case_text: There are many instances where important and significant decisions need to be made, and full-time public servants or servants of the Crown are regarded as capable of exercising independent judgements in making such decisions. Without statutory permission, it is not to be assumed that a public servant or servant of the Crown in whom a statutory power has been reposed will follow orders given by a superior. In fact, if a public servant or servant of the Crown did not exercise for himself or herself a discretion given to him or her to exercise, then the decision made would be invalid: see, for e.g. R v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27 ; (1965) 113 CLR 177 at 201-202. There is nothing in the nature of the powers to be exercised, the context of their exercise, or the character of the office of inspector which leads to the conclusion that the new criteria could not be applied to the appointment of an inspector. In this case I do not see that the appointment of a public servant, who otherwise satisfies the criteria in s 21R, is an appointment that would be contrary to the scheme of the Act as a whole, or Pt IIA dealing with Victorian Aboriginal cultural heritage. 41 I observe that, to the extent it is relevant, at least nine of the inspectors must have been public servants who satisfied the new criteria before the suspension decision, having been appointed under the Act and having been presumably regarded as being able to fulfil the function of inspector. I make this observation in view of the fact that the suspension of nine inspectors was lifted because they already satisfied the new criteria to be applied by the respondent. 42 Therefore, in my view, putting aside any question of change of legislation, the new criteria could be applied under the Act in the appointment, suspension and removal of inspectors by the respondent.


case_outcome: cited

case_text: My own view is that s 21R confers a power to appoint, not a power to make, grant or issue any instrument. Section 21R does not talk in terms of the relevant act (the appointment) being made "by" or "pursuant to" any form of writing, but confers a power to make a decision to appoint, which incidentally to that decision, is to be in writing: see discussion in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 at 172; affirmed by the Full Court in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307; Barton v Croner Trading Pty Ltd (1984) 3 FCR 95 at 110; and Edenmead Pty Ltd v Commonwealth (1984) 4 FCR 348 at 352-353.


case_outcome: considered

case_text: The applicants relied upon the decisions in Nguyen v Minister for Health and Ageing [2002] FCA 1241 and Registrar for Liquor Licences v Iliadis (1988) 19 FCR 311 in support of the proposition that an implied power to revoke or suspend an appointment should not be construed as capable of being exercised with less constraints than the express power to appoint. These cases do not assist in the interpretation of the power to suspend or remove as conferred by s 21R as affected by s 33(4) of the Acts Interpretation Act , and do not stand for the broad proposition contended for by the applicants.


case_text: Matters of policy and implementation of policy (including change in qualifications for appointment), and the views of the Victorian community or the respondent's perception about those views, are ones which the respondent, upon which a discretionary power has been conferred, may take into account. In Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at 565 per Hayne J (with whom Gleeson CJ and Gummow J agreed at 538-539) discussed the nature of the types of matters a minister with a discretionary power might take into account: Conferring power on a Minister may well indicate that a particularly wide range of factors and sources of information may be taken into account, given the types of influence to which Ministers are legitimately subject. See also Murphyores Incorporated Pty Ltd v Commonwealth [1976] HCA 20 ; (1976) 136 CLR 1 at 13-14; Hot Holdings Pty Limited v Creasy [2002] HCA 51 ; (2002) 210 CLR 438; South Australia v O'Shea [1987] HCA 39 ; (1987) 163 CLR 378.


case_outcome: followed

case_text: There are two matters requiring consideration before it can be held that s 33(3) applies to s 21R. The first matter is whether an appointment made under s 21R of the Act is an "instrument" within the meaning of s 33(3). In X v Australian Crime Commission [2004] FCA 1475 ; (2004) 139 FCR 413 at 421, Finn J made the following observation in considering the term "instrument" for the purposes of s 33(3): There are two streams of Federal Court authority which have taken inconsistent views on this question. One stream would limit the class of instruments to which the term applies to instruments of a legislative character. The other would extend it to executive or administrative instruments. This conflict has recently been reviewed at length by Emmett J in Heslehurst v Government of New Zealand [2002] FCA 429 ; (2002) 117 FCR 104 at [12] ff (for the purposes of s 33(3)) and by the Victorian Court of Appeal in R v Ng (for the purposes of s 46). Both decisions rejected the limitation of these provisions to legislative instruments. Ng , I would note, has recently been applied by Ryan J in Glaxsmithkline Australia Pty Ltd v Anderson [2003] FCA 617 ; (2003) 130 FCR 222 at [28] . In my respectful view, the conclusions of Emmett J and of the Court of Appeal are compelling and ought be followed. I am prepared to accept in favour of the applicant that the conclusions of Emmett J and of the Court of Appeal ought to be followed by me for the purposes of these proceedings.


case_text: It may be accepted as a general statement of principle that if directions are given by a court or tribunal that have the effect of fettering cross-examination so that a witness's evidence on relevant issues cannot be properly tested, there is a denial of procedural fairness. But it must be emphasised that this proposition is subject to the discretion of the decision maker to control cross-examination so as to ensure relevance and to guard against repetition and prolixity; see R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13 at 34-35; Australian Postal Commission v Hayes (1989) 87 ALR 283 at 289 per Wilcox J.


case_text: Whilst not opposed to the filing of the supplementary notice, CRS points out that many of the seventeen questions stated in the original and supplementary notice do not state questions of law; see TNT Skypak International (Aust) Pty Limited v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178; Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at [11]; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Limited [2003] FCAFC 244 ; (2003) 133 FCR 290 at [42] .


case_title: Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321


case_outcome: referred to

case_title: Lawrance v President, Administrative Appeals Tribunal [2005] FCA 79

case_text: The assumption is without foundation. I refused interlocutory relief on 10 February 2005; see [2005] FCA 79. Leave to appeal from my judgment was refused by Hely J on 3 May 2005; see [2005] FCA 541.


case_title: Lawrance v Administrative Appeals Tribunal [2005] FCA 541


case_title: Lawrance v President, Administrative Appeals Tribunal [2006] FCA 342

case_text: Most of the background facts, as well as the decision of Senior Member Kelly, have been set out in my judgment in matter NSD 55 of 2005, handed down contemporaneously with this judgment; see Lawrance v President, Administrative Appeal Tribunal [2006] FCA 342. 5 It is necessary to add only briefly to what I have already said about the background and the decision under appeal. 6 In her request for documents under the FOI Act dated 23 February 2004, the applicant explained that whilst she had "never been aware or conscious of having had CRS involvement in any aspect of my employment or my life", she came to believe "with hindsight" that there had been some sort of involvement.


case_text: In Minh v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 304 at 314, Weinberg J observed that the duty to act fairly may be breached if a party is not given a reasonable opportunity to make relevant submissions, to give evidence and to call witnesses. But his Honour went on to say:- "At the same time, however, the opportunity to make relevant submissions, to give evidence, and to call witnesses in support which must be afforded will always be qualified by a requirement that the material and arguments sought to be presented must be sufficiently relevant and significant to warrant being received." 29 The power of the AAT to control the proceeding so as to ensure compliance with these principles is found in s 33(1)(a) of the AAT Act . That subsection provides that the procedure of the AAT is, subject to the AAT Act and the Regulations and any other enactment, within the discretion of the AAT. 30 There were only two real issues in the proceeding before Senior Member Kelly. The first was whether there were documents in the possession of CRS which were the subject of the applicant's request. The second was whether CRS had taken all reasonable steps to search for such documents. The learned Senior Member was plainly entitled to control the hearing and to limit examination or cross-examination so as to ensure some semblance of relevance to the real issues.


case_title: R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13


case_title: TNT Skypak International (Aust) Pty Limited v Federal Commissioner of Taxation (1988) 82 ALR 175


case_text: material facts in Purchas, in the matter of Estore Pty Limited (in liq) [2006] FCA 1222 and Purchas, in the matter of Worldwide Workers Pty Limited (in liq) [2006] FCA 1223 are indistinguishable in substance from this case. Directions will be given and an order for costs will be made for the same reasons as those appearing in the aforementioned cases.


case_title: Purchas, in the matter of Worldwide Workers Pty Limited (in liq) [2006] FCA 1223


case_text: both propositions are of some novelty in circumstances such as the present, counsel is correct in submitting that there is some support to be derived from the decisions of Young CJ in Eq in Deputy Commissioner of Taxation v ACN 080 122 587 Pty Ltd [2005] NSWSC 1247 and Austin J in Re Currabubula Holdings Pty Ltd (in liq); Ex parte Lord (2004) 48 ACSR 734; (2004) 22 ACLC 858, at least so far as standing is concerned.


