case_text: it is common ground between the parties that the principles articulated by Hely J in St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360 ; (2004) 211 ALR 147 with respect to the operation of O 15A r 6 are applicable in these proceedings. These principles are as follows: (a) The rule is to be beneficially construed, given the fullest scope that its language will reasonably allow, with the proper brake on any excesses lying in the discretion of the Court, exercised in the particular circumstances of each case; (b) each of the elements prescribed in subparas (a), (b) and (c) of the rule must be established. Preliminary discovery cannot itself be used to remedy deficiencies in the satisfaction of the conditions themselves; (c) the test for determining whether the applicant has "reasonable cause to believe", as required by subpara (a), is an objective one. Further, the words "or may have" cannot be ignored. The applicant does not have to make out a prima facie case; (d) belief requires more than mere assertion and more than suspicion or conjecture. Belief is an inclination of the mind towards assenting to, rather than rejecting a proposition. Thus it is not sufficient to point to a mere possibility. The evidence must incline the mind towards the matter or fact in question. If there is no reasonable cause to believe that one of the necessary elements of a potential cause of action exists, that would dispose of the application insofar as it is based on that cause of action; (e) whilst uncertainty as to only one element of a cause of action might be compatible with the "reasonable cause to believe" required by subpara (a), uncertainty as to a number of such elements may be sufficient to undermine the reasonableness of the cause to believe; (f) the question posed by subpara (b) of the rule is not whether the applicant has sufficient information to decide if a cause of action is available against the prospective respondent. The question is whether the applicant has sufficient information to make a decision whether to commence proceedings in the Court. Accordingly, an applicant for preliminary discovery may be entitled to discovery in order to determine what defences are available to the respondent and the possible strength of those defences, or to determine the extent of the respondent's breach and the likely quantum of any damages award; (g) whether an applicant has "sufficient information" for the purposes of subpara (b) also requires an objective assessment to be made. The subparagraph contemplates that the applicant is lacking a piece (or pieces) of information reasonably necessary to decide whether to commence proceedings; (h) it is no answer to an application under the rule to say that the proceeding is in the nature of a "fishing expedition". Indeed O 15A r 6 "expressly contemplates" what once might have been castigated as "fishing". As Burchett J commented in Paxus Services Ltd v People Bank Pty Ltd [1990] FCA 500 ; (1990) 99 ALR 728 at 733, the rule is: ... designed to enable an applicant, in a situation where his proof can rise no higher than the level the rule describes, to ascertain whether he has a case against the prospective respondent ... The applicant's case invoking the jurisdiction of the Court pursuant to O 15A r 6 is not assisted by a number of difficulties in respect of its claim. So: As became clear during Mr Ashton's submissions, the applicant's historical trading, profit and loss figures for 2007, found at p 151 of Mr Roetger's affidavit, and contrasted by Counsel for the applicant in his submissions with the earlier 2006 financial information, actually represented figures for only half of the 2007 financial year. The only explanation given by Counsel for the applicant for this error was that perhaps he had not analysed the 2007 figures as accurately as he could have, but that in any event turnover for that period still appeared to be less than $2 million whereas representations had been made by Mr Cartan and Ms Cooley that the turnover should be $3 million (TS p 40 ll 19-20). However: in my view this inaccuracy in analysis of the applicant's trading position goes to the loss claimed by the applicant, and whether the applicant actually apprehends the basis of its potential claim (if any) against the respondents. Indeed Mr Roetger in his affidavit deposes that: I strongly believe that the 2006 financial records as provided to me and upon which I relied in causing the applicant company to enter into the subject series of transactions, are incorrect. Given the fact that the subject business was carried on by the same people including management under virtually the same conditions, and returned a gross income of only $818,986 for the 2007 year , resulting in a $368,360 trading loss, the only explanation that I believe exists is that the 2006 accounts were incorrect and wrong. (para 41) In light of Mr Ashton's submission as to the 2007 accounts annexed to Mr Roetger's affidavit I can ascribe no value to this statement with respect to O 15A r 6. this in turn raises the question whether, objectively, there is reasonable cause to believe that the applicant has or may have the right to obtain relief in this Court from the respondents or any of them; in any event, as submitted by Mr Ashton, there appears confusion in the applicant's submissions in relation to the financial statements of the applicant between the level of turnover of the applicant and its profit and loss position, which again goes to the issue of whether, objectively, there is reasonable cause to believe that the applicant has or may have the right to obtain relief. Evidence upon which the applicant relies as a basis for its belief that false representations were made to the applicant with respect to the 2006 figures appeared confined to Mr Roetger's "investigations" (affidavit of Carl Roetger para 22). Without more substance, the unexplained investigations of a director of the applicant are not "evidence (which) must incline the mind towards the matter or fact in question" as explained by Hely J in St George Bank [2004] FCA 1360 ; (2004) 211 ALR 147. To the extent that the applicant claims that the balance sheet and profit and loss statement for the first respondent as supplied to him by the third and fourth respondents (exhibited to Mr Roetger's affidavit at CER-16 and found on pp 206-210 of the affidavit) were false, I note that those documents are nonetheless identical to the balance sheet and profit and loss statement of the first respondent in the records of Mr Walsh and annexed to Mr Walsh's affidavit as JW2 (Mr Walsh's affidavit pp 39-43). While this correspondence of documentation is by no means conclusive in the absence of a substantive hearing, it reflects upon the applicant's claim that there is reasonable cause to believe that the applicant may have a right to relief in respect of falsified accounts supplied by Mr Cartan and Ms Cooley . Evidence produced by the respondents demonstrated that Mr Walsh had in fact provided a number of documents requested by the applicant. More specifically, evidence before the Court demonstrated that Mr Walsh: advised the applicant that his firm did not hold any relevant original documentation in his office, but that he could provide the applicant with electronic copies of Financial Statements and Income Tax Returns upon request (exhibit CER-13 affidavit of Carl Roetger sworn 2 July 2009); and sent by letter of 4 December 2009 to the applicant's solicitors a letter enclosing the Financial Statements and Income Tax Return for the year ended 30 June 2007 for the first respondent and Mr Cartan (exhibit JW3 affidavit of Joe Walsh sworn 22 July 2009). I note in any event that copies of the first respondent's financial statements and tax returns for the years ended 30 June 2005 and 30 June 2006 are annexed to Mr Walsh's affidavit sworn 22 July 2009. In my view these difficulties undermine the applicant's claim such that the jurisdiction of the Court with respect to O 15A r 6 is not invoked. I am conscious of the beneficial construction the courts place on O 15A r 6, the fact that the applicant is not required to establish a prima facie case, and the fact that in this case the applicant claims that it has suffered significant losses in respect of the business it acquired from the respondents and for which it has paid "good money" (TS p 17 l 28). Further, I note that, notwithstanding the provision by Mr Walsh in his affidavit of the 2005 and 2006 financial statements of the first respondent, Mr Walsh did so notwithstanding apparent instructions from Mr Cartan that no material beyond the 2007 financial statements be provided to the applicant (affidavit of Joe Walsh para 16). However as found in St George Bank [2004] FCA 1360 ; (2004) 211 ALR 147 , confirmed by the Full Court more recently in Echo Tasmania Pty Ltd v Imperial Chemical Industries PLC [2008] FCAFC 58 at [43] and Apache Northwest Pty Ltd v Newcrest Mining Ltd [2009] FCAFC 39 at [2] and [26], each of the elements prescribed in subparas (a), (b) and (c) of the rule must be established. In light of: inadequacies and inconsistencies I have noted in the evidence advanced by the applicant supporting the existence of a cause of action; and the applicant's incorrect analysis of the 2007 trading, profit and loss figures. I am not satisfied that the applicant has demonstrated, on an objective basis, reasonable cause to believe that it has or may have the right to obtain relief in the Court from the respondents or any of them for the purposes of O 15A r 6(a). As stated by Hely J in St George Bank [2004] FCA 1360 ; (2004) 211 ALR 147 , preliminary discovery cannot itself be used to remedy deficiencies in the satisfaction of the conditions themselves. The applicant cannot substitute the application before the Court in which it seeks preliminary discovery from the first, second, third and fourth respondents, for the need to make all reasonable inquiries in accordance with O 15A r 6 and which may entail making inquiries of those same respondents prior to bringing that application. It follows that I am not prepared to make an order pursuant to O 15A r 6 in terms sought by the applicant. Freezing order The applicant seeks a freezing order against the fourth respondent only, pursuant to O 25A r 2 of the Federal Court Rules which provides: 2(1) The Court may make an order (a freezing order ), upon or without notice to a respondent, for the purpose of preventing the frustration or inhibition of the Court's process by seeking to meet a danger that a judgment or prospective judgment of the Court will be wholly or partly unsatisfied. 2(2) A freezing order may be an order restraining a respondent from removing any assets located in or outside Australia or from disposing of, dealing with, or diminishing the value of, those assets.


