion that, prima facie, the word "likely" in s. 45D (1) means probably in the sense of more likely than not. While dictionary definitions and examples of judicial and lay usage can be adduced to offer strong support for that view, I am unable to accept that likely is synonymous with "more likely than not" or that if there is a 49.9 per cent chance of an event occurring it would ordinarily be denied that it was likely (or "quite likely") that the event would occur. Nor does it appear to me that there is a presumption that, in a legislative provision proscribing conduct that is likely to cause loss or damage to another, the legislative intent was that conduct which had a 49.9 per cent chance of causing such damage was to be outside the proscription. 44 Thus, depending upon the context in which it appears, "likely" can mean "more probable than not" or it can mean "some possibility, more than a remote or bare chance". Tillmanns Butcheries and, in turn, Australian Telecommunications Commission v Kreig Enterprises Pty. Ltd , referred to in each of the substantive judgments delivered in Tillmanns Butcheries, demonstrate the importance of context in the determination of the meaning of the word. For example, that there was a reticence on the part of this Court in Tillmanns Butcheries to confine the meaning of the word to "more probable than not" in the context a provision directed in the public interest to the proscription of a form of behaviour in trade or commerce considered by Parliament to be undesirable is, with respect, readily comprehensible.


case_text: The occasion for affording the word "likely" the meaning "more probable than not" in a provision directed to the dismissal of a native title application without a hearing on the merits of that application is less compelling. It is true that the occasion for the exercise of the dismissal power in s 190F(6) of the Native Title Act may arise after the Registrar's registration decision has either been administratively reviewed on the merits by the NNTT or reviewed by this Court. In the latter form of review the Court may make such decision in respect of issues of fact and law on the material then available as will do justice: Western Australia v Strickland [2000] FCA 652 ; (2000) 99 FCR 33 (Full Court). Yet the focus of these review alternatives remains the Registrar's registration decision, not a determination of the merits of the native title claim made in the application. 46 Regard pursuant to s 15AB of the Acts Interpretation Act 1901 (Cth) to secondary materials concerning the Bill which became the Technical Amendments Act offers no assistance either in the preferable meaning to afford the word "likely" in s 190F(6)(a) or, for that matter, in the ascertainment of the purpose of the power conferred on the Court by the sub-section. 47 The reference in the explanatory memorandum to the clause which became s 190F(6) is nothing more than a paraphrase of the provision. The Ministerial Second Reading Speech (Commonwealth Parliamentary Debates, House of Representatives, 29 March 2007, p. 1) in respect of the Bill which became the Technical Amendments Act is brief, the then Attorney remarking generally of the amendments proposed in that Bill, "While these amendments are minor and technical in nature, they will substantially improve the workability of the Native Title Act ." There is no reference to the proposed empowerment of the Court to dismiss an application as a sequel to a decision by the Register not to accept for registration the claim made in it and after exhaustion of review remedies in respect of that decision. 48 Amendments to that Bill were proposed in the Senate following a report by the Legal and Constitutional Affairs Committee of that House. Both in that committee's report and in Parliamentary debates one finds reference to the report of a review commissioned by the then Attorney-General of native title claims resolution processes by two members of the Queensland Bar, Mr Hiley RFD, QC and Dr Levy RFD (Hiley and Levy, Native Title Claims Resolution Review, Commonwealth of Australia, released on 31 March 2006). The report of that review was made public but it was not tabled in the Parliament. Further, the extent of its influence on the presence in the Native Title Act of what is now s 190F(6) is not made clear either in an explanatory memorandum or the Second Reading Speech. In these circumstances, I do not consider that it would be appropriate to refer to that review report for statutory construction purposes. 49 A study of secondary materials confirms what a perusal of the 2007 Amendment Act and the Technical Amendments Act would in any event suggest, which is that the two Acts were the culmination of an endeavour to address inadequacies perceived by the Parliament in native title law and practice under the Native Title Act even after major amendments were made to that Act by the Native Title Amendment Act 1998 (Cth) (1998 Amendment Act).