case_title: Re Currabubula Holdings Pty Ltd (in liq); Ex parte Lord (2004) 48 ACSR 734; (2004) 22 ACLC 858


case_text: 94(1) of the EMDG Act provides that the provisions of subsection (2) thereof apply if the requirements specified in ss 94(1)(a) and 94(1)(b) are satisfied. The fulfilment of the requirements in s 94(1)(b)(ii) is conditional upon the satisfaction of the CEO of Austrade, and such satisfaction is to be determined by the application of the Guidelines. Once a determination has been made that the requirements are met, s 94(2) then directs Austrade to treat the particulars of the previous owner as being those of the applicant. Such determination requires a judgment to be made by the CEO of Austrade. As was observed in Australian Postal Corporation v Forgie and Another [2003] FCAFC 223 ; (2003) 130 FCR 279 at [40] of a decision making process: ' [t] his intellectual process involves matters of judgment and degree' . That is, a decision is required. In the application of both s 94(1)(b)(i) and (ii) a value judgment must be made by the decision-maker. Under s 94(1)(b)(i) a decision is required to be made in respect of the question whether the new owner is carrying on the old business or a part thereof. It follows that there has been a decision made by Austrade in respect of which an appeal may lie to this Court pursuant to s 44 of the AAT Act. Accordingly, the Court rejects the submission that the requirements of s 94(1) constitute jurisdictional facts, and that s 94(1)(b)(i) is capable of determination by objective facts.


case_text: Comcare v Etheridge and Others [2006] FCAFC 27 ; (2006) 149 FCR 522 at 527 the Full Court considered the nature of an appeal under s 44(1) of the AAT Act and determined that an appeal 'on a question of law' is narrower than an appeal 'that merely involves a question of law' . The Court at 527 referred to the observations in Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 38 AAR 55 which expressed approval of the observation of Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 527 where his Honour said: If the question, properly analysed, is not a question of law no amount of formulary like "erred in law" or "was open as a matter of law" can make it into a question of law.


case_title: Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 38 AAR 55


case_text: Court concludes that, since no factual questions are involved in such determination, the question as submitted is one solely of law 'directing the Court's attention to the manner in which the Tribunal failed to discharge its obligations according to law...' : see Collins v Administrative Appeals Tribunal and Another [2007] FCAFC 111 ; (2007) 163 FCR 35 at [55] .


case_title: Comcare v Etheridge and Others [2006] FCAFC 27 ; (2006) 149 FCR 522


case_text: Corporation of the City of Enfield v Development Assessment Commission and Another [2000] HCA 5 ; (1999) 199 CLR 135 at [28] the High Court of Australia observed: The term "jurisdictional fact" (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion.


case_text: Gedeon v Commissioner of New South Wales Crime Commission [2008] HCA 43 ; (2008) 82 ALJR 1465 at [43] the High Court said: The expression "jurisdictional fact" was used somewhat loosely in the course of submissions. Generally the expression is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker.


case_text: The applicant contends that the Act does not apply to her and therefore the divestiture order is invalid because s 4(6)(a) is not a valid law of the Federal Parliament. In the alternative the applicant contends that if it is a valid law, nevertheless, the power in s 21A(4) was not engaged in this case because the requirements of s 25(1D) were not met and therefore the divestiture order is invalid. The applicant further contends that even if these two contentions fail, the divestiture order made by the respondent is invalid because, before it was made, the applicant was not accorded procedural fairness. In the further alternative, the applicant contends that the order is invalid because the respondent was not in fact satisfied that the acquisition is contrary to the national interest within s 21A(4). In her application and statement of claim the applicant also contended that the divestiture order is invalid because the respondent applied a policy and did not genuinely consider the merits of the matter before him or because his decision was unreasonable in the Wednesbury sense ( Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223). At the hearing of the application, those two submissions were abandoned. 25 In relation to the applicant's first contention, the contention may be dealt with by reference to the facts stated to this point. In relation to the applicant's other contentions, I will need to set out the facts in more detail when considering the contentions. 26 Notices under s 78B of the Judiciary Act 1903 (Cth), were given but none of the Attorneys-General sought to intervene. The Solicitor-General for the Commonwealth appeared for the respondent.


case_text: In those circumstances, it is not strictly necessary for me to consider the respondent's alternative submission that in 2004 there was an acquisition within s 21A(4) when the applicant's former husband transferred his interest in the property to the applicant, who then became the sole registered proprietor of the property. The submissions on this issue went no further than the question of whether or not there had been an 'acquisition' within s 21A(4) in 2004. The applicant submits that by reference to general concepts of real property law there was no acquisition in 2004 because the applicant, who was a joint tenant of the property, was already (ie, prior to becoming the sole registered proprietor) seised of the whole of the estate or interest: Bradbrook MacCallum and Moore, Australian Real Property Law (3 rd ed, 2002) 340 [10.02]. It has been said that a joint tenant cannot assign his or her interest but, rather, one of two joint tenants may enter into a transaction by way of release of the estate: Burton v Mayor etc of London Borough of Camden [2000] UKHL 8 ; [2000] 2 AC 399. In response to this submission of the applicant, the respondent referred to s 12A of the Act . That section relevantly provides: '(3) For the purposes of this Act , a person acquires an interest in Australian urban land even if: (a) the person acquires the interest jointly with another person or persons; (b) the person has previously acquired an interest in Australian urban land; or (c) the interest is an increase in the amount of an existing interest of the person in Australian urban land.' 74 I think there was an increase in the applicant's interest within the terms of s 12A(3)(c) when she became the sole registered proprietor of the property and therefore an 'acquisition' within the Act . 75 However, there are a number of further matters which arise once this conclusion is reached and these further matters were not the subject of detailed submissions. They are as follows: 1. The respondent was aware of the proposed acquisition in 2004 and, in fact, agreed to it taking place, although he did so on the applicant agreeing to sell the property and without the formal approval procedures prescribed by the Act being followed. 2. A question may arise as to whether the power to make an order requiring the applicant to dispose of the whole of the property is engaged, having regard to the particular interest acquired by the applicant in 2004. 3. The minute containing the recommendations adopted by the respondent makes it clear that it was the acquisition in 1995 which formed the basis of the order made by the respondent under s 21A(4). A question may arise as to whether, in those circumstances, the respondent's decision can only be considered by reference to that acquisition.


case_text: A narrower view of the aliens power has been taken on occasion (see Gaudron J in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64 ; (1992) 176 CLR 1 at 57) but I am satisfied that the views expressed by Brennan J in Cunliffe v Commonwealth (supra) are the principles binding on me. The applicant argued the matter by reference to those principles.


case_text: In Kioa , it was also made clear that an applicant entitled to natural justice is entitled to be told of adverse information obtained by the decision-maker from third parties and which he or she proposes to take into account and to be given the opportunity to respond to that information. Brennan J referred to the obligation and identified its limits in the following passage (at 628-629) (footnotes omitted): 'A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise: Kanda v Government of Malay ; Ridge v Baldwin per Lord Morris; De Verteuil v Knaggs . The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made. Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed. As Lord Diplock observed in Bushell v Environment Secretary : "To 'over-judicialise' the inquiry by insisting on observance of the procedures of a court of justice which professional lawyers alone are competent to operate effectively in the interests of their clients would not be fair." Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account. The allegation in par 22 was apparently credible, relevant and damaging. The failure to give Mr Kioa an opportunity to deal with it before making an order that Mr and Mrs. Kioa be deported left a risk of prejudice which ought to have been removed. There was nothing in the circumstances of the case - neither in the administrative framework created by the Act nor in any need for secrecy or speed in making the decision - which would have made it unreasonable to have given Mr and Mrs Kioa that opportunity. The failure to give Mr Kioa that opportunity amounts to a non-observance of the principles of natural justice.' The principle referred to in this passage is well established and, for present purposes, needs no further elaboration (see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (' Alphaone ') at 590-591. 100 The principles governing the applicant's third submission are relatively clear, although they can give rise to difficulties in terms of application. Ordinarily, a decision-maker is not required to invite comment from an applicant as to the decision-maker's provisional views or mental processes ( F Hoffman-La Roche and Co AG v Secretary for Trade and Industry [1975] AC 295 per Lord Diplock at 369). However, a decision-maker may be under an obligation to invite comment from an applicant on an adverse conclusion based on known material if that conclusion is not an obvious and natural conclusion from that material. In Alphaone , the Full Court of this Court (Northrop, Miles and French JJ) put the matter in the following way (at 591-592): 'Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.' 102 The principle was referred to in passing by Gleeson CJ, Gummow and Heydon JJ in Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 at 219 [21] - [22] (footnotes omitted): 'Further, it does not readily appear how the principles of procedural fairness could be engaged in the manner contended for by the prosecutor. It may be accepted, as the prosecutor submitted, that his entitlement extended to the rebuttal of, and comment by way of submission upon, adverse material received by the decision-maker from other sources. That stops short of supporting a complaint of the nature essentially involved here of the "pitch" or "balance" in the statement of relevant considerations in the Submission. Further, as indicated above, there is no substance in any complaint of unfair or prejudicial "lack of balance". Reference was made by the prosecutor to the decision of the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd . Nothing there said supports any different conclusion to that just expressed. The Full Court's statement of principle was as follow: "Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question."' 103 Alphaone was also referred to in the recent decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63. That case raised a question as to whether the Refugee Review Tribunal had advised, or sufficiently advised, an applicant for review of matters it relied on in dismissing the application. The case turned on the obligation of the Tribunal under s 425 of the Migration Act 1958 (Cth) and the facts of the case. The Court did make some observations about what was said to be a dichotomy between an obligation to advise of adverse conclusions which have been arrived at which would not obviously be open on the known material, and the lack of an obligation to advise of a decision-maker's mental processes or provisional views. After referring to the passage in Alphaone set out in [100] above, the Court said (at [30], [31] and [32]) (footnotes omitted) : 'Particular attention was directed in argument in this Court, as it had been in the courts below, to the Tribunal's conclusion that the three identified elements of the appellant's story were not "plausible". Was that a conclusion "which would not obviously be open on the known material"? Or was it no more than a part of the "mental processes" by which the Tribunal arrived at its decision? Stated in this way, the argument seeks to elucidate the content of the requirements of procedural fairness by setting up a dichotomy. There are two reasons to exercise considerable care in approaching the problem in that way. First, it is far from clear that the two categories that are identified (conclusions not obviously open on the known material, and mental processes of decision-making) encompass all possible kinds of case that may fall for consideration. Secondly, there is a very real risk that focusing upon these two categories will distract attention from the fundamental principles that are engaged. In Alphaone the Full Court rightly said: "It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material." (emphasis added) The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited "to give evidence and present arguments relating to "the issues arising in relation to the decision under review". (emphasis added) The reference to "the issues arising in relation to the decision under review" is important.' Towards the end of the reasons for judgment, the Court made the following observation (at [49]): 'Finally, even if the issues that arise in relation to the decision under review are properly identified to the applicant, there may yet be cases which would yield to analysis in the terms identified by the Full Court of the Federal Court in Alphaone . It would neither be necessary nor appropriate to now foreclose that possibility.'