case_outcome: cited

case_text: The grounds of what appears to have been a joint application on behalf of both applicants before Mathews J were initially as set out in a letter or memorandum attached to the application. Summarising as best I can they set out the following propositions: 1. In making assessments the 'authorities' (which I take, for present purposes, to refer to the Tribunal) had failed to take into account an important principle stated in the Handbook published by the United Nations High Commission for Refugees. The relevant principle was that the determination of refugee status will primarily require an evaluation of the applicant's statements rather than a judgment on the situation prevailing in his country of origin. The authorities called upon to determine refugee status are not required to pass judgment on conditions in the applicant's country of origin. 2. The Tribunal failed to implement the law stated by the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379, namely: 'If a person gives a coherent credible account of his experience suffered which bring him within the definition of refugee, that at least raises a prima facie case and if there are any matters to the contrary the authorities should put them to the person for his response.' This was in fact a quotation from counsel's submissions in the Chan case and not part of the judgment of the High Court. 3. According to the 1951 Refugees Convention (the Convention) 'a fear of persecution is 'well-founded' if there is a real chance that the refugee will be persecuted if he returns to his country of nationality.' Where an applicant establishes that there is a real chance of persecution then the fear is 'well-founded'. The Tribunal misconceived the Convention by ignoring the applicants' claims and evidence. In this case the applicants had claimed to have suffered discrimination, beatings, numerous threats, intimidation for Convention related reasons and to have been deprived of civil and political rights of protection. 7 The memorandum backing the application set out another group of contentions related to persecution and the application of Article 33 of the Convention. Definitions of persecution and discrimination were set out. Reference was made to the circumstances in which persecution inflicted by non-State agents is 'knowingly tolerated by authorities when they refuse or prove unable to order effective protection'. It was said to be obvious that the persecution suffered by the applicants in their country of former residence was related to Convention grounds. It was said to be obvious that a person who had suffered such persecution would have a well-founded fear of persecution within the meaning of the Convention. 8 It was also said in the memorandum that the Tribunal had failed to take into account another legal principle, namely, in holding that the evidence before it did not support a finding that if the applicants returned to Latvia they would face a real chance of discrimination in that country amounting to persecution. Chan's case was cited to the effect that past persecution gives rise to a presumption of future persecution. Finally it was said that the Tribunal had failed to implement 'the benefit of the doubt' provision. Having no evidence to the contrary they found the applicants had no fear of persecution.


case_text: Counsel argued that the Tribunal had erroneously held that persecution under the Convention required a course of systematic conduct aimed at an individual or a group and/or a systematic violation of human rights. This formulation was said to be contrary to the decision in Ibrahim v Minister for Immigration and Multicultural Affairs [1999] FCA 374 and contrary to the proposition that individual acts of persecution could be enough to support an inference of a well-founded fear of persecution in the future. 11 Her Honour observed that the Tribunal appeared to have accepted that the husband's fear of persecution was genuine. She cited decisions in the Federal Court which had discussed the meaning of systematic persecution. She considered the Tribunal's reasons. She noted that the mere use of the word 'systematic' could not of itself be indicative of error. Whether it was erroneously used would depend on the circumstances. Her Honour said (at [30]): 'In this case the Tribunal, earlier in its decision, had commented that in appropriate cases persecution may be indicated by single acts of oppression. It therefore cannot be said that the Tribunal was necessarily in error when it referred to "a course of systematic conduct aimed at an individual or a group". The real question is whether the Tribunal erroneously required the applicant to show that there had been a repeated course of persecutory conduct in order to meet this criterion.' Upon an analysis of the Tribunal's decision her Honour found it not to disclose any such error. 12 There was another complaint of discrimination based on language law relating to the use of the Russian language in Latvia. A fine was said to have been imposed upon the husband for failing to speak the State language in the course of business. It was submitted to her Honour by the Minister's counsel that persecution would not include the application of a legitimate law of general application. Her Honour said (at [41]): 'The application of this exception was not discussed by the Tribunal. In the light of the Tribunal's main finding on the matter it was unnecessary to do so. However this consideration provides a further basis, according to Mr Reilly, for concluding that the Tribunal's finding that the law which required that Latvian be spoken in the workplace did not constitute persecution.' She further stated (at [42]): 'This submission is, in my view, well based. However it is unnecessary in the circumstances to have resort to it. For in my opinion the Tribunal was entirely justified in finding that the fining of Latvian citizens, including the applicant, for failing to speak Latvian in the workplace is not "sufficiently serious conduct" to amount to discrimination or persecution.' 13 In relation to the wife who was said to have suffered assaults while in Latvia, her Honour said (at [30]): 'The Tribunal was not satisfied that ethnic Russians as a group were subjected to systematic or sustained human rights violations. There was "some discrimination" and "occasional violence" directed against Russians.' Her Honour found (at [30]): 'Having made this finding it was clearly open to the Tribunal to conclude, as it did, that the mere fact of being an ethnic Russian in Latvia was not sufficient to give rise to such a well-founded fear. Nor was it prepared to find that the assaults committed upon the applicant were sufficient to give rise to a well-founded fear of persecution. The Tribunal's reasoning could, as I have already commented, have been more transparently stated. However its purport was, in my view, sufficiently clear to display that, given the beneficial construction which this court is required to apply, no error has been shown.' 14 In relation to the State protection question her Honour said that (at [31]): '... the Tribunal noted that it could find no independent reports to suggest that, inter alia, "Latvian police do not protect ethnic Russians".' She construed that finding as (at [31]): '...a finding that the applicant would be able to seek the protection of the Latvian police.' And added (at [31]): ' This finding has not been challenged on appeal, nor could it be. It was clearly open for the Tribunal to reach this conclusion on the basis of the evidence before it. The independent evidence on the subject was all one way. The complaints in the applicant's statement about the police reactions to her husband's or her friend's complaints were hardly sufficient to counteract this material, despite the strength of the language she used.' For those reasons she found the first ground relied upon by the applicants had not been made out. 15 On the question whether the Tribunal had failed to observe requisite procedures it was submitted on behalf of the wife that the Tribunal had failed to make findings as to whether the attacks were inflicted for a Convention reason. Her counsel urged that the question whether she had been targeted by reason of her ethnicity went to the core of the issue of whether she had a well-founded fear of persecution and was a matter upon which the Tribunal was obliged to make a finding. 16 Her Honour accepted that the Tribunal had made no explicit finding that the attacks against the wife were perpetrated for a Convention reason. However, a reading of its decision made clear that the Tribunal accepted this to have been established. It referred to some discrimination against ethnic Russians and observed that occasionally violence is directed against them. Her Honour said (at [36]): 'It is important to note that the only evidence before the Tribunal as to acts of violence being perpetrated against ethnic Russians was that of the applicant and her husband relating to the attacks upon themselves.' She did not consider that a breach of s 430 of the Act had occurred and she dismissed the application. 17 I mention the basis upon which the matters which were put to her Honour in 1999 and the basis upon which she dismissed the applications for review because the grounds for review at that time were limited to those set out in s 476 of the Act and it might be argued that, in an application for prerogative relief, wider grounds were available particularly for breach of procedural fairness (other than actual bias which was preserved as a ground of review under the old s 476). Those grounds were precluded from the scope of judicial review under the previous regime.


case_text: In any event there was no appeal against her Honour's decision by either of the applicants. However, both of them were joined as members of the representative group in the Muin and Lie litigation which led to favourable findings in respect of those two named applicants Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601. That concerned the application of procedural fairness in the way the Tribunal had dealt with documents transmitted from the Department to the Tribunal and in particular the failure to notify applicants that certain documents believed to be considered by the Tribunal had not in fact been transmitted to the Tribunal. 19 No such determination was made in relation to these applicants who, pursuant to orders made in the representative proceedings by Gaudron J on 25 November 2002, were given liberty to file individual applications for orders nisi seeking prerogative relief in the High Court on the basis that upon such filing their applications would be remitted instanter to the Federal Court. 20 Applications for orders nisi were filed and remitted to the Federal Court and eventually on 20 February 2004 Emmett J, in judgments dealing with some hundreds of proceedings so remitted, dismissed the applications for relief. The applications for relief in each case asserted failure of procedural fairness without any particularisation. In dismissing those applications his Honour did indicate that the dismissal was without prejudice to the capacity of the applicants to bring fresh applications for orders nisi for prerogative relief properly supported by affidavit material and appropriately particularised grounds. 21 Assurances were given to Emmett J by the Minister's counsel that the delay which had ensued between the time when each of the applicants was joined as a representative party in the High Court to the time of refusal of an order nisi would not be advanced as a basis for refusing relief in any future application. However, any delay from the time of making the decision by the Tribunal and the joinder of the applicant in the High Court proceeding would still remain to be explained as would any delay from the time of refusal of an order nisi until the commencement of any fresh proceeding. 22 Subsequently each of the applicants lodged an application under s 39B of the Judiciary Act 1903 (Cth) in the Federal Magistrates Court. Their applications were lodged on 17 January 2005. Each application asserted firstly that the applicant was not a vexatious litigant and there was no abuse of process and secondly, in the case of the husband, that the Tribunal had failed to accord procedural fairness because it did not give him an opportunity to comment on information which was significant to the decision to be made and was specifically about the applicant. Reference was made to contravention of s 424A(1) of the Act which, however, was not in force at the time that the Tribunal made its decision. A similar ground framed slightly differently was expressed in the wife's application. 26 The applicants had filed a written submission in the Federal Magistrates Court in response to the notice of motion. They were not then legally represented. They submitted that the current proceedings were not an abuse of process and argued first that even though their applications were dismissed by the Federal Court, the High Court found that the Tribunal had erred in law and had remitted their matter to the Federal Court. It is true, as the learned Federal Magistrate pointed out, that the applications for an order of review were dismissed by the Federal Court and that the High Court had in the Muin and Lie class action made a finding of error by the Tribunal but not in respect of the applicants' case. Each of the applicants was, as the learned Magistrate pointed out, given the right to file an application for an order nisi in the High Court which was remitted to the Federal Court but that application was subsequently dismissed for a procedural reason. 27 It was submitted to the Federal Magistrates Court that the Federal Court had not examined the Tribunal decision other than in relation to access to documents held by the Minister. As a statement about the decision made by Mathews J in 1999 that contention was, as the Federal Magistrates Court pointed out, incorrect. Her Honour examined the decisions of the Tribunal in detail and dismissed the application for review on its merits. It may be that there was some confusion, on the applicants' part, with the judgment of Emmett J in the later proceedings. 28 A third contention advanced before the Federal Magistrates Court was that after the High Court had remitted the applicants' cases to the Federal Court they had had no opportunity to present their arguments in relation to the Tribunal decision which, according to the High Court, was infected by a jurisdictional error. As the Federal Magistrates Court pointed out, that ground was misconceived. The High Court had not found the decisions relating to the two applicants to be infected by jurisdictional error. The applicants had already presented their arguments to the Federal Court in relation to the Tribunal decision, arguments which were considered and rejected. 29 The Federal Magistrates Court observed that the applicants had not appealed against the judgments of Mathews J in 1999 and expressed the opinion in passing that their joinder in the class action was in itself an abuse of process because their matters had already been decided. I interpolate that this was not necessarily so given the limitation on the grounds of judicial review before Mathews J to those set out in s 476 and, in particular, the exclusion of natural justice grounds which it was open to raise in the proceedings in the High Court. The learned Federal Magistrate then referred to a number of authorities cited by the applicants and concluded that (at [22]): '[I]t is clear that the applicants were seeking to re-litigate an application for judicial review of the decision of the Refugee Review Tribunal handed down on 8th July 1998.' 30 The learned Federal Magistrate held that the applicants had raised no new issue since the application for judicial review had been dealt with in 1999. No special circumstances were given as to why any new issue which could have been raised was not raised at the time of the original applications. They were represented by counsel at the time of the original applications.