case_title: Williams v Grant [2004] FCAFC 178


case_outcome: referred to

case_text: This is an appeal from a judgment of a Federal Magistrate given on 24 January 2006 dismissing the appellant's application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"): see SZDPY v Minister for Immigration and Multicultural Affairs and Indigenous [2006] FMCA 10. The Tribunal affirmed the decision of the respondent's delegate to refuse the appellant a protection visa (class XA). 2 According to the Tribunal, the appellant is a citizen of India and from a Hindu family. His parents are participants in religious activities and supporters of a Hindu political party. The appellant arrived in Australia on 8 December 1998. While in Australia the appellant converted to Islam. On 15 March 2001 the appellant applied for a protection visa claiming to have a well-founded fear of persecution if he returned to India for reasons of religion. 3 In his protection visa application, the appellant gave details of his education and work history. Information as to his education took the form of a list of the institutions he had attended and the dates of his attendance. The institutions listed were the appellant's high school, the National Institute of Sales and Marketing in Delhi and the Sydney International College of Business. He also listed his employers, dates of employment and salaries.


case_text: Before the Federal Magistrate, the appellant's primary argument was that the Tribunal, by considering the possibility of relocation and concealing his whereabouts from relatives, was requiring him to avoid harm by acting discreetly in the practise of his religion. The appellant argued this was an error of law as identified by the High Court in S395/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473. 11 The Federal Magistrate found that the Tribunal's decision was not based on a finding that the appellant would be required to modify his behaviour. Rather, his Honour held that the Tribunal had determined that wherever the appellant chose to live in India he could continue the normal practice of his religion without fear of persecution. Also, the Federal Magistrate concluded that the Tribunal's finding about relocation was an alternate ground relating to the appellant's fear of coming to serious harm on account of his conversion. On this view, the Tribunal had independently concluded that the appellant's fears of persecution relating to his conversion were not well-founded. The Federal Magistrate concluded that while "[i]t may be possible to interpret the Tribunal's question [that he could move and not tell his relatives] as involving the proposition that the appellant could modify his behaviour, it was not the basis of the tribunal's findings in its reasons". 12 The first respondent also argued before the Federal Magistrate that the appeal was barred by Anshun estoppel. Having found on other grounds that the appeal should be dismissed, the Federal Magistrate did not need to consider this ground. 13 In a notice of appeal dated 21 February 2006 the appellant submitted two grounds of appeal. The first ground challenged the Federal Magistrate's finding that Tribunal's decision did not necessitate any change of behaviour by the appellant in the normal practice of his new religion, particularly, "in circumstances where the change in location would require the appellant to be discreet in terms of his religious and family history". The second ground of appeal was that the Federal Magistrate erred in finding that the relocation finding was not the primary basis of the Tribunal's decision. At the hearing of the appeal, counsel for the appellant abandoned both these grounds of appeal and relied instead on a new ground set out in an amended notice of appeal filed on 18 May 2006. 14 This new ground was that the Tribunal breached s 424A of the Act. The appellant now claims that the Tribunal erred when it "did not disclose certain adverse information as required by s 424A(1)" and that this information was ... "[t]he educational history of the [appellant] provided in his application for a protection visa".