case_text: I am not prepared to infer that the respondent was not in fact satisfied that the acquisition is contrary to the national interest. In the notice of the order dated 23 February 2005 ([7] above) the respondent states that he is satisfied that the acquisition 'is contrary to the national interest'. The minute refers to the provisions of s 21A(4) and to that part of the subsection which refers to the national interest. It is clear that it was a matter which was brought to the respondent's attention. It is true that in terms of the minute the particular matters relevant to the national interest are not clearly identified. Furthermore, the respondent did not give reasons for his decision and he did not give evidence. However, care needs to be exercised in this area because of the broad nature of the concept of the national interest. A court will be slow to interfere with a Minister's decision as to what is in the national interest on the ground that a matter not taken into account was relevant to the national interest or a matter taken into account was irrelevant to the national interest: Leisure Entertainment Pty Ltd v Willis (1996) 64 FCR 205 at 220; Conwest Global Communications Corporation v Treasurer of the Commonwealth of Australia (1997) 147 ALR 509 at 525. A court will also be slow to interfere with a Minister's decision as to what is in the national interest under the guise of an argument that it should be inferred from the material before the decision-maker that he or she was not in fact satisfied that the acquisition was contrary to the national interest.


case_text: In Cunliffe v The Commonwealth [1994] HCA 44 ; (1994) 182 CLR 272 (at 315-316) Brennan J (as he then was) made the following observations as to the aliens power (at 315-316) (footnotes omitted): 'The power to make laws with respect to aliens, unlike the majority of the powers conferred by s 51 of the Constitution , is not a power to make laws with respect to a function of government, a field of activity or a class of relationships: it is a power to make laws with respect to a class of persons. If, in its operation, a law affects a class of persons with respect to whom there is a power to make laws, the law may have the character of a law with respect to persons of that class. But it is neither necessary nor sufficient that the law should change, regulate or abolish the rights, duties, powers and privileges of the relevant class treated merely as members of the general public or of a substantially wider class than the class of persons who constitute the subject matter of the power. For example, a law which requires notification of symptoms of a disease after entry to Australia by aliens and citizens indifferently is not a law with respect to aliens though it may be a law with respect to quarantine. But if and to the extent that the law discriminates between the public at large and the relevant class of persons (whether textually or in its operation), there is an indicium that the law is a law with respect to persons of that class. That indicium may suffice to give the law the character of a law with respect to persons of that class and, if the discrimination is in a matter peculiarly significant to that class, the law will bear that character. In this respect, the aliens power is similar to the corporations power considered in Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd . In that case, s 45D(1)(b)(i) of the Trade Practices Act 1974 (Cth), which protected the businesses of trading corporations was held to be supported by s 51(xx) of the Constitution as a law with respect to trading corporations.' 51 A narrower view of the aliens power has been taken on occasion (see Gaudron J in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64 ; (1992) 176 CLR 1 at 57) but I am satisfied that the views expressed by Brennan J in Cunliffe v Commonwealth (supra) are the principles binding on me. The applicant argued the matter by reference to those principles.


case_title: Director of Public Prosecutions, Re; Ex parte Lawle r [1994] HCA 10 ; (1994) 179 CLR 270


case_text: The principles governing the applicant's third submission are relatively clear, although they can give rise to difficulties in terms of application. Ordinarily, a decision-maker is not required to invite comment from an applicant as to the decision-maker's provisional views or mental processes ( F Hoffman-La Roche and Co AG v Secretary for Trade and Industry [1975] AC 295 per Lord Diplock at 369). However, a decision-maker may be under an obligation to invite comment from an applicant on an adverse conclusion based on known material if that conclusion is not an obvious and natural conclusion from that material. In Alphaone , the Full Court of this Court (Northrop, Miles and French JJ) put the matter in the following way (at 591-592): 'Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.'


case_text: In Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 (' Kioa '), Mason J (as he then was) (at 582) referred to the fundamental rule of the common law doctrine of natural justice that, generally speaking, a person is entitled to know the case against him and to be given an opportunity of replying to it. Brennan J (at 612-616) referred to the authorities to the effect that the content of the rules of natural justice will depend on the circumstances of the particular case, including the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise. Brennan J considered whether there was an irreducible minimum required by the principles of natural justice, namely, that 'the person concerned should have a reasonable opportunity of presenting his case' ( Russell v Duke of Norfolk [1949] 1 All ER 109 per Lord Tucker at 118). Brennan J said (at 615-616): 'Yet Tucker LJ said in Russell v Duke of Norfolk [179] , that there is an irreducible minimum required by the principles of natural justice, namely, that "the person concerned should have a reasonable opportunity of presenting his case " . If his Lordship's view be right, it would be necessary to hold that if, in some circumstances, perhaps unusual circumstances, a power may need to be exercised peremptorily, no exercise of that power is conditioned on observance of the principles of natural justice. But it would be wrong to attribute to a legislature such an intention. Rather, the intention to be implied when the statute is silent is that observance of the principles of natural justice conditions the exercise of the power although in some circumstances the content of those principles may be diminished (even to nothingness) to avoid frustrating the purpose for which the power was conferred. Accepting that the content of the principles of natural justice can be reduced to nothingness by the circumstances in which a power is exercised, a presumption that observance of those principles conditions the exercise of the power is not necessarily excluded at least where, in the generality of cases in which the power is to be exercised, those principles would have a substantial content.' 99 In Kioa , it was also made clear that an applicant entitled to natural justice is entitled to be told of adverse information obtained by the decision-maker from third parties and which he or she proposes to take into account and to be given the opportunity to respond to that information. Brennan J referred to the obligation and identified its limits in the following passage (at 628-629) (footnotes omitted): 'A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise: Kanda v Government of Malay ; Ridge v Baldwin per Lord Morris; De Verteuil v Knaggs . The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made. Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed. As Lord Diplock observed in Bushell v Environment Secretary : "To 'over-judicialise' the inquiry by insisting on observance of the procedures of a court of justice which professional lawyers alone are competent to operate effectively in the interests of their clients would not be fair." Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account. The allegation in par 22 was apparently credible, relevant and damaging. The failure to give Mr Kioa an opportunity to deal with it before making an order that Mr and Mrs. Kioa be deported left a risk of prejudice which ought to have been removed. There was nothing in the circumstances of the case - neither in the administrative framework created by the Act nor in any need for secrecy or speed in making the decision - which would have made it unreasonable to have given Mr and Mrs Kioa that opportunity. The failure to give Mr Kioa that opportunity amounts to a non-observance of the principles of natural justice.' The principle referred to in this passage is well established and, for present purposes, needs no further elaboration (see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (' Alphaone ') at 590-591.