case_outcome: distinguished

case_title: Arnold v Queensland (1987) 73 ALR 607

case_text: That is enough to provide this Court with jurisdiction to make a sequestration order against the estate of Mr Abdul-Karim on a petition presented by the Bar Council: See subs 43(1) of the Act. The fact that the Bar Council is not a separate legal entity does not deny its standing as a creditor for the purposes of the Act; cf., subs 30(1) of the Administrative Appeals Tribunal Act 1975 (Cth): Arnold v Queensland (1987) 73 ALR 607 at 611 per Wilcox J. A partnership is not a legal entity separate from its partners and yet it may be a creditor for the purposes of the Act. So much is implicit in subs 82(1) of the Act which provides: 'Subject to the Division, all debts and liabilities, present or future, certain or contingent, to which a bankrupt was subject at the date of the bankruptcy, or to which he or she may become subject before his or her discharge by reason of an obligation incurred before the date of the bankruptcy, are provable in his or her bankruptcy.' 27 Moreover, under O 42 r 2 of the Federal Court Rules , an action by two or more persons claiming as partners who carry on business in partnership within Australia may be brought in the partnership name. Applying the same facilitation, there seems no reason why an action by the constituent members of the Bar Council, claiming as such, may not be brought in the name of the Bar Council, particularly where the debt arises out of the performance by the Bar Council of the statutory functions and duties vested in it by the LPA. 28 It follows that I decline to dismiss the application on the ground of the Bar Council's standing.


case_outcome: considered

case_text: It is common ground that the requirements of reg 10.04 were not complied with. Indeed, I would agree with the Bar Council's submission that they were blatantly breached. While I agree that the conduct complained of relates to a 'proceeding' (the calling of the creditors' meeting) under the Act: See Nilant v Macchia [2000] FCA 1528 ; (2000) 104 FCR 238 at [26] , [27] per Hill J; at [53] per Weinberg J, having regard to the intent of the regulation as described in [14] supra, I do not agree that such conduct can be characterised as a formal defect or irregularity so as to be saved from invalidity by subs 306(1) of the Act. In my view, the blatant breach of the requirements of the regulation would be, of itself, sufficient to grant declaratory relief in terms of the first prayer in the Bar Council's application. 16 There is a further consideration. Mr Fisher's status as a creditor of Mr Abdul-Karim is also put in issue by the Bar Council. The Bar Council submits that on the basis of the facts set out at [6] supra, I should find that Mr Fisher is not a creditor. There is, in my view, considerable force in this submission. Counsel for Mr Abdul-Karim submitted that the subsequent (2 March 2006) withdrawal by Mr Fisher of his statement of claim as a creditor was no more than a concession that he did not want to vote at a meeting of creditors. That may explain the withdrawal, on the same date, of the proxy in favour of Mr Illek, but not the withdrawal of the statement of claim. It was also submitted that Mr Abdul-Karim would not lightly sign a statement of affairs including, as a liability, an amount which, to his knowledge, was not a liability. To do so, it was submitted, would render Mr Abdul-Karim liable to the prospect of a penalty of imprisonment for 12 months: see subs 267(1)(f) and 267(2). But the fact that Mr Abdul-Karim genuinely believed Mr Fisher was a creditor and, apart from his statement of affairs, there is no evidence to suggest he did so believe, while it may absolve him from the penal consequences of s 267, does not make Mr Fisher a creditor, if he was not already one. More telling is the action of Mr Fisher in subsequently withdrawing his statement of claim. 17 The state of evidence on this issue is less than satisfactory, however, I think it is open for me to find, and I do so find, that Mr Fisher was not a creditor of Mr Abdul-Karim on 22 February 2006.


case_outcome: applied

case_text: I am not prepared to make an order in terms of the third prayer in the Bar Council's application an order restraining Mr Dennis from calling a further meeting of Mr Abdul-Karim's creditors because the 25 days prescribed by s 194 of the Act have passed and there is no application for an extension of time before me: See Pretorius v Dalton Carpet Tiles Pty Ltd (1984) 1 FCR 346 at 352 353. Mr Dennis has no power to call any such meeting. 31 Mr Eddy must pay the Bar Council's costs of the application. 32 I give the parties liberty to re-list the matter on two days' notice. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate: Dated: 21 March 2006 Counsel for the Applicant: Mr M Aldridge SC Solicitor for the Applicant: Eakin McCaffery Cox Counsel for the First Respondent: Ms I Ryan Counsel for the Second Respondent: Mr J Johnson Solicitor for the Second Respondent: McKell's Solicitors Solicitor for the Third Respondent: The third respondent appeared in person Date of Hearing: 9 March 2006 Date of Judgment: 21 March 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/254.html


case_outcome: referred to

case_title: Re Ringuet (1984) 11 FCR 45

case_text: Subsection 194(1) of the Act, relevantly par (a), mandates that the meeting of the debtor's creditors be held not more than 25 working days after the relevant consent or approval was given. The relevant consent was given on 17 January 2006 and, having regard to week-ends and the Australia Day public holiday on 26 January 2006, it seemed to be common ground that, in the absence of time being extended see Re Ringuet (1984) 11 FCR 45 the last day on which the meeting could be held was Wednesday, 22 February 2006, the day on which it was purportedly held. 13 Regulation 10.04 of the Bankruptcy Regulations mandates that the controlling trustee give to, inter alia , each creditor, at least 10 days before the first meeting of creditors is called under an authority under s 188, notice in writing of the date, time and place of the meeting, a copy of his (the controlling trustee's) report, a copy of his (the controlling trustee's) statement and a copy of information relating to his remuneration. 14 The intent is clear each creditor is to receive, in sufficient time before the meeting, the information needed to make a determination about voting see the various voting alternatives open to creditors under subs 204(1) of the Act. The importance of getting this information on a timely basis is manifest in the modification to subs 64Y(1) of the Act made by Part 2 of Schedule 6 of the Bankruptcy Regulations (s 196 and reg 10.05), namely '(lA) The controlling trustee may adjourn a meeting to undertake further investigation in relation to the controlling trusteeship, that the controlling trustee considers necessary. (IB) The creditors attending the meeting may, by special resolution, revoke the trustee's decision to adjourn the meeting.' In other words, the trustee's right to adjourn is conditional upon it not being vetoed by creditors. Of course, creditors can only exercise their veto if they are present at the meeting and here the creditors were not only not given timely notice of the meeting but the notice wrongly informed them not to attend the meeting because it would be adjourned.


case_text: The different status and standing of the New South Wales Bar Association on the one hand and the Bar Council on the other was the subject of observation in the joint judgment of Deane, Dawson, Toohey and Gaudron JJ in Wentworth v NSW Bar Association [1992] HCA 24 ; (1992) 176 CLR 239 at 248: 'The Bar Association is a company limited by guarantee. Its articles of association provide for "a Council of the Association" [Article 45] and for its business to "be managed by the elected members of [that] Council" [Article 61] . It is that Council, constituted by its elected members, which functions as the governing body of the Bar Association and which has been referred to as "the Bar Council". The Bar Council has no separate legal identity but, as will later appear, it has specific statutory powers and functions in relation to barristers and candidates for admission to the Bar.' 23 In his written submissions, counsel for Mr Abdul-Karim submitted that the New South Wales Bar Association is not an entity having the benefit of the order for costs relied upon by the Bar Council to establish standing as a creditor nor is it or does it purport to be the applicant in the present proceedings. So much may be accepted even though the terms of the certificates certifying the orders made by the Administrative Decisions Tribunal on 17 June and 3 September 2003 which were produced by the Bar Council in response to a notice to produce might suggest that the costs orders were in favour of the Bar Association and not the Bar Council. The first certificate reads: '2. That Michael Saadey Abdul-Karim pay the costs of the Association of these proceedings in the sum of $33,300.' The second certificate reads: '3. That Michael Saadey Abdul-Karim pay the costs of the Bar Association in the sum of $98,792.' Both certificates show the applicant as being The Council of the New South Wales Bar Association and, in my view, the reference to 'the Association' in order 2 of the first certificate and the reference to 'the Bar Association' in order 3 of the second certificate should be read as being shorthand references to The Council of the New South Wales Bar Association, in other words, the Bar Council, and not the Bar Association itself. In any event, that is how I propose to read them. Such a reading is consistent with the terms of subs 566(1) of the Legal Profession Act 2004 ('the LPA') (s 171E of the Legal Profession Act 1987 (NSW)) which provides: (1) The Tribunal must make orders requiring an Australian legal practitioner whom it has found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the Commissioner, a Council and the complainant), unless the Tribunal is satisfied that exceptional circumstances exist.' The term 'Council' is defined in s 4 of the LPA to mean 'the Bar Council or the Law Society Council'. 24 Indeed, counsel for Mr Abdul-Karim said there was no dispute that there is a debt owing to the Bar Council. What is disputed, he submitted, is the standing of the Bar Council to bring a proceeding in this Court as a creditor in the name of the Bar Council, rather than in the names of its identified constituent members.


