case_text: Section 251B of the Act reflects the communal character of native title. The authorisation process must be able to be traced to a decision of the native title claim group who adopt that process ( Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 per French J at [44]). A meeting which purports to authorise the replacement of applicants should be attended by persons ' fairly representative of the native title claim [group] concerned ' ( Bolton at [46]). There is no suggestion that this was not the case. The evidence of Jodi Neale, the anthropologist who attended the meeting and on whose research the replacement claim group description is based, is that those in attendance were reasonably representative of the replacement claim group. 24 In summary, the resolutions were made by a group of Njamal people. Those persons were sufficiently representative of the replacement claim group and made the resolutions in accordance with an agreed process. It follows that the decision-making processes required by s 66B have been proved ( Bolton at [42]). 25 By s 64(5) of the Act, if a claimant application is amended to replace the applicant with a new applicant, the amended application must be accompanied by an affidavit sworn by the new applicant attesting to the matters specified in