case_text: The appellant submitted that a breach of s 424A is jurisdictional error whenever the Tribunal fails to disclose information that forms part of its reasons. Citing SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 (" SZEEU ") at [158] per Weinberg J and [225] per Allsop J, the appellant argued that there is error even where the information concerned only a minor and subsidiary part of the reasons. 17 The appellant argued that the education information provided in the original protection visa application was not subject to the exception in s 424(3)(b) of the Act. Moreover, the appellant submitted that the mere adoption at the hearing of any information contained in the visa application would not bring that information within the s 424(3)(b) exception. 19 The appellant relied on SZEEU at [17] and [20] per Moore J and NAZY v MIMIA [2005] FCA 744 at [37] per Jacobson J for the proposition that information does not fall within the exception of s 424A(3)(b) unless it is put forward as evidence in chief and the applicant is aware of the significance of the information. Thus, in the appellant's view, his brief responses to leading questions regarding his education in India did not mean this was information given for the purpose of the application for review under s 424A(3)(b). 21 In support of his application to amend his notice of appeal the appellant noted that SZEEU had not been delivered at the time of the hearing before the Federal Magistrate. The appellant suggested that it is unlikely that any further evidence would have been led below if the new ground had been argued there. Moreover, the appellant suggested that any prejudice to the first respondent could be cured by allowing her to tender a transcript of the Tribunal hearing. 22 The first respondent submitted that the Court should not grant leave to amend the notice of appeal. The first respondent noted that although SZEEU had not been decided at the time of the hearing before the Federal Magistrate, SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 and Al Shamry had been decided at that time. Further, the first respondent argued that leave to amend should be refused because the new ground of appeal was futile. 25 The first respondent contrasted this case to the facts of SZEEU . In SZEEU , the Court had considered the case of SZBMI who, in an airport interview upon arrival, had provided information concerning his flight from his home country. Before the Tribunal, he had affirmed that this statement was accurate. The Court, at [20] per Moore J and [157] per Weinberg J, held that the adoption of the earlier statement at the hearing before the Tribunal did not render it information provided by him in his application for review. The first respondent argued that this case is different because, rather than adopting a large statement in which a specific item of information was contained, the appellant had specifically discussed his educational background with the Tribunal. According to the first respondent, it followed that the information fell within the exception of s 424A(3)(b). 26 Although it was discussed before the Federal Magistrate, neither party raised the issue of Anshun estoppel in this Court. 29 The Court in SZEEU accepted that the word 'information' in s 424A refers to "knowledge of relevant facts or circumstances communicated to or received by the Tribunal": see SZEEU at [23]-[25] per Moore J, at [94], [157], [171] per Weinberg J and [205] per Allsop J. I accept that the Tribunal's knowledge of the educational institutions and dates of attendance and employment history set out in the appellant's visa application (referred to below as educational information) could constitute knowledge of relevant facts or circumstances communicated to or received by the Tribunal and therefore 'information' for the purposes of s 424A of the Act. It was not suggested that the Tribunal had given the applicant particulars of such information as s 424A(1) would require if it applied. 30 SZEEU contains various discussions of the expression "a part of the reason" in s 424A: see [164] per Weinberg J and [216]-[217] per Allsop J. As Allsop J said at [216], "[i]t is only necessary that the information be a part of the reason". In this case, however, the appellant has not established that the educational information set out in his visa application was "a part of the reason" for the Tribunal's decision, because other detailed information on the same subject was specifically provided to the Tribunal at the Tribunal hearing. The information given at the Tribunal hearing fell within the exclusion in s 424A(3)(b) of the Act. 31 For present purposes, I accept that the Tribunal's finding that it was reasonable for the appellant to relocate because he "is well educated and has demonstrated sufficient personal resourcefulness to enable him to settle here" was a part of the reason for the Tribunal's decision. However, consideration of the transcript of the hearing before the Tribunal makes it clear that the appellant specifically gave his educational and employment history to the Tribunal at that hearing. 32 At the hearing before the Tribunal, the Tribunal member asked questions regarding the appellant's educational and employment history. In response to the question "You came as a student did you?" the appellant explained that he had been studying business management at Sydney International College and that he had completed his studies there. He was then asked what he was studying at the time of the hearing. The appellant answered that he was studying commercial cookery at the Australian College of Hospitality. 35 It is clear that the appellant specifically provided the Tribunal with his educational details. I reject the appellant's submission that the information does not fall within s 424A(3)(b) because it was given in response to questions in the nature of 'cross-examination'. The Tribunal's questions were specific and arose, naturally enough, from the appellant's visa application. The appellant gave direct answers. The relevant information was simple and could be easily given in response to such questions. Further, SZEEU provides support for the proposition that where an applicant affirms a specific fact before the Tribunal that information will be covered by the exclusion in s 424A(3)(b). At [91] Moore J, with whom Weinberg J at [173] and Allsop J at [264] agreed on this issue, said: "While it appears that the Tribunal originally came to know that the appellant entered Australia on a business visa from sources other than the appellant (an inference which could be drawn from the way the letter of 4 February 2004 was framed) it is tolerably clear from the Tribunal's reasons that it discussed this fact (that the appellant had entered Australia on a business visa) with the appellant and he affirmed he had. Thus it was information comprehended by s 424A(3)(b) even though it was information also derived from an alternative source." Similar reasoning applies in this case. The appellant gave the Tribunal information concerning his educational and employment history at the Tribunal hearing, although the Tribunal had reference to the appellant's visa application in discussing some aspects of his history with him. 36 I reject the appellant's submission that at the Tribunal hearing he merely adopted the education information in his visa application. This was not a case where an applicant merely adopted the contents of a document as a whole and in so doing was said to have conceded the correctness of items of information within it: contrast SZEEU at [15] and [17] per Moore J. It may be recalled that in SZEEU the Full Court held that the applicant's global adoption of an earlier statement (which contained the 'flight information') did not bring the flight information before the Tribunal for the purposes of s 424A(3)(b) of the Act. The present case is entirely different from the 'flight information' in SZEEU . It is plain enough from the transcript of the Tribunal hearing that the appellant separately and specifically gave detailed information concerning his education and employment to the Tribunal. It was open to the Tribunal on the basis of this information, which clearly fell within s 424A(3)(b), to find that the appellant was well-educated and resourceful so as to make relocation reasonable. Accordingly, the appellant's proposed new ground, which asserts breach of s 424A(1) of the Act, is untenable. 37 I would refuse leave to amend the notice of appeal and, since the appellant advanced no other ground that requires consideration, I would dismiss the appeal instanter. I certify that the preceding thirty seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate: Dated: 25 May 2006 Counsel for the Applicant: Mr A Slattery Counsel for the Respondent: Mr S Hay Solicitor for the Respondent: Clayton Utz Date of Hearing: 24 May 2006 Date of Judgment: 25 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/627.html