case_title: Ogawa v Minister for Immigration and Multicultural Affairs and Migration Review Tribunal [2006] FCA 1694

case_text: There is an old adage that the road to hell is paved with good intentions. These proceedings indicate that it is not only that destination that is paved with good intentions, but also the pathway to a courthouse. By that I mean, that when one reflects upon the history of this case, and in particular the observations that Cowdroy J made in his reasons for judgment in Ogawa v Minister for Immigration and Multicultural Affairs and Migration Review Tribunal (2006) FCA 1694 , one sees there particular sources of grievance that, at a humane level, one might see Ms Ogawa having in respect of the saga of her dealing with the immigration authorities of the Commonwealth. 2 Those grievances, though, do not translate into actionable causes of action against either of the Respondents in this proceeding. In between when this proceeding was first instituted in the Federal Magistrates Court in June last year and today, there have been many "good intentions", in terms of adjournments granted for the purpose of seeking legal advice, and in terms of the advance notice of the nature of the application to be made today by the Respondents, and the detailed reasons for it. Earlier in time one sees many other instances of "good intentions" in the dealings between the Commonwealth and Ms Ogawa, even though it must be said, as Cowdroy J observed, some of those good intentions have translated into sources of grievance, which the present proceeding indicates, persist to this day. 3 The detailed background to the case is to be found in a chronology which was helpfully provided at a directions hearing last year by the Respondents, and which is attached to these reasons as Exhibit 1. 4 By reference to that chronology and other material filed, one sees that the proceeding has its origins in the request that was made by Ms Ogawa to the Immigration Department's Ministerial Intervention Unit for intervention by the Minister in respect of her migration affairs, pursuant to s 351 of the Migration Act 1958 ("Migration Act"). That request was withdrawn by, it seems, the First Respondent, without any apparent instruction from Ms Ogawa so to do. That particular event became the subject of litigation before a Federal Magistrate, and later before Cowdroy J, in the decision to which I have already made reference. One finds in Cowdroy J's Reasons for Judgment further detail concerning the earlier background of today's proceeding. 5 It might also be noted that since Cowdroy J gave his decision on 15 December 2006 the following events have occurred. On 25 June 2007, on the initiative of another agency within the Immigration Department, action was taken pursuant to s 351 of the Migration Act to grant to Ms Ogawa a sub-class 574 (post graduate research sector) visa which remained valid until 31 August 2007, and on 30 August 2007 to grant to her a sub-class 010 (bridging A) visa. 6 In the application that Ms Ogawa filed initially in the Federal Magistrates Court and which has since been transmitted to this Court by order of Federal Magistrate Burnett, the following relief is sought: (a) firstly, a declaration that Ms Ogawa's request under s 351 of the Migration Act be deemed to be being considered by an officer of the Ministerial Intervention Unit of the Department of Immigration at all times since the request was made; (b) secondly, certiorari, quashing the decision of the First Respondent; (c) thirdly, mandamus, directing the First Respondent to consider and determine Ms Ogawa's request according to law; (d) fourthly, an order that the Second Respondent pay damages to Ms Ogawa or, in the alternative, that the First Respondent pay damages to Ms Ogawa; (e) fifthly, an order that, pursuant to s 51A of the Federal Court of Australia Act 1976 ("the Act "), the Second Respondent pay interest to Ms Ogawa or, in the alternative, the First Respondent pay interest to Ms Ogawa. 7 Ancillary relief and costs are also sought. The grounds of the application, in summary, are as follows: (a) firstly, that the First Respondent had no power or authority to make the decision; (b) secondly, that the First Respondent knew that: (i) she had no power or authority or recklessly disregarded the means of ascertaining the extent of her power or authority to make the decision; and (ii) that her conduct in withdrawing the request by Ms Ogawa had a foreseeable risk of harm to her; (c) thirdly, that the Second Respondent is vicariously liable for the First Respondent's conduct and, finally; (d) fourthly, "such and other grounds that are not currently within the knowledge of the unrepresented Applicant." 29 That observation has particular resonance in the circumstances of the present case. There is not a scintilla of evidence in any of the material which has been read before me or, for that matter, in the circumstances as detailed by Cowdroy J in his earlier decision, which in any way provides any support for the view that any Commonwealth officer has acted otherwise than honestly and without any intention at all to act in any way maliciously as against Ms Ogawa. Even assuming that there were jurisdiction in respect of the judicial review and declaratory aspects of this case, and assuming that one might regard the damages claim as an associated matter, it is utterly hopeless.


case_text: Section 31A(2) of the Act represents a deliberate step by the Parliament to modify the position which hitherto prevailed in relation to summary judgment applications and which is exemplified in terms of principle in authorities such as Day v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. Thus s 31A(2) provides that the court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; (b) the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.


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


case_title: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Applicants S134/2002 [2003] HCA 1 ; (2003) 211 CLR 441

case_text: It might also be noted that by s 351(7) , the Minister is empowered to make, by way of substitution, a more favourable decision, but that he does not have a duty to consider whether to exercise his power under subs (1) in respect of any decision, whether he was requested to do so by an applicant or another person, or in any other circumstances. That particular statutory provision and its analogues have the necessary consequence in relation to an application for a constitutional writ, in which it is sought to compel Ministerial consideration, that there is no statutory duty so to do and, hence, a constitutional writ will not go. See in that regard the High Court's decision in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Applicants S134/2002 (2003) 211 CLR 441-48. 24 That in itself is enough to dispose of the proceeding on the basis of an absence of a reasonable prospect of success; i.e. there is no hope of establishing jurisdiction to entertain the claim in respect of relief relating to compelling the Minister to act under s 351. It is desirable though, in the circumstances, to reflect upon other aspects of the claim, even assuming that there were jurisdiction. 25 In their written submission the Respondents, apart from the primary submission which is that the Minister is under no obligation to consider a request, also in an elaborate way chart by way of reference to directions that have been given by the Minister pursuant to his administration of the Act and in relation to s 351, highlight how it is, that a particular course was taken within the Department to proceed as was done once both a request for withdrawal had been received and once there was an awareness of a continuing migration matter litigation. It suffices to note that there is a compelling basis for the submission that the course taken was one that was within power. The detail of that is set out in the submission which is on the court file and it is not necessary to elaborate on it.


case_text: It is desirable though to elaborate rather more on what the Respondents, with respect, rightly apprehend to be a claim in the nature of damages for misfeasance in public office. Like the Respondents, I too would characterise the second of the grounds in the application as one for damages in respect of that asserted tort. The leading authority in respect of that tort is Northern Territory v Mengel (1995) 185 CLR 307. Damages are recoverable by an individual in respect of the tort of misfeasance in public office, where that individual has suffered loss by reason of an action taken by the holder of a public office, if, and it is a significant if, that officer has acted maliciously, or knew that the action was beyond power and likely to harm that individual. 27 In this sense misfeasance in public office is a "deliberate tort". The elements of the course of action were particularly identified by Deane J in his reasons for judgment in Mengel at page 370, in the following way: (a) there was an invalid or unauthorised act; (b) that act was done maliciously; (c) it was done by a public officer; (d) it was done in the apparent discharge of that officer's duties; (e) the act caused loss or damage. 28 It is also useful to recall an observation made by Brennan J in Mengel at page 357 wherein his Honour observed that the tort consisted of: "A purported exercise of some power or authority by a public officer otherwise than in an honest attempt to perform the functions of his or her office whereby the loss is caused to the plaintiff."


case_text: A further observation ought also to be made in respect of so much of that damages claim as would seek to make the Commonwealth vicariously liable in respect of the first respondent's action or inaction, as alleged. Obviously enough, the utterly hopeless quality of the damages claim against the First Respondent has a necessary consequence, even assuming that it were possible to make the Commonwealth vicariously liable. That is an assumption though which, in any event, would be wrong in law to make. The present state of authority suggests strongly that, in the ordinary course of events, it is not possible to make the relevant body politic, in this case the Commonwealth, vicariously liable for that tort of misfeasance committed by an officer, see James v Commonwealth [1939] HCA 9 ; (1939) 62 CLR 339 at 359-60 and RACZ v Home Office [1994] 2 AC 45.


case_title: RACZ v Home Office [1994] 2 AC 45


case_text: The Court's jurisdiction under s 44(1) is limited to pure questions of law: Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 76 ALD 321 , at [11]-[16]; Price Street Professional Centre Pty Ltd v Commissioner of Taxation (2007) 97ALD 593 at [35]. 10 Whether a decision gives rise to a question of law that will support an appeal under s 44(1) requires consideration of how the decision was arrived at and the point that the appellant seeks to raise: Price Street Professional Centre at [25]. The Court must consider the question sought to be raised and the grounds relied upon: see Birdseye at [18]; Price Street Professional Centre at [40]. The grounds required to be specified in the notice of appeal "are the grounds upon which the appellant will argue that the answers for which it contends to the questions of law entitle it to the relief which it seeks": HBF Health Funds Inc v Minister for Health and Aging [2006] FCAFC 34 ; (2006) 149 FCR 291 at [6] . 11 Any questions of law identified by the applicant must relate to the decision under appeal in such a way that a favourable answer to the question will disclose an error affecting the Tribunal's decision: Birdseye at [23] and [28]. 12 During argument counsel for the applicant effectively abandoned the stated questions of law and said that the error of law relied upon was the failure of the Tribunal to take into account the applicant's explanation for failing to comply with his obligations under s 161 of the Income Tax Assessment Act 1936 (Cth) ("the ITAA Act ") as relevant to the exercise of the discretion under s 251K , whether to cancel the applicant's registration as a tax agent. 13 The two issues for the Tribunal were: (a) whether the applicant had been convicted of serious taxation offences, so that the applicant is not a fit and proper person in the relevant sense; and (b) whether the registration of the applicant as a tax agent should be cancelled under s 251K(2) of the ITAA Act because of those offences, the applicant's history of non-compliance of income tax returns, including his non-lodgement of income tax returns since 2000.


case_title: BTR plc v Westinghouse Brake and Signal Co (Aust) Ltd (1992) 34 FCR 246


case_text: The grounds are formulated as four separate questions concerning matters of law. However, the competency of the appeal depends on the identification of questions which are properly characterised as questions of law, as the subject of the appeal: Price Street Professional Centre , at [22]; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at [14] .


case_text: The discretion to extend time to institute an appeal is not expressly confined. Some relevant considerations are to be found in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (in respect of applications for extension of time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth)). These have been applied to applications under s 44: Peczalski v Comcare (1999) 58 ALD 697 at [19]; Dent v Australian Electoral Commissioner [2008] FCAFC 111 at [48] . They include relevantly for present purposes the following: (a) The application should not be granted unless the Court is satisfied that it is proper so to do. The prescribed period is not to be ignored: Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission (1982) 43 ALR 535 at 550. Although it is not an essential pre condition for a favourable exercise of the discretion that the applicant show an acceptable explanation for the delay, it is to be expected that such an explanation will normally be given: Comcover v A'Hearn [1993] FCA 498 ; (1993) 45 FCR 441. (b) The merits of the substantial application are properly to be taken into account, considering whether an extension of time should be granted.


case_text: The Court has a discretion to extend time. That discretion is given for the sole purpose of enabling the court to do justice between the parties: Gallo v Dawson [1990] HCA 30 ; (1990) 64 ALJR 458 at 459.


case_text: Whether a decision gives rise to a question of law that will support an appeal under s 44(1) requires consideration of how the decision was arrived at and the point that the appellant seeks to raise: Price Street Professional Centre at [25]. The Court must consider the question sought to be raised and the grounds relied upon: see Birdseye at [18]; Price Street Professional Centre at [40]. The grounds required to be specified in the notice of appeal "are the grounds upon which the appellant will argue that the answers for which it contends to the questions of law entitle it to the relief which it seeks": HBF Health Funds Inc v Minister for Health and Aging [2006] FCAFC 34 ; (2006) 149 FCR 291 at [6] .


case_title: Hill v Repatriation Commission (2005) 218 ALR 251


case_title: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344


case_title: Peczalski v Comcare (1999) 58 ALD 697


case_text: The Court's jurisdiction under s 44(1) is limited to pure questions of law: Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 76 ALD 321 , at [11]-[16]; Price Street Professional Centre Pty Ltd v Commissioner of Taxation (2007) 97ALD 593 at [35]. 9 The grounds are formulated as four separate questions concerning matters of law. However, the competency of the appeal depends on the identification of questions which are properly characterised as questions of law, as the subject of the appeal: Price Street Professional Centre , at [22]; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at [14] . 10 Whether a decision gives rise to a question of law that will support an appeal under s 44(1) requires consideration of how the decision was arrived at and the point that the appellant seeks to raise: Price Street Professional Centre at [25]. The Court must consider the question sought to be raised and the grounds relied upon: see Birdseye at [18]; Price Street Professional Centre at [40]. The grounds required to be specified in the notice of appeal "are the grounds upon which the appellant will argue that the answers for which it contends to the questions of law entitle it to the relief which it seeks": HBF Health Funds Inc v Minister for Health and Aging [2006] FCAFC 34 ; (2006) 149 FCR 291 at [6] .


case_title: TelePacific Pty Ltd v Commissioner of Taxation (2005) 218 ALR 85


case_text: Hotchkin Hanley did not respond to ASIC's letter of 8 March 2007. Ferrier Hodgson responded but did not pursue its previous concerns. Mr Carey and Ms Carey, through their solicitors Mony de Kerloy, wrote to ASIC on 9 March 2007 asserting that the Westpoint documents might contain legally privileged information and that to obtain appropriate advice their clients required funding from moneys held by Healthcare Properties Pty Ltd (Healthcare). ASIC rejected this contention on 13 March 2007. An application for release of funds from Healthcare was refused in my judgment on 17 April 2007: Australian Securities & Investments Commission; In the matter of Richstar Enterprises Ltd v Carey (No 15) [2007] FCA 544. 19 ASIC's release does not extend to copies of what is known as the Redchime server. This is on the basis that the materials obtained from that server were not produced to ASIC by KordaMentha in their capacity as privately appointed receivers and managers to Westpoint Corporation. The proposed release to the liquidators is limited to the hardcopy documents. ASIC released an image of the Westpoint server and associated computers in June 2006. 20 On 27 April 2007 ASIC filed an application under s 477(6) of the Corporations Act 2001 (Cth) seeking orders that the liquidators of Westpoint Corporation be permitted to inspect and obtain copies of the books of the company held by ASIC subject to certain conditions relating to third party interests which were set out in the application.


case_text: applicants' counsel told the Court that nowhere in the statements of issues and contentions of any of the parties is there a reference to either the Act or the section in question. There is no doubt that a Notice to Produce may be set aside if the documents sought by it lack apparent relevance to the proceeding: Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 at 102-103; Seven Network Limited v News Limited (No 11) [2006] FCA 174 at [6] . In this case, the documents sought have been discovered and so are prima facie relevant. Other than the assertion from the bar table that the Act and section in question are not to be found in the statements of issues and contentions, no attempt has been made by the applicants to demonstrate that the documents are not relevant. That assertion is at any rate of limited assistance: the proceeding is still at an interlocutory stage and submissions on the substantive issues between the parties are yet to be made. The tentative submission of the applicants that document 1434 is not relevant is insufficient to displace the document's prima facie relevance.


case_title: Seven Network Limited v News Limited (No 11) [2006] FCA 174


case_title: Apple v Wily [2002] NSWSC 855

case_text: was not argued that the applicant fell within the core definition of "client" and nor could it be, for as Barrett J said in Apple v Wily [2002] NSWSC 855 at [11] , in its ordinary signification, must therefore be regarded as referring to a person who, in respect of some legal matter within the scope of professional services normally provided by lawyers, has, with the consent of a lawyer, come to stand in a relationship of trust and confidence to the lawyer entailing duties of the lawyer to promote the person's interests, to protect the person's rights and to respect the person's confidences." The core meaning of the term "client" is expanded upon in s 117: see Apple v Wily [2002] NSWSC 855 at [7] . The definition is a non-exhaustive list of categories, all but one of which are not presently relevant. Paragraph (b) is "an employee or agent of a client" . It follows that if the applicants can show that, for the purpose of maintaining privilege over the Bankers Trust documents, they are the agents of Bankers Trust, then they are entitled to assert that privilege on Bankers Trust's behalf. But no evidence was led to the effect that the applicants were Bankers Trust's agents. There was a suggestion by the applicants that they were bailees of the documents and could assert Bankers Trust's privilege in that capacity. This was met by a submission from the respondent that because the documents were sent by facsimile to the applicants there could be no bailment. This submission misunderstands the subject matter of legal professional privilege. The privilege attaches to communications and not the pieces of paper and other media on which they are recorded. A communication is essentially information and the law knows no concept of the bailment of information. For the same reason, the applicants' bailment suggestion is unsound.


case_text: obligation to prove that a communication is privileged rests with the party asserting privilege: Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 689. That obligation is not discharged merely by an assertion of privilege in an affidavit verifying a list of documents: National Crime Authority v S (1991) 29 FCR 203 at 211. That is especially so where, as in this case, the assertion in the affidavit wrongly describes the privilege as belonging to the applicants rather than to Bankers Trust. It is understandable that the respondent is suspicious of documents prepared by senior in-house counsel for the board of directors. In contemporary companies, senior lawyers increasingly often play management roles which will sometimes involve them creating documents that are not for the dominant purpose of providing legal advice. The descriptions provided by the appellant of the Tiffen documents, supplemented by the evidence of Mr Schoenberg, do not demonstrate conclusively that the documents are privileged. In such circumstances, often the only possible course of action is for the party claiming privilege to provide the documents to the Court and have the Court determine if the claim can be maintained: see Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 689. This is what has occurred in this case. I have been provided by the applicants with copies of the Tiffen documents. Such copies have not, as I understand it, been provided to the respondent. I have reviewed the two documents. It is inappropriate for me to say anything more about the documents than has been said in open Court in evidence and submissions. I should, however, set out my approach to determining whether the documents are privileged.


case_text: obligation to prove that a communication is privileged rests with the party asserting privilege: Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 689. That obligation is not discharged merely by an assertion of privilege in an affidavit verifying a list of documents: National Crime Authority v S (1991) 29 FCR 203 at 211. That is especially so where, as in this case, the assertion in the affidavit wrongly describes the privilege as belonging to the applicants rather than to Bankers Trust.


case_text: than what is recorded at [23] and [24], no reason was given why the applicants could assert any privilege that may have attached to the documents in Bankers Trust's hands. It may be that a party to whom privileged documents are provided in circumstances that are not inconsistent with the maintenance of privilege, has a general or limited right to assert that privilege on behalf of that person. I need not decide that question here for the applicants have failed to lead any evidence of the circumstances of the provision of the documents to them. In particular, they have not proved that the provision of the documents to them was done in circumstances that were consistent with the maintenance of privilege: see Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1. The only evidence is the brief reference in Mr Schoenberg's affidavit to Bankers Trust requesting the applicants to maintain privilege in the documents. It is to be inferred that the request was not made at the time the documents were provided to the applicants, but at a later stage. It follows from what I have said that the applicants have also failed to prove that privilege in the Bankers Trust documents was not waived. Where a document which is privileged, or alleged to be privileged, in the hands of the client for whom it was prepared, is then provided to a third party, the party claiming privilege bears the burden of proving that the provision of that document to the third party did not waive privilege. That burden will be discharged by showing that the circumstances of the provision of the document to the third party were not such as to constitute "inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege" : Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at 13 per Gleeson CJ, Gaudron, Gummow and Callinan JJ. An ex post facto request by the client for the third party to maintain the privilege does not discharge the burden. For these reasons, it follows that the applicants have failed to prove that they are entitled to assert privilege over the Bankers Trust documents, assuming they are privileged in Bankers Trust's hands. The motion in respect of these documents must be dismissed. Documents 1780 and 1898 were both created by Mr Tiffen who was at the time the Chief Counsel of the applicants and an admitted and practising solicitor. Mr Tiffen has not given any evidence concerning these documents or the circumstances of their creation. However Mr Schoenberg deposes that he has been informed of certain matters by Mr Tiffen. According to Mr Schoenberg, Mr Tiffen was asked by Mr Drenth, then an employee of the applicants, to "advise him on the form of resolutions required by the Boards of certain Rio Tinto group companies to authorise those companies to enter into certain transactions" and that Mr Tiffen prepared document 1780, which is an email attaching draft board papers, in response to that request. According to Mr Schoenberg, Mr Tiffen did so in his capacity as an in-house legal counsel of the applicants and for the dominant purpose of providing Mr Drenth with legal advice.


case_text: Packer v Deputy Federal Commissioner of Taxation (1984) 84 ATC 4666 at 4672, McPherson J said that communication may be privileged even though it is both not intended for use in litigation and not strictly speaking made for the purposes of legal advice but the purposes of providing legal assistance, eg, draft conveyances and the like: Mostyn v West Mostyn Coal Co (1876) 34 LT 531, although they are not perhaps legal advice in a literal sense."


case_title: AWB Ltd v Cole [2006] FCA 571

case_text: AWB Ltd v Cole [2006] FCA 571 at [86] , Young J referred to the decision of the English Court of Appeal in Balabel v Air India [1988] Ch 317 at 330, where Taylor LJ (with whom Lord Donaldson MR and Parker LJ concurred) said: obviously attaches to a document conveying legal advice from solicitor to client and to a specific request from the client for such advice. But it does not follow that all other communications between them lack privilege. In most solicitor and client relationships, especially where a transaction involves protracted dealings, advice may be required or appropriate on matters great or small at various stages. There will be a continuum of communication and meetings between the solicitor and the client. ... Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach. A letter from the client containing information may end with such words as 'please advise me what I should do'. But, even if it does not, there will usually be implied in the relationship an overall expectation that the solicitor will at each stage, whether asked specifically or not, tender appropriate advice. Moreover, legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context. ' added)


case_title: Balabel v Air India [1988] Ch 317

case_text: AWB Ltd v Cole [2006] FCA 571 at [86] , Young J referred to the decision of the English Court of Appeal in Balabel v Air India [1988] Ch 317 at 330, where Taylor LJ (with whom Lord Donaldson MR and Parker LJ concurred) said: obviously attaches to a document conveying legal advice from solicitor to client and to a specific request from the client for such advice. But it does not follow that all other communications between them lack privilege. In most solicitor and client relationships, especially where a transaction involves protracted dealings, advice may be required or appropriate on matters great or small at various stages. There will be a continuum of communication and meetings between the solicitor and the client. ... Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach. A letter from the client containing information may end with such words as 'please advise me what I should do'. But, even if it does not, there will usually be implied in the relationship an overall expectation that the solicitor will at each stage, whether asked specifically or not, tender appropriate advice. Moreover, legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context. ' added) Counsel for the applicants described documents 1780 and 1898 respectively as "pro forma matters to be attended to by the board in order to pass certain resolutions, to give effect to approvals by the board to enter into particular legal transactions" and a list of "a number of matters that has to be attended by the board, for the purpose of giving effect to or making effective, particular resolutions" . I accept that such documents, while not formal opinions of the law, may constitute legal advice and, if prepared for that dominant purpose, may attract legal professional privilege. They may be, to adopt the words used in Balabel , "advice as to what should prudently and sensibly be done in the relevant legal context" .


case_text: well as considering whether the Tiffen documents constitute legal advice, I must also consider whether the provision of legal advice was the dominant purpose of their creation. Many adjectives have been used in an attempt to identify the dominant purpose of a communication. For present purposes it is sufficient to note that a dominant purpose is one that is of greater importance than any other: see Federal Commissioner of Taxation v Pratt Holdings Pty Ltd (2005) 225 ALR 266 at 478. The respondent submits that the dominant purpose of document 1898 appears to be the convening of a meeting to discuss identified matters. He makes no submission on what the dominant purpose of document 1780 is, save to say that the applicants have failed to discharge their burden of demonstrating that the dominant purpose test is satisfied. Having considered the Tiffen documents in light of the above principles, I have formed the view that each of them is subject to legal professional privilege. It is true that each of them each of them has a "corporate governance" purpose, but I am satisfied that this is not the dominant purpose of the communications contained within the documents but rather is the context in which the legal advice was given. I accept that the descriptions of the documents given to the Court by counsel for the applicants and set out at [37] are generally accurate and reflect the dominant purposes for which they were prepared. Accordingly, I will grant the applicants relief from production of documents 1780 and 1898 on the grounds that the are the subject of legal professional privilege.


case_text: reasons which relate to the costs of the proceeding should be read in conjunction with the reasons given today in Consolidated Byrnes Holdings Limited ACN 111 052 585 v Hardel Investments Pty Limited ACN 083 276 000 [2009] FCA 399. Those proceedings were brought on 28 March 2008 by Consolidated Byrnes Holdings Limited (CBH) and Alpha Asset Group Pty Ltd (Alpha) to wind up Hardel Investments Pty Limited (Hardel) and Avpri Pty Limited (Avpri) (the winding up proceedings). CBH and Alpha relied upon the presumption of insolvency created in the Corporations Act 2001 (Cth) (the Corporations Act ) when a "corporation had failed to comply with a statutory demand served upon it": s 459C(2)(a). In the winding up proceedings CBH and Alpha claimed that they had served statutory demands upon Hardel and Avpri on 18 December 2007 for debts which were then due and payable together with an affidavit that verified that the debts were then due and payable: s 459E(2) and s 459E(3). They claimed to be entitled to the debts by way of assignment dated 17 December 2007 from Contor Developments Pty Ltd (Contor) and Cobra Services Pty Ltd (Cobra): s 459E(4). Hardel and Avpri claimed in the winding up proceedings that they did not receive or were not served with any statutory demand prior to the issue of the winding up proceedings on 28 March 2008 or service of the winding up proceedings on 7 April 2008. They also claimed that there was a dispute as to whether any monies were owed to Contor or Cobra. Hardel and Avpri disputed the claim that they were insolvent. Further, they disputed that if there were debts they had been validly assigned to CBH and Alpha.


case_title: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24

case_text: In his original application to the Federal Magistrates Court, three grounds of review were specified. They were as follows: "(1) The Tribunal had bias against me , the Tribunal mentioned: 'The Applicant's claims are entirely dependent upon an acceptance of him as a credible witness. The JApplicant [sic] was not generally credible and the Tribunal does not regard the inconsistencies and other matters dealt with above as explicable in terms of any difficulty he faces as an asylum seeker . ' I believe the above statement was by actual bias of the officer. (2) THe [sic] Tribunal failed to consider my claims because I provided different claims at my hearing invited by the Tribunal. (3) The Tribunal did not provide sufficient reasons to refuse my application." Those grounds were apparently abandoned when an amended application was filed in the Federal Magistrates Court on 24 May 2006. The grounds in the amended application were as follows: "(1) The Tribunal failed to carry out its statutory duty. Particulars: (a) the only information before the Tribunal was that contained in the First Respondent's file and that given to the Tribunal by the applicant. (b) The Tribunal was required to provide particulars of the information that was the reason, or part of the reason for affirming the decision ... (c) The above particulars had to be provided in writing ..., (d) The information to be given extends to that information given by the Applicant to the First Respondent as part of his application for a visa. (e) The Tribunal based its findings on the information, or lack of information, contained in the Applicant's application for a visa and was required by section 424A , to give particulars of the information, explain why the information is relevant and provide the Applicant with an opportunity to comment upon it. The Tribunal's failure so to act was jurisdictional error." The words that I have omitted were quotations from the reasons of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 and Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27.


case_title: Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27


case_text: Under s 501(6) a person does not pass the character test if he or she has a substantial criminal record. It is not in dispute that Mr Gilbert has a substantial criminal record. In Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236 at 246 a Full Court, by way of obiter dicta , observed that the power conferred on the Minister to cancel a visa only applies to visas that have been granted to a person. Where a visa has been granted to a person, s 501F(3) operates so that any other visa held by that person is cancelled. So when an absorbed person visa is cancelled the transitional (permanent) visa held by that person is also cancelled. However, the Full Court considered in Moore that that process could not operate in reverse. That is because, so it said, the transitional (permanent) visa is a visa which is not granted or deemed to be granted to a person but is held by a person as a result of the operation of the Transitional Regulations. 29 Contrary views to those contained in Moore in the above respect, have been expressed in Hall v Minister for Immigration and Multicultural Affairs [2000] FCA 415 ; (2000) 97 FCR 387 (per Finkelstein J) and Andary v Minister for Immigration and Multicultural Affairs [2001] FCA 1544 (per Dowsett J).


case_text: The "criminal record" can only record charged acts where the person concerned has been found guilty. Even so, the Minister is entitled, in deciding whether or not to cancel the visa of a person who he suspects does not pass the character test, to take into account various matters in the exercise of his discretion. As counsel for the respondent submitted, once s 501(2) is engaged, the considerations relevant to the exercise of the discretion are very wide, see Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at 606, per Heydon and Crennan JJ where their Honours said: Parliament has left it to the Minister to decide the matters which are relevant to whether a person who fails the character test should be permitted to remain in Australia. Considerations relevant to the exercise of the power depend on the nature, scope and purpose of the power, understood in its context in the Act. As Ministerial Direction No 21 makes clear, the Minister considers that two of the factors relevant to the exercise of the discretion are related to the protection of the Australian community and the expectations of the community. (Emphasis added.) 42 It was, at least, open to the Minister to take into account uncharged acts. Such matters may be relevant to the risk of Mr Gilbert re-offending in the future. 43 Having regard to the foregoing it is appropriate to order that the application is dismissed and that the applicant pay the respondent's costs of the proceeding. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 23 January 2008 Counsel for the Applicant: Mr G Hughan Solicitor for the Applicant: Holding Redlich Counsel for the Respondent: Dr S Donaghue Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 14 December 2007 Date of Judgment: 23 January 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/16.html


case_text: Contrary views to those contained in Moore in the above respect, have been expressed in Hall v Minister for Immigration and Multicultural Affairs [2000] FCA 415 ; (2000) 97 FCR 387 (per Finkelstein J) and Andary v Minister for Immigration and Multicultural Affairs [2001] FCA 1544 (per Dowsett J).


case_title: Andary v Minister for Immigration and Multicultural Affairs [2001] FCA 1544


case_outcome: affirmed

case_text: appeal is from a judgment of the Federal Magistrates Court, given on 15 December 2008 and published as MZYAV v Minister for Immigration and Anor [2008] FMCA 1728. The learned federal magistrate dismissed an application seeking review of a decision of the Refugee Review Tribunal ("the Tribunal"), the second respondent to the appeal. The Tribunal dismissed an application for review of a decision of a delegate of the Minister for Immigration and Citizenship ("the Minister"), the first respondent to the appeal, refusing to grant to the appellant a protection visa. The appellant is a citizen of Sri Lanka. He arrived in Australia on 23 September 2007. On 2 November 2007 he applied for a protection visa. The decision of the Minister's delegate was given on 14 January 2008. The appellant then applied to the Tribunal for review of the decision of the Minister's delegate. On 18 March 2008, the Tribunal conducted a hearing at which the appellant attended and was represented by a migration agent. The Tribunal's decision was signed on 7 May 2008 and handed down or sent to the appellant on 21 May 2008. The appellant applied to the Federal Magistrates Court on 6 June 2008. He filed an amended application on 21 July 2008. His application was listed for hearing on 13 November 2008 but was adjourned until 15 December 2008 to enable the appellant to consider his case and seek legal advice. He appeared without representation at the hearing on 15 December 2008. The federal magistrate dismissed the appellant's application and ordered that he pay the Minister's costs, fixed at $5,000. By s 36 of the Migration Act 1958 (Cth) ("the Migration Act "), there is a class of visas to be known as protection visas. A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms "Refugees Convention" and "Refugees Protocol" are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967 . It is convenient to call these two documents, taken together, the "Convention". For present purposes, it is sufficient to note that, pursuant to the Convention, Australia has protection obligations to a person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country


case_text: In Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202 Deane and Fitzgerald JJ outlined a series of propositions to be considered in assessing whether conduct is misleading or deceptive under s 52 of the Act: • It is necessary to identify the relevant section(s) 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 (ie to whom the conduct is directed, as subsequently addressed in Astrazeneca Pty Ltd v GlaxoSmithKline Australia Pty Ltd [2006] FCAFC 22 ; [2006] ATPR 42-106 at [34] ). • Once the relevant section of the public is established, the matter is to be considered by reference to all who come within it, including the astute or the gullible, the intelligent or not so intelligent, educated or not educated and men and women of various ages and vocations (citing Puxu Pty Ltd v Parkdale Custom Built Furniture Pty Ltd (1980) 31 ALR 73 at 93 per Lockhart J). • Evidence that some individual has in fact formed an erroneous conclusion is admissible and may be persuasive, but is not essential. Regardless, such evidence does not itself conclusively establish the conduct to be misleading or deceptive, the test is objective and one the court must determine for itself. • It is necessary to inquire why any proven misconception has arisen (citing Hornsby Building Information Centre v Sydney Building Information Centre (1977) 140 CLR 216 at 228). It is only by this investigation that the evidence of those who are shown to have been led into error can be evaluated and it can be determined whether they are confused because of misleading or deceptive conduct on the part of the respondent. When I discuss doctors, pharmacists and patients, it is in the context of these principles. 58 No reason has been advanced to sub-divide these groups into any sub-classes or areas of specialisation. The question is whether the advertisements would be likely to lead to a misconception arising in the minds of that section of the public to whom the conduct, or silence, has been directed. Where, as here, the representations are made to various classes of the public, the characteristics of the members of that class are relevant in order to determine whether a misconception is likely to arise from the conduct alleged ( Campomar at [98] [103]; Astrazeneca at [34]). The question is whether a not insignificant number of doctors, pharmacists or patients will be misled ( ConAgra Inc v McCain Foods (Australia) Pty Ltd [1992] FCA 159 ; (1992) 33 FCR 302 at 380-381 per French J; National Exchange Pty Ltd v ASIC (2004) ATPR 42-000 at [70]). It is therefore necessary to assess the reactions or likely reactions of the members of each class to whom the conduct was addressed ( Campomar at [105]). The representations are to be tested by their effect on ordinary and reasonable persons within those groups ( Campomar at [102]). 79 It is not necessary for GenRx to establish that Ms Crisp, or anyone else, was actually misled or that she took steps consequent upon her misunderstanding ( Astrazeneca at [33]). However, it is relevant that Ms Crisp laboured under an erroneous assumption as to the substitutability of new Coversyl, arising from the use of the stamp issued by Servier and used by the prescribing doctor ( Astrazeneca at [36]; Taco Bell at 202). I am not satisfied that Ms Crisp's assumption was extreme or fanciful. To the contrary it was, for a busy pharmacist who dispenses numerous different drugs daily, a reasonable reaction on the part of an ordinary and reasonable pharmacist. The stamp did not simply cause confusion or wonderment ( Campomar at [106]), it misled Ms Crisp. It caused her to take remedial action, without which she would have continued to believe that brand substitution for Coversyl was not generally permitted. Accordingly, Ms Crisp laboured under an error ( Taco Bell ). 83 Mere confusion on the part of patients is not sufficient to establish a contravention of s 52 of the Act. Where there is no evidence of actual misleading, the question raised by the pleading is whether patients were or were likely to have been misled by the use of the stamp on patient prescriptions ( Campomar at [106]; Astrazeneca at [38]). 95 Doctors who read medical journals would be familiar with advertising for different drugs. The first banner advertisement would be recognised by doctors as an advertisement for Coversyl. Although it is in small type, there is an "elucidator" ( Astrazeneca ) that Servier has placed the advertisement. The statement "BRAND SUBSTITUTION NOT PERMITTED" appears directly next to the red box containing a tick and the exhortation "tick the box". The hypothetical ordinary or reasonable medical practitioner is familiar with the tickable box adjacent to the words "BRAND SUBSTITUTION NOT PERMITTED" appearing on standard prescription forms and its purpose. A doctor appreciates that he or she has the option to tick that box when writing a prescription for a specific brand of drug and that, if ticked, the pharmacist is not entitled as a matter of law to substitute another brand of drug for that which appears on the prescription form. A doctor reading the advertisement as a whole would know that Coversyl is a branded product which, without the exercise of the doctor's discretion to tick the box, can be substituted by "a"-flagged generics. 96 The first banner advertisement is an exhortation to tick the box and would be read as such. The doctor would associate the advertisement with the box on the standard form of prescription which he or she can decide to tick. He or she would understand that the advertisement was urging the doctor to tick that box as part of the completion of the prescription for Coversyl. I do not accept that it would be read or understood by a doctor to represent that brand substitution for Coversyl is never permitted or permissible. It does not say that the doctor cannot instruct that there be no substitution, or that the doctor is not permitted to allow substitution, or that "a"-flagging has not been or is not permitted. There is no suggestion of a Government or TGA source. The fact that the box is pre-ticked is not sufficient to suggest that a regulatory body has made a decision not to permit substitution. 97 There would be no need for an advertisement or for the doctor to tick the box if there was no "a"-flagged generic, or substitutable generic, drug for Coversyl. The advertisement does not represent that there are no substitutable drugs or that brand substitution is not permitted, in the sense that the doctor could not permit such substitution. Doctors would not be misled into thinking there is some regulatory bar to brand substitution for Coversyl. 110 In Astrazeneca the Full Court considered whether advertising flyers that were sent to general practitioners regarding a particular asthma medication were misleading or deceptive under s 52 of the Act. The flyers contained references to a clinical study and its results. The Court noted that in order to determine whether any breach of s 52 had occurred, it was necessary to determine whether the conduct would be likely to lead to a misconception arising in the mind of that section of the community to whom the conduct was directed (at [34]; [37]). The Court noted that the representations in the advertisement were not made to identified individuals or to the public at large (at [35]) but to ' ordinary or reasonable members of the community of general practitioners throughout Australia ...'. The representations as claimed were not misleading or deceptive when viewed, in their entirety, as marketing documents directed to that class (at [24]; [42]). It can be assumed that the class of medical practitioners would, as in Astrazeneca , have some knowledge of clinical trials and that the class would accordingly view such material in a different fashion to the public at large. 111 I do not accept that the references to non-clinical factors would be understood by doctors as referring to regulatory matters. Doctors, by reason of education and experience, would understand that drugs are publicly available as a result of expenditure on research by innovator or originator companies. These are factors of importance to some medical practitioners (see [63]). GenRx submits that, although it is apparent that some of the reasons are not clinically based, doctors would be misled into thinking the reasons are ' reasonable or proper reasons to take into consideration when prescribing Coversyl '. They may be so led but it would not be misleading. Doctors are entitled, in their discretion, to take into account matters that are clinically related, although not specifically concerning the medication for that patient. For some ordinary and reasonable doctors, such as Drs Barlow, Ferrari, Flecker and Lambie, investment by originator companies in Australia and the undertaking of research, funded by profit on existing drugs, are important, reasonable and proper reasons for ticking the box to prevent generic substitution. Doctors would understand the factors of "investment in Australia", "all profit to research" and "patient and doctor support" as linked to the company that manufactures and sells Coversyl and not as factors relevant to regulatory decisions. They would understand that they were being asked to take those factors into account in forming the decision whether or not to tick the box on the prescription. 112 These representations, in the first whole page advertisement, are not misleading as alleged.


case_text: The inquiry as to whether a representation to the public or a section of the public contravenes s 52 of the Act is a question of fact to be decided by considering what was said and done against surrounding circumstances ( Campomar Sociedad, Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45). 57 This is not a case of representations alleged to have been made to specific individuals. GenRx's case is that the representations in the printed stamp and in the advertisements are made to the public or a section of the public. A prescription written by a medical practitioner provides information to the pharmacist and to the patient for whom the prescription was written. The sections of the public to whom the stamp representations are directed are medical practitioners (doctors), pharmacists and patients who take or who are prescribed new Coversyl. 58 No reason has been advanced to sub-divide these groups into any sub-classes or areas of specialisation. The question is whether the advertisements would be likely to lead to a misconception arising in the minds of that section of the public to whom the conduct, or silence, has been directed. Where, as here, the representations are made to various classes of the public, the characteristics of the members of that class are relevant in order to determine whether a misconception is likely to arise from the conduct alleged ( Campomar at [98] [103]; Astrazeneca at [34]). The question is whether a not insignificant number of doctors, pharmacists or patients will be misled ( ConAgra Inc v McCain Foods (Australia) Pty Ltd [1992] FCA 159 ; (1992) 33 FCR 302 at 380-381 per French J; National Exchange Pty Ltd v ASIC (2004) ATPR 42-000 at [70]). It is therefore necessary to assess the reactions or likely reactions of the members of each class to whom the conduct was addressed ( Campomar at [105]). The representations are to be tested by their effect on ordinary and reasonable persons within those groups ( Campomar at [102]). 79 It is not necessary for GenRx to establish that Ms Crisp, or anyone else, was actually misled or that she took steps consequent upon her misunderstanding ( Astrazeneca at [33]). However, it is relevant that Ms Crisp laboured under an erroneous assumption as to the substitutability of new Coversyl, arising from the use of the stamp issued by Servier and used by the prescribing doctor ( Astrazeneca at [36]; Taco Bell at 202). I am not satisfied that Ms Crisp's assumption was extreme or fanciful. To the contrary it was, for a busy pharmacist who dispenses numerous different drugs daily, a reasonable reaction on the part of an ordinary and reasonable pharmacist. The stamp did not simply cause confusion or wonderment ( Campomar at [106]), it misled Ms Crisp. It caused her to take remedial action, without which she would have continued to believe that brand substitution for Coversyl was not generally permitted. Accordingly, Ms Crisp laboured under an error ( Taco Bell ). 83 Mere confusion on the part of patients is not sufficient to establish a contravention of s 52 of the Act. Where there is no evidence of actual misleading, the question raised by the pleading is whether patients were or were likely to have been misled by the use of the stamp on patient prescriptions ( Campomar at [106]; Astrazeneca at [38]).


case_text: No reason has been advanced to sub-divide these groups into any sub-classes or areas of specialisation. The question is whether the advertisements would be likely to lead to a misconception arising in the minds of that section of the public to whom the conduct, or silence, has been directed. Where, as here, the representations are made to various classes of the public, the characteristics of the members of that class are relevant in order to determine whether a misconception is likely to arise from the conduct alleged ( Campomar at [98] [103]; Astrazeneca at [34]). The question is whether a not insignificant number of doctors, pharmacists or patients will be misled ( ConAgra Inc v McCain Foods (Australia) Pty Ltd [1992] FCA 159 ; (1992) 33 FCR 302 at 380-381 per French J; National Exchange Pty Ltd v ASIC (2004) ATPR 42-000 at [70]). It is therefore necessary to assess the reactions or likely reactions of the members of each class to whom the conduct was addressed ( Campomar at [105]). The representations are to be tested by their effect on ordinary and reasonable persons within those groups ( Campomar at [102]). 130 Ordinary and reasonable doctors so misled would not be insignificant in number or proportion. I am not satisfied that ordinary and reasonable doctors, including general practitioners not specialised in hypertension and the mechanisms of blood pressure regulation, would generally have been aware of the Europa study and so discount the message otherwise conveyed by the advertisement, as did Drs Barlow and Ferrari. Indeed, Dr Flecker acknowledged that doctors might have thought that Coversyl was only listed in relation to its previously established indication of hypertension. The fact that some doctors reading the advertisement might be aware of the Europa trial and its results, or were otherwise aware that perindopril erbumine had been indicated both for hypertension and for stable coronary artery disease since 2003, does not preclude the statements in the second whole page advertisement being misleading ( ConAgra at 543 per French J). 131 It follows that the representation conveyed by the second whole page advertisement is misleading or likely to mislead doctors in its reference to "now indicated for stable coronary artery disease". By linking that statement to perindopril arginine, the advertisement represents that perindopril erbumine is not so indicated. That also amounts to a misrepresentation, as perindopril erbumine has been so indicated since 2005. 132 Servier has undertaken not to place for publication any advertisement which contains the words "Now indicated for stable coronary heart disease" or any substantially similar phrase which contains the word "now", until determination of this matter.


case_text: After GenRx sought interlocutory relief in these proceedings ( GenRx Pty Limited v Les Laboratoires Servier (2007) 71 IPR 606) , Servier undertook not to distribute the stamp further and has issued to doctors a second form of stamp. The text of that stamp, about which GenRx does not complain, is: 52 In the pleading, GenRx alleges that the stamp, when used on patient prescriptions, conveys the following express or implied representations ('the stamp representations'): 1. Brand substitution not permitted for COVERSYL. 2. αBrand substitution not permitted for COVERSYL. 3. Brand substitution for New COVERSYL is never permissible. 4. There are no other perindopril products substitutable with New COVERSYL. 53 GenRx submits that the stamp conveys an impression of a bulk, blanket prohibition on substitution for Coversyl. That impression, GenRx submits, is reinforced by the use of the passive voice in the stamp. In that regard GenRx contrasts the second stamp, which uses the active voice and makes it clear that it is the doctor's decision not to permit substitution. GenRx accepts that Servier is entitled to attempt to persuade doctors to tick the box. However, GenRx submits, in the stamp and in each advertisement Servier has represented that there is some regulatory prohibition on generic substitution of Coversyl. GenRx submits that those seeing the stamp will be misled into thinking the stamp, with a pre-ticked box, comes from a regulatory body such as the TGA. GenRx says that the stamp therefore represents that there is a regulatory reason why there can be no substitution for Coversyl and that doctors who accept this will use the stamp to convey that message to the pharmacist.