case_title: Leisure Entertainment Pty Ltd v Willis (1996) 64 FCR 205


case_title: Minister for Immigration and Multicultural and Indigenous Affairs, Re, ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212

case_text: The principle was referred to in passing by Gleeson CJ, Gummow and Heydon JJ in Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 at 219 [21] - [22] (footnotes omitted): 'Further, it does not readily appear how the principles of procedural fairness could be engaged in the manner contended for by the prosecutor. It may be accepted, as the prosecutor submitted, that his entitlement extended to the rebuttal of, and comment by way of submission upon, adverse material received by the decision-maker from other sources. That stops short of supporting a complaint of the nature essentially involved here of the "pitch" or "balance" in the statement of relevant considerations in the Submission. Further, as indicated above, there is no substance in any complaint of unfair or prejudicial "lack of balance". Reference was made by the prosecutor to the decision of the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd . Nothing there said supports any different conclusion to that just expressed. The Full Court's statement of principle was as follow: "Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question."'


case_title: Mutual Pools and Staff Pty Ltd v The Commonwealth [1994] HCA 9 ; (1993) 179 CLR 155

case_text: Certain laws have been held to fall outside s 51(xxxi) and within another supporting head of power. Examples include laws which impose a fine or penalty or laws effecting or authorising seizure of the property of enemy aliens or the condemnation of prize. The test for determining if a law falls outside the scope of s 51(xxxi) has been variously stated. In Mutual Pools and Staff Pty Ltd v The Commonwealth [1994] HCA 9 ; (1994) 179 CLR 155 Brennan J said (at 179-180): 'Although s 51(xxxi) abstracts from other heads of power the power of acquisition which that paragraph itself confers, it does not thereby abstract the power to prescribe the means appropriate and adapted to the achievement of an objective falling within another head of power where the acquisition of property without just terms is a necessary or characteristic feature of the means prescribed. In each of the cases in which laws for the acquisition of property without the provision of just terms have been held valid, such an acquisition has been a necessary or characteristic feature of the means selected to achieve an objective within power, the means selected being appropriate and adapted to that end. Therefore a law which selects and enacts means of achieving a legitimate objective is not necessarily invalid because the means involve an acquisition of property without just terms. What is critical to validity is whether the means selected, involving an acquisition of property without just terms, are appropriate and adapted to the achievement of the objective. The absence of just terms is relevant to that question, but not conclusive. Where the absence of just terms enhances the appropriateness of the means selected to the achievement of the legitimate objective, the law which prescribes those means is likely to fall outside s 51(xxxi) and within another supporting head of power. If it were otherwise, the guarantee of just terms would impair by implication the Parliament's capacity to enact laws effective to fulfil the purposes for which its several legislative powers are conferred. It would be erroneous so to construe grants of legislative power as to fetter their exercise by implying that s 51(xxxi) precluded the enactment of laws under other heads of power where the laws involved an acquisition of property without just terms, even though laws of that kind are appropriate and adapted to the execution of those powers in the public interest.'


case_text: Allsop J applied this principle in Navarrete v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1723.


case_outcome: distinguished

case_title: Patterson, Re; Ex parte Taylor (2001) 207 CLR 291

case_text: The applicant submits that the question whether the Treasurer is satisfied that an acquisition is contrary to the national interest is a jurisdictional fact and that it is not made out if the matters the Treasurer took into account do not support a reasonable and rational conclusion to that effect. She referred to the reasons for judgment of Kirby J in Re Patterson; Ex parte Taylor (2001) 207 CLR 291, in particular at 504-505 [338]. The reasons of Kirby J do seem to support the submission advanced by the applicant, but I would not apply them in this case. None of the other Justices in Re Patterson; Ex parte Taylor (supra) took a similar approach. For example, Gaudron J, who did discuss the concept of national interest, decided the case on the basis that the Minister asked herself the wrong question (at 417-420 [74]-[82]). If there is a jurisdictional fact in this case it is not whether the acquisition is contrary to the national interest but, rather, whether the Treasurer was satisfied that the acquisition is contrary to the national interest. A question of that nature would not turn, ordinarily at least, on the Court's conclusion as to whether the material before the Minister provided a reasonable or rational foundation for the conclusion reached by the Minister. 122 I reject the applicant's submission that the respondent was not in fact satisfied that the acquisition is contrary to the national interest. 123 For these reasons I make the following orders: 1. An order in the nature of certiorari quashing the order made by the respondent on 23 February 2005 under s 21A(4) of the Foreign Acquisitions and Takeovers Act 1975 (Cth) ('the Act') and relating to the land known as 481 Esplanade, Grange, in the State of South Australia, being the said land comprised in File Plan 42, Allotment 6, Hundred: Yatala; Subdivision: Grange ('the property'). 2. An order in the nature of mandamus, requiring the respondent to exercise his discretion pursuant to s 21A(4) of the Act and relating to the property according to law.


case_text: I was referred to the authorities which have considered the circumstances in which a legislative provision which is partially invalid will be read down: Pidoto v The State of Victoria [1943] HCA 37 ; (1943) 68 CLR 87 per Latham CJ at 108-111; Victoria v The Commonwealth (supra) per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ at 501-503. But for s 5A there might have been some difficulties in the way of reading down s 4(6)(a) so that it applied only to non-citizens not ordinarily resident in Australia. For example, there would be the difficulty of a law expressed in general terms and arguably no clear guide as to Parliament's intention as to an appropriate limitation. However, I do not think that those types of difficulties arise here, because by providing in s 5A what is in effect a statutory statement or definition of non-citizens who do and do not fall within the definition of natural persons caught by s 4(6)(a) the Federal Parliament has sufficiently revealed an intention that that subsection should operate in relation to non-citizens even if it is otherwise invalid. Section 4(6)(a) insofar as it applies to non-citizens is a valid exercise of the aliens power. 56 The applicant made reference to the Federal Parliament's power to make laws with respect to the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws (s 51(xxxi)). Initially, the applicant contended that ss 4(6) and 21A of the Act could not be justified by reference to this head of power because, first, the acquisition was not for any purpose in respect of which the Parliament had power to make laws, and secondly, the acquisition of property was not on just terms. At the hearing, counsel for the applicant said that he was prepared to concede for the purposes of the argument that if there was an acquisition of property it was on just terms. The respondent contends first that ss 4(6) and 21A stand outside the scope of s 51(xxxi) and, secondly, that in any event, there was no acquisition of property within the terms of s 51(xxxi). In my opinion, both of the respondent's submissions should be accepted.


case_text: The scope of the external affairs power has been considered by the High Court in a number of recent decisions. Both parties referred extensively to the decisions in Polyukhovich v The Commonwealth [1991] HCA 32 ; (1991) 172 CLR 501 (' Polyukhovich ') and Victoria v The Commonwealth (Industrial Relations Case) [1995] HCA 45 ; (1995) 187 CLR 416 (' Victoria v The Commonwealth '). 30 In Polyukhovich , Dawson J said of the external affairs power (at 632): '[T]he power extends to places, persons, matters or things physically external to Australia. The word "affairs" is imprecise, but is wide enough to cover places, persons, matters or things. The word "external" is precise and is unqualified. If a place, person, matter or thing lies outside the geographical limits of the country, then it is external to it and falls within the meaning of the phrase "external affairs".' The reasons for judgment of the other Justices were to similar effect: Mason CJ at 528-531; Deane J at 599-603; Gaudron J at 695-696; McHugh J at 712-714. 31 In Victoria v The Commonwealth, Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ said (at 485) (footnotes omitted): 'Of course the scope of the legislative power is not confined to the implementation of treaties. The modern doctrine as to the scope of the power conferred by s 51(xxix) was adopted in Polyukhovich v The Commonwealth . Dawson J expressed the doctrine in these terms: "[T]he power extends to places, persons, matters or things physically external to Australia. The word 'affairs' is imprecise, but is wide enough to cover places, persons, matters or things. The word 'external' is precise and is unqualified. If a place, person, matter or thing lies outside the geographical limits of the country, then it is external to it and falls within the meaning of the phrase 'external affairs'." Similar statements of the doctrine are to be found in the reasons for judgment of other Justices: Mason CJ; Deane J; Gaudron J; and McHugh J. They must now be taken as representing the view of the Court.' 33 Gleeson CJ referred to the plaintiff's argument to the effect that the external affairs power was limited to a power to make laws with respect to relations between Australia and other countries. He said that to accept that argument would involve overruling the decision in Polyukhovich . Gleeson CJ held that Polyukhovich had been correctly decided and he said (at [10]) (footnotes omitted): 'For this argument to succeed, it would be necessary for the Court to depart from the decision in Polyukhovich v The Commonwealth , and to decide that the construction placed upon s 51(xxix) by every member of the Court in that case was wrong. In my view, the Court, upon reconsideration, should hold that Polyukhovich was correctly decided insofar as the decision bears upon the question of construction that arises in this case. Insofar as the decision goes beyond that, and bears, for example, upon Ch III of the Constitution , it is not presently relevant and it is unnecessary and inappropriate to say anything further about it. There was a difference between the view of s 51(xxix) taken by Mason CJ, Deane J, Dawson J, Gaudron J and McHugh J, on the one hand, and the views of Brennan J and Toohey J on the other. That difference does not affect the point presently in issue. Polyukhovich held that the external affairs power covers, but is not limited to, the matter of Australia's relations with other countries. It also includes a power to make laws with respect to places, persons, matters or things outside the geographical limits of, that is, external to, Australia. That conclusion represents the current doctrine of the Court on the external affairs power, and should be maintained because it is correct.' 34 Gummow, Hayne and Crennan JJ said (at [30]) that the modern doctrine of the scope of the power was as expressed by Dawson J in Polyukhovich (at 632). 35 Kirby J identified what he considered to be a number of difficulties with the 'geographical externality principle' and therefore put it to one side. He decided the case by reference to whether the laws were laws with respect to a 'matter of international concern' [66]-[117]. 36 It is well established that the grant of legislative power with respect to external affairs, as with other heads of power, should be construed with all the generality that the words admit. 39 The statement by Dawson J in Polyukhovich refers, among other things, to persons outside the geographical limits of Australia. 40 Clearly, a person not ordinarily resident in Australia might come to Australia from time to time, but I do not think that that means the concept of not being ordinarily resident in Australia lacks an element of externality. To say that a person is not ordinarily resident in Australia means that ordinarily that person is outside the geographical limits of Australia. 41 It follows that one matter, namely, a person not ordinarily resident in Australia, is a matter geographically external to Australia and the other matter, namely, the acquisition of Australian urban land is a matter geographically internal to Australia. 42 The question which arises is whether s 21A(4) and s 4(6)(a) must relate only to matters external to the geographical limits of Australia in order to fall within the external affairs power. If so, this law would fail to meet that test because it only operates when conduct is carried out in Australia, namely, the acquisition of urban land in Australia. The applicant submitted that Polyukovich was authority for the proposition that to fall within the external affairs power a law must deal 'entirely' or 'wholly' with a place, person, matter or thing geographically external to Australia. She referred to the reasons for judgment of Dawson J (at 641) and Gaudron J (at 695). The law in Polyukovich did deal entirely or wholly with acts, matters and things geographically external to Australia and it was held to be within the external affairs power. Their Honours' observations are to be read in that context and they are not authority for the proposition that a law only falls within the external affairs power if it deals entirely or wholly with a place, person, matter or thing geographically external to Australia. 43 I do not think the mere fact that the law is only engaged if conduct occurs within Australia of itself disqualifies the law from being a law with respect to external affairs. There seems to be no reason to say that simply because the law also relates to conduct in Australia or produces a certain result or effect in Australia that it is not a law with respect to external affairs. I reject the applicant's submission that s 4(6)(a) is invalid because it does not deal entirely with places, persons, matters or things outside the geographical limits of Australia. 44 The applicant submits in the alternative that the relevant provisions are not a law with respect to external affairs because the element of geographical externality is insufficient and because the pith and substance of the relevant provisions is conduct in Australia. 45 The question raised by that submission is not an easy one. It requires a characterisation of the relevant provisions. In Polyukhovich , Deane J said (at 602): 'Whatever may have been the position before the emergence of Australia as a fully independent sovereign State, it should now be accepted that any law which can properly be characterized as a law with respect to any matter, thing or person occurring or situate outside Australia is a law with respect to "External affairs" for the purposes of s 51(xxix). In referring to " a law with respect to any matter ... occurring ... outside Australia" , I intend to include, among other things, what Jacobs J described (see above) as "any matter or thing done or to be done or prohibited to be done outside the boundaries of the Commonwealth". As has been mentioned, that broad view of the scope of the power conforms with settled principles of constitutional construction.' 46 The relevant provisions only operate in relation to a class of persons who are geographically external to Australia. I think this can be said even though the actual criterion is that the person is not ordinarily resident in Australia. They are the only persons affected by the relevant provisions. The location of the class of persons affected by the relevant provisions is an important characteristic of them, albeit that another feature of them is conduct within Australia, that is to say, the acquisition of Australian urban land. In my opinion, for the purposes of determining whether the relevant provisions are a law with respect to external affairs, it is sufficient that the relevant provisions apply only to a class of persons geographically external to Australia. 47 In my opinion, the relevant provisions are a valid exercise of the external affairs power.


case_outcome: applied

case_text: An effective notice not having been given, the second question is whether the operation of s 25(1D) is contingent upon the giving of an effective notice. The circumstances in which an act done in breach of a condition regulating the exercise of a statutory power will invalidate that exercise were considered by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 388-390 per McHugh, Gummow, Kirby and Hayne JJ. Their Honours said that the relevant question is not whether the condition is mandatory or directory, but whether, by reference to the language of the relevant provision or provisions and the scope and object of the statute as a whole, it was a purpose of the legislation to invalidate an act done in breach of the condition. 71 In my opinion, by reason of the terms of s 25 , the operation of s 25(1D) is contingent upon the giving of an effective notice. Section 25(1) provides that the section has effect where the Treasurer receives a notice. Section 25(1D) refers to 'advice' given under s 25(1B). The 'advice' is of a decision under s 25(1A) , and a decision under s 25(1A) relates to 'the acquisition ... specified in the notice' and the decision which may be made is that there is 'no objection to the proposal specified in the notice'. Furthermore, the offence of contravening a condition referred to in s 25(1C) is linked to the advice of a decision under s 25(1B). In my opinion, there was no effective decision and therefore advice within the provisions of s 25 because there was no proposal specified in a notice and there was no proposal specified in a notice because the purported notice was not effective for the purposes of s 25(1A). 72 As far as the acquisition which took place in 1995 is concerned, s 25(1D) did not operate as a bar to the respondent exercising the power in s 21A(4). It was the acquisition which took place in 1995 which was relied on by the respondent for the purposes of his decision to make the divestiture order.


case_text: In Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 (' Kioa '), Mason J (as he then was) (at 582) referred to the fundamental rule of the common law doctrine of natural justice that, generally speaking, a person is entitled to know the case against him and to be given an opportunity of replying to it. Brennan J (at 612-616) referred to the authorities to the effect that the content of the rules of natural justice will depend on the circumstances of the particular case, including the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise. Brennan J considered whether there was an irreducible minimum required by the principles of natural justice, namely, that 'the person concerned should have a reasonable opportunity of presenting his case' ( Russell v Duke of Norfolk [1949] 1 All ER 109 per Lord Tucker at 118). Brennan J said (at 615-616): 'Yet Tucker LJ said in Russell v Duke of Norfolk [179] , that there is an irreducible minimum required by the principles of natural justice, namely, that "the person concerned should have a reasonable opportunity of presenting his case " . If his Lordship's view be right, it would be necessary to hold that if, in some circumstances, perhaps unusual circumstances, a power may need to be exercised peremptorily, no exercise of that power is conditioned on observance of the principles of natural justice. But it would be wrong to attribute to a legislature such an intention. Rather, the intention to be implied when the statute is silent is that observance of the principles of natural justice conditions the exercise of the power although in some circumstances the content of those principles may be diminished (even to nothingness) to avoid frustrating the purpose for which the power was conferred. Accepting that the content of the principles of natural justice can be reduced to nothingness by the circumstances in which a power is exercised, a presumption that observance of those principles conditions the exercise of the power is not necessarily excluded at least where, in the generality of cases in which the power is to be exercised, those principles would have a substantial content.'


case_text: In Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72 ; (2003) 218 CLR 28 Gleeson CJ, Gummow and Hayne JJ (Heydon J agreeing at 87 [190]) said (at 35[2]) (footnote omitted): 'The power conferred by s 51(xix) supports legislation determining those to whom is attributed the status of alien; the Parliament may make laws which impose upon those having this status burdens, obligations and disqualifications which the Parliament could not impose upon other persons. On the other hand, by a law with respect to naturalisation, the Parliament may remove that status, absolutely or upon conditions. In this way, citizenship may be seen as the obverse of the status of alienage.'


case_text: I also agree with the respondent's second submission that in any event the degree of impairment of the applicant's rights with respect to the property is insufficient to attract the operation of s 51(xxxi). In Waterhouse v Minister for the Arts and Territories (1992) 43 FCR 175 the power of a Minister to grant or withhold a permit for an object to be exported to a purchaser under the Protection of Movable Cultural Heritage Act 1986 (Cth) was held to be an insufficient impairment of the rights of the owner of a valuable Australian painting to attract the operation of s 51(xxxi) (see the discussion of Black CJ and Gummow J at 180-185; Smith v ANL Ltd [2000] HCA 58 ; (2000) 204 CLR 493 per Gaudron and Gummow JJ at 505 [23]). In my opinion, similar reasoning can be applied here. The applicant is required to sell the property, but the class to whom she cannot sell the property is very limited (s 21A(7)).


case_text: Alphaone was also referred to in the recent decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63. That case raised a question as to whether the Refugee Review Tribunal had advised, or sufficiently advised, an applicant for review of matters it relied on in dismissing the application. The case turned on the obligation of the Tribunal under s 425 of the Migration Act 1958 (Cth) and the facts of the case. The Court did make some observations about what was said to be a dichotomy between an obligation to advise of adverse conclusions which have been arrived at which would not obviously be open on the known material, and the lack of an obligation to advise of a decision-maker's mental processes or provisional views. After referring to the passage in Alphaone set out in [100] above, the Court said (at [30], [31] and [32]) (footnotes omitted) : 'Particular attention was directed in argument in this Court, as it had been in the courts below, to the Tribunal's conclusion that the three identified elements of the appellant's story were not "plausible". Was that a conclusion "which would not obviously be open on the known material"? Or was it no more than a part of the "mental processes" by which the Tribunal arrived at its decision? Stated in this way, the argument seeks to elucidate the content of the requirements of procedural fairness by setting up a dichotomy. There are two reasons to exercise considerable care in approaching the problem in that way. First, it is far from clear that the two categories that are identified (conclusions not obviously open on the known material, and mental processes of decision-making) encompass all possible kinds of case that may fall for consideration. Secondly, there is a very real risk that focusing upon these two categories will distract attention from the fundamental principles that are engaged. In Alphaone the Full Court rightly said: "It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material." (emphasis added) The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited "to give evidence and present arguments relating to "the issues arising in relation to the decision under review". (emphasis added) The reference to "the issues arising in relation to the decision under review" is important.' Towards the end of the reasons for judgment, the Court made the following observation (at [49]): 'Finally, even if the issues that arise in relation to the decision under review are properly identified to the applicant, there may yet be cases which would yield to analysis in the terms identified by the Full Court of the Federal Court in Alphaone . It would neither be necessary nor appropriate to now foreclose that possibility.'


case_title: Taylor, Re; Ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194

case_text: A natural person may be a citizen of Australia or a non-citizen. In the case of a natural person who is a citizen, there is no definition in the Act of 'resident' or 'ordinarily'. There are a large number of cases which have examined the meaning of those words in various statutory contexts. It seems that the words are not terms of art and the question is one of fact and degree and that a person may have two places of residence: Re Vassis; Ex parte Leung (1986) 9 FCR 518 at 524-525 per Burchett J; Re Taylor; Ex parte Natwest Australia Bank Limited (1992) 37 FCR 194 at 197 per Lockhart J. The particular problem of a person possibly being ordinarily resident in two places does not arise here because the criterion in s 4(6) is 'not ordinarily in Australia'.


case_text: The drafting technique whereby s 21A is given an extended operation by s 4(6) is similar to that used in the Trade Practices Act 1974 (Cth) and considered by the High Court in The Queen v Australian Industrial Court; Ex parte CLM Holdings Pty Ltd [1977] HCA 6 ; (1977) 136 CLR 235. 14 The applicant is not within the definition of 'foreign person' within s 21A(1) of the Act . If s 21A applies to her it is by reason of the fact that she is a natural person not ordinarily resident in Australia within s 4(6)(a).


case_title: Theophanous v Commonwealth of Australia [2006] HCA 18 ; (2006) 80 ALJR 886

case_text: In Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 271, Deane and Gaudron JJ said (at 285): 'It is not necessary to repeat what we say in Mutual Pools with respect to the effect of the words "for any purpose in respect of which the Parliament has power to make laws". However, it is necessary to elaborate a little on the phrase "acquisition of property on just terms". Because s 51(xxxi) operates as a constitutional guarantee, the words "acquisition" and "property" are to be construed liberally . However, the power conferred by s 51(xxxi) is one with respect to "acquisition of property on just terms". That phrase must be read in its entirety and, when so read, it indicates that s 51(xxxi) applies only to acquisitions of a kind that permit of just terms. It is not concerned with laws in connexion with which "just terms" is an inconsistent or incongruous notion. Thus, it is not concerned with a law imposing a fine or penalty, including by way of forfeiture, or a law effecting or authorizing seizure of the property of enemy aliens or the condemnation of prize. Laws of that kind do not involve acquisitions that permit of just terms and, thus, they are not laws with respect to "acquisition of property", as that expression is used in s 51(xxxi). It follows that a law which effects or authorizes forfeiture of property in consequence of its use in the commission of an offence against the laws of the Commonwealth stands outside s 51(xxxi).' This passage from the reasons for judgment of Deane and Gaudron JJ was cited with approval by five Justices of the High Court in Theophanous v Commonwealth of Australia [2006] HCA 18 at [55] - [56] . 59 The Act controls the acquisition of property in Australia by a foreign corporation or a natural person not ordinarily resident in Australia. That control involves power to prohibit a proposed acquisition, to approve a proposed acquisition and, in relation to an acquisition which has taken place without approval, to require a person to dispose of the property acquired. It is difficult to see how the subject matter of the Act could be properly controlled or regulated without the power to make a divestiture order. 60 Having regard to the principles which I have identified, in my opinion ss 4(6) and 21A (4) stand outside the scope of s 51(xxxi).


case_title: Vassis, Re; Ex parte Leung (1986) 9 FCR 518


case_text: The scope of the external affairs power has been considered by the High Court in a number of recent decisions. Both parties referred extensively to the decisions in Polyukhovich v The Commonwealth [1991] HCA 32 ; (1991) 172 CLR 501 (' Polyukhovich ') and Victoria v The Commonwealth (Industrial Relations Case) [1995] HCA 45 ; (1995) 187 CLR 416 (' Victoria v The Commonwealth '). 31 In Victoria v The Commonwealth, Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ said (at 485) (footnotes omitted): 'Of course the scope of the legislative power is not confined to the implementation of treaties. The modern doctrine as to the scope of the power conferred by s 51(xxix) was adopted in Polyukhovich v The Commonwealth . Dawson J expressed the doctrine in these terms: "[T]he power extends to places, persons, matters or things physically external to Australia. The word 'affairs' is imprecise, but is wide enough to cover places, persons, matters or things. The word 'external' is precise and is unqualified. If a place, person, matter or thing lies outside the geographical limits of the country, then it is external to it and falls within the meaning of the phrase 'external affairs'." Similar statements of the doctrine are to be found in the reasons for judgment of other Justices: Mason CJ; Deane J; Gaudron J; and McHugh J. They must now be taken as representing the view of the Court.'


case_title: Waterhouse v Minister for the Arts and Territories (1993) 43 FCR 175


case_text: In XYZ v The Commonwealth [2006] HCA 25 ; (2006) 80 ALJR 1036 the High Court considered the validity of provisions of the Crimes Act 1914 (Cth) which made it an offence for a person defined as an Australian citizen or a resident of Australia while outside Australia to engage in sexual intercourse with a person under 16 years of age, or to commit an act of indecency on a person under 16 years of age. By a majority of five to two, the Court held that the legislation was valid under the external affairs power. Of the majority, Gleeson CJ and Kirby J each wrote separate judgments and Gummow, Hayne and Crennan JJ prepared joint reasons. Callinan and Heydon JJ dissented.


case_text: Mr Spencer submitted that he had sought on a number of occasions to suggest a reasonable basis upon which this proceeding could be settled, and that the ACCC had acted unreasonably in refusing to engage with him. He referred to Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194 at 201 where Hill J summarised the principles that would ordinarily apply with regard to costs when a proceeding has not gone to trial. His Honour said: "These cases seem to me support the following propositions being made. (1) Where neither party desires to proceed with litigation the Court should be ready to facilitate the conclusion of the proceedings by making a cost order: Stratford [ J T Stratford & Son Ltd v Lindley (No 2) [1969] 1 WLR 1547] and the SEQEB case [ South East Queensland Electricity Board v Australian Telecommunications Commission (unreported, Federal Court, 10 February 1989, Pincus J)] . (2) It will rarely, if ever, be appropriate, where there has been no trial on the merits or, for a Court determining how the costs of the proceeding should be borne to endeavour to determine the outcome of a hypothetical trial: Stratford . This will particularly be the case where a trial on the merits would involve complex factual matters where credit could be an issue. (3) In determining the question of costs it would be appropriate, however, for the Court to determine whether the applicant acted reasonably in commencing the proceedings and whether the respondent acted reasonably in defending them ( SEQEB ). (4) In a particular case it might be appropriate for the Court in its discretion to consider the conduct of a respondent prior to the commencement of the proceedings where such conduct may have precipitated the litigation: cf Sunday Times Newspaper Co Ltd v McIntosh (1933) 33 SR (NSW) 371. (5) Where the proceedings terminate after interlocutory relief has been granted, the Court may take into account the fact that interlocutory relief has been granted: cf Re Asiatic Electric Co Pty Ltd [1973] 1 NSWLR 603 at 606, a case which, however, depended upon the specific working of the statute under consideration."


case_text: Mr Spencer also drew attention to a similar statement of principle by McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622 at 626. 19 Mr Spencer argued that he had at all times acted reasonably in relation to the complaint brought against him by the ACCC. When the matter was first drawn to his attention, by a letter dated 14 April 2003 setting out the ACCC's concerns, he had caused his solicitors to reply to that letter, on 20 May 2003, responding in detail to the allegations. On 11 June 2003, the ACCC had written to his solicitors, thanking them for his response. That letter went on to say: "This office is currently assessing the information provided by you on behalf of your client. However, it is apparent a number of issues remain, therefore as soon as this office has completed its assessment of your response I will contact you to arrange a mutually suitable time to meet with you and your client to discuss this matter further." 20 It appears from the correspondence that was tendered before me that, despite the suggestion that there would be a meeting between the ACCC and Mr Spencer to discuss the matter further, no such meeting took place. Instead, on 11 August 2004, Deacons, acting on behalf of the ACCC, wrote to Mr Spencer's solicitors informing them that the matter had now been "fully investigated" and that the ACCC had determined to pursue it further. The letter went on to say that a proceeding had been instituted in the Federal Court that day, and enclosed a copy of the application and statement of claim.


case_text: The ACCC submitted that the principles governing the award of costs in cases where a matter does not proceed to a final hearing were correctly expounded by Burchett J in One.Tel Limited v Commissioner of Taxation [2000] FCA 270 ; (2000) 101 FCR 548 at 553: "In my opinion, it is important to draw a distinction between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of case, there will commonly be lacking any basis for an exercise of the Court's discretion otherwise than by an award of costs to the successful party. It is the latter type of case which more often creates problems, since there may be difficulty in discerning a clear reason why one party, rather than the other, should bear the costs. " 15 The ACCC contended that the present case fell within the first category described by Burchett J. Although in Smith v Airservices Australia Stone J made no mention of One.Tel Limited v Commissioner of Taxation , her Honour's discussion at [48]-[59], under the heading "Futility", deals helpfully with the second category of cases that his Honour identified. 32 In my view, this case falls squarely within the first category of case articulated by Burchett J in One.Tel Limited v Commissioner of Taxation . The appropriate order is that the second respondent pay the applicant's costs, any such costs to be taxed in default of agreement. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. Associate: Dated: 11 April 2006 Counsel for the Applicant: Mr J.P. Moore Solicitors for the Applicant: Deacons Counsel for the Second Respondent Mr D.L. Bailey Solicitors for the Second Respondent: David Stagg Tonkin & Co Date of Written Submissions: 9 & 17 March 2006 and 4 April 2006 Date of Judgment: 11 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/396.html


case_text: In broad terms, the Federal Court Rules provide that where a party discontinues proceedings without the leave of the Court, the discontinuing party is liable to pay costs, unless the Court orders otherwise: see O 22 r 2 and 3, and O 62 r 26(1). No such rule is provided for where a proceeding is discontinued with the leave of the Court, although the starting point in principle is that the discontinuing party should meet the costs of the respondent: see Smith v Airservices Australia [2005] FCA 997 ; (2005) 146 FCR 37 per Stone J at [44]. 10 However, the starting point in resolving the issue is this case, namely who should bear the costs when a proceeding has been resolved by the making of consent orders, must be to consider the extent to which the ACCC succeeded in obtaining the relief that was initially sought. In that regard, the position is clear. Mr Spencer consented to the making of declarations by the Court that a series of agreements entered into by Contact Plus constituted "franchise agreements" within the meaning of clause 4 of the Code. He also consented to the making of declarations that Contact Plus had contravened the Code and therefore s 51AD of the Act , by failing to provide disclosure documents, and by failing to receive written and signed statements by the franchisees, as required. In addition, he consented to the making of directions regarding the termination of these franchise agreements, and other breaches of the Code. 11 The Court also declared, by consent, that Contact Plus had engaged in conduct that contravened ss 52 and 53 (g) of the Act regarding the representations made concerning the licence fee of $60,000 and the right of a franchisee to an area that was exclusive to that franchisee. Mr Spencer was declared to have aided, abetted, counselled or procured these contraventions of the Act , and to have been directly or indirectly knowingly concerned in, or party to, those contraventions. 12 A statement of agreed facts was appended to the consent orders that were sought. That statement contains findings of fact for the purposes of s 83 of the Act . 13 Finally, Mr Spencer agreed to injunctions in the terms sought, which would run for a period of three years from the date of the order made. He accepted orders that required him to provide each person with whom Contact Plus had entered into an agreement similar in terms to those of the franchise agreements that were the subject of this proceeding with a disclosure document that complied with the requirements of the Code, and a copy of the orders of the Court. 15 The ACCC contended that the present case fell within the first category described by Burchett J. Although in Smith v Airservices Australia Stone J made no mention of One.Tel Limited v Commissioner of Taxation , her Honour's discussion at [48]-[59], under the heading "Futility", deals helpfully with the second category of cases that his Honour identified.


case_text: GMCA submitted that both patents were but an "attempt to re-design a known tool so as to achieve impermissibly, a patent monopoly over what is really a marketing idea". The alleged invention, so the argument went, citing Maugham J in Adelmann & Ham Boiler Corporation v Llanrwst Foundry Co (1928) 45 RPC 413 at 420, was simply the application of a well known and well understood piece of mechanism to achieve an obvious advantage. The mere "positioning" of the handle for a known tool in order to achieve a known result was not a manner of manufacture.


case_text: Claims must be determined in a practical and common sense manner: Nesbit v Impro at 95; Minnesota Mining at 274. In Cleveland Graphite Bronze Co v Glacier Metal Co Ltd (1950) 67 RPC 149 at 154 it was said that the claims must be as precise "as the subject admits of". The fact that Dr Stark had no problems on first reading is of significance. It is not the role of an independent expert to seek out difficulties or to read a patent with, to borrow an expression from administrative law, "an eye keenly attuned to the perception of error": Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322 ; (1993) 43 FCR 280 at 287 quoted in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272. This episode reflects on Dr Stark's credibility as an independent expert. Generally I found Dr Stark lacked objectivity and detachment. He appeared keen to raise every conceivable argument in favour of the party which retained him.


case_text: However, statutory rights to damages or an account of profits conferred on owners or exclusive licensees of intellectual property only have effect for the period that a plaintiff in fact has the relevant status. Thus in Colbeam Palmer Ltd v Stock Affiliates Pty Ltd [1968] HCA 50 ; (1968) 122 CLR 25 Windeyer J held (at 36) that an account of profits should be taken to terminate as at the date the plaintiff assigned the trade mark in question and (at 41) that the assignee, having been joined as a plaintiff, should be entitled to an account of profits from the date of assignment. Similarly in Stack v Brisbane City Council (1996) 35 IPR 296 at 302 Drummond J held that where an equitable title had been converted into legal title by assignment, the assignor would have the right to an account of profits made by the infringers in the period up to the assignment and that the assignee alone would have the right to any profits made by the infringers after that date. Likewise, if an election were made for damages the assignee is the proper claimant for that relief, but only as from the date its equitable ownership became converted by registration into full legal and beneficial ownership of the patent.


case_title: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322 ; (1993) 43 FCR 280


case_text: The claims must be fairly based on the matter described in the specification: Patents Act s 40(3). The body of the specification must provide a "real and reasonably clear disclosure" of the invention claimed: F Hoffman-La Roche & Co v Commissioner of Patents [1971] HCA 3 ; (1971) 123 CLR 529 at 539; Lockwood 1 at [69]. 33 GMCA submits that the claims are not fairly based. It says that the claims, in particular claim 1, are not limited to power saws but extend to all manner of power tools. They do not include "essential features" in the specification, viz the reciprocation frequency and stroke length ranges. They also refer to a "plurality" of positions whereas in fact there are only two. 34 Whatever may be the position in relation to claim 1, the claims from claim 3 onwards, and in particular the critical claim 6, are clearly confined to power saws.


case_title: Foggin v Lacey (2003) 57 IPR 225

case_text: The principles are stated by Gummow J in Wanem Pty Ltd v John Tekiela [1990] FCA 372 ; (1990) 19 IPR 435 at 440, cited with approval by the Full Court in Foggin v Lacey (2003) 57 IPR 225 at [13]. Gummow J said: ...(i) first impressions are important in determining whether there is an infringement of a design, (ii) an obvious imitation is one which is not the same as the registered design but is a copy apparent to the eye notwithstanding slight differences, (iii) the question must be looked at as one of substance and by examining the essential features of the design, (iv) a closer correspondence between the registered design and the alleged infringing design is necessary to satisfy the test of obvious imitation than that of fraudulent imitation, (v) precise mathematical comparisons or matters of measurements or ratios, which form no part of the mental picture which the eye conveys to the brain of shape or configuration suggested by the design, are not to be applied as the test of infringement; appearance to the eye is the critical issue, and (vi) questions of infringement must not be determined by a narrow or overly technical approach in comparison between the design and the alleged infringement, lest the registration be sapped of its worth to the registered owner. 116 As the Full Court in Foggin noted, it is for the Court to rule on the meaning of the design and question of infringement as determined by reference to the eye of the consumer. 117 My first, and continuing, impression is that product B is significantly different in appearance from the Design. In particular the shank is quite different. What is in issue here is an everyday product. To the lay person this looks like a saw, obviously not a hand saw but one with some attachment in the shape of the shank. I regard this as more important than differences in angles and proportions. Put simply, the Design shows a saw blade with a shank; product B is a saw with a different sort of shank. 118 As might be expected experts on either side gave differing views. Professor Redmond thought that the dominant aspect of the Design was the blade and that product B was "closely similar, such that it has the same appeal to the eye as the design in the (Design)". He saw the shank as an "attachment device" but the saw blade was the "core or crucial visual element". The shank was "peripheral" or "of less significance". Nevertheless I think the ordinary consumer would see a panel saw blade as a piece of metal with teeth along the bottom and a sloping top. The shank is at one end, and thus is in a literal sense peripheral, but it is, and would be seen as, an integral and distinctive part of the article.


case_text: In the case of an anticipation in documentary form, the document must contain "clear and unmistakable directions to do what the patentee claims to have invented": General Tire & Rubber Co v Firestone Tyre and Rubber Co Ltd [1972] RPC 457 at 486. 44 Although GMCA originally pleaded some 22 anticipations, by trial these had been reduced to 13. In final submissions only seven were relied on. The general comment can be made that although some of the devices could perhaps as a matter of physical possibility be used as a jigsaw there was no clear direction that this was their intended use. 45 This device was in evidence and is also described in the Bosch 1993/94 Catalogue. It is described as a "multisaw" and is pictured as being used in panel saw mode. There are photographs of various blade accessories such as a rasp, file and various brushes and also the statement: "In addition, the Bosch jigsaw accessory range is available for the multisaw".


case_text: Much of this argument overlapped with GMCA's case on description, utility, novelty and obviousness. To the extent that it did not, it must be rejected. The alleged invention did not involve an abstract idea, like that considered in Grant v Commissioner of Patents (2006) 69 IPR 221. It concerned machines and their operation and thus "something of a corporeal and substantial nature": R v Wheeler (1819) 2 B & Ald 345 at 350, cited in Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (No 2) [2007] HCA 21 ; (2007) 72 IPR 447 at [66] ( Lockwood 2 ).


case_text: In any case, the specification does not put forward the "major vector element" as something "contribut(ing) to the achievement of the invention". The invention is not for a method of holding a power saw; it is for a power saw capable of fulfilling different functions. As already explained, the (perhaps overly scientific) term "vector" is but a word used in describing these two functions. The specification contains quite detailed explanations and diagrams of the preferred embodiment. There is no obligation on a patentee to describe more than a single preferred form of the invention. The ground of insufficiency is not made out merely because it is said there are other ways of carrying out the invention as to which the specification is not sufficiently precise: No-Fume Ltd v Frank Pitchford & Co Ltd (1935) 52 RPC 231 at 248. The test is whether the disclosure in the specification will "enable the addressee to produce something within each claim without new inventions or additions or prolonged study of matters presenting initial difficulty": Kimberly-Clark Australia Pty Limited v Arico Trading International Pty Limited [2001] HCA 8 ; (2001) 207 CLR 1 at [25] . This requirement has been satisfied.


case_title: Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (No 2) [2007] HCA 21 ; (2007) 72 IPR 447


case_text: GMCA say that the specification "does not explain how [counsel's emphasis] the major vector element contributes to the achievement of the invention (which is said to be a useful tool)". Reliance was placed on a passage in Lockwood Security Products Pty Ltd v Doric Products Pty Ltd [2004] HCA 58 ; (2004) 217 CLR 274 at [99] ( Lockwood 1 ). However, that passage is not in point. It is in the context of a fair basing argument and says that a claim cast in the form of a consistory clause is not fairly based if other parts of the specification show that the invention is narrower than that consistory clause. The inquiry, their Honours stress, is into what the body of the specification read as a whole discloses as the invention.


case_text: Claims must be construed in a practical, common sense manner, and are valid so long as they provide a workable standard suitable to the intended use: Minnesota Mining & Manufacturing Co v Beiersdorf (Aust) Ltd [1980] HCA 9 ; (1980) 144 CLR 253 at 273; Nesbit Evans Group Australia Pty Ltd v Impro Ltd (1997) 39 IPR 56 at 95. 78 Claims must be determined in a practical and common sense manner: Nesbit v Impro at 95; Minnesota Mining at 274. In Cleveland Graphite Bronze Co v Glacier Metal Co Ltd (1950) 67 RPC 149 at 154 it was said that the claims must be as precise "as the subject admits of". The fact that Dr Stark had no problems on first reading is of significance. It is not the role of an independent expert to seek out difficulties or to read a patent with, to borrow an expression from administrative law, "an eye keenly attuned to the perception of error": Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322 ; (1993) 43 FCR 280 at 287 quoted in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272. This episode reflects on Dr Stark's credibility as an independent expert. Generally I found Dr Stark lacked objectivity and detachment. He appeared keen to raise every conceivable argument in favour of the party which retained him.


case_title: Nesbit Evans Group Australia Pty Ltd v Impro Ltd (1997) 39 IPR 56


case_text: It is not in dispute that GMCA has offered for sale and sold in Australia two allegedly infringing products, referred to in this case as T1 and T2. Black & Decker has to show that the GMCA products take each and every essential integer of the claims relied on (claims 1 and 3 to 8 of the Standard Patent): Nicaro Holdings Pty ltd v Martin Engineering Co (1990) 16 IPR 545 at 559-560. 73 A photograph of T1: 74 The only integers in contest are those designated 1.8 and 1.9 in claim 1 of the Patent. Integer 1.8 it will be recalled is as follows (emphasis added): and wherein the handle is positioned such that a force applied thereto by the user in a first of the said plurality of positions comprises a major vector transmitted along a line of action extending substantially parallel to the line of linear reciprocation. Integer 1.9 is in the same terms save only that the word "parallel" is replaced by the word "transverse". These integers obviously relate to the operation of the device in its panel saw (integer 1.8) and jigsaw (integer 1.9) modes.


case_text: In any case, the specification does not put forward the "major vector element" as something "contribut(ing) to the achievement of the invention". The invention is not for a method of holding a power saw; it is for a power saw capable of fulfilling different functions. As already explained, the (perhaps overly scientific) term "vector" is but a word used in describing these two functions. The specification contains quite detailed explanations and diagrams of the preferred embodiment. There is no obligation on a patentee to describe more than a single preferred form of the invention. The ground of insufficiency is not made out merely because it is said there are other ways of carrying out the invention as to which the specification is not sufficiently precise: No-Fume Ltd v Frank Pitchford & Co Ltd (1935) 52 RPC 231 at 248. The test is whether the disclosure in the specification will "enable the addressee to produce something within each claim without new inventions or additions or prolonged study of matters presenting initial difficulty": Kimberly-Clark Australia Pty Limited v Arico Trading International Pty Limited [2001] HCA 8 ; (2001) 207 CLR 1 at [25] . This requirement has been satisfied. 35 The reciprocation frequency and stroke length ranges are matters of guidance for the skilled addressee. They are not essential to the working of the claimed invention. As Maugham LJ said in No-Fume at 248, the specification does not have to define ... all the proportions, or all the dimensions, or all the temperatures, or all the materials which would give a similar or like result. 36 The preferred embodiment makes it clear that only two uses are disclosed. 37 The invention, so far is claimed in any claim, must be useful: Patents Act s 18(1)(c). This means that the invention as claimed must produce the desired result.