case_text: At the hearing, the appellant conceded that, at the hearing before the Tribunal, he had done more than simply adopt information concerning his educational experiences in Australia. This was because, in response to the Tribunal's questioning, the appellant had actively given details of his education in Australia. However, the appellant distinguished information about his education in India from that about his education in this country. In the appellant's submission, in relation to his Indian education, he did no more than adopt the information provided earlier in his protection visa application. The appellant noted that his answers regarding his education in India were in response to leading questions from the Tribunal where, in effect, he was asked to do no more than confirm the details in his original application in March 2001. Further, the appellant noted that the Tribunal had not told him of the potential significance of this information for its decision-making. In this connection, he referred to Minister for Immigration and Multicultural and Indigenous Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 (" Al Shamry ") at [40]-[41] per Merkel J. 22 The first respondent submitted that the Court should not grant leave to amend the notice of appeal. The first respondent noted that although SZEEU had not been decided at the time of the hearing before the Federal Magistrate, SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 and Al Shamry had been decided at that time. Further, the first respondent argued that leave to amend should be refused because the new ground of appeal was futile.


case_title: NAZY v MIMIA [2005] FCA 744

case_text: The appellant relied on SZEEU at [17] and [20] per Moore J and NAZY v MIMIA [2005] FCA 744 at [37] per Jacobson J for the proposition that information does not fall within the exception of s 424A(3)(b) unless it is put forward as evidence in chief and the applicant is aware of the significance of the information. Thus, in the appellant's view, his brief responses to leading questions regarding his education in India did not mean this was information given for the purpose of the application for review under s 424A(3)(b).


case_title: ACCC v Collings Construction (Unreported, NSWSC, 2 July 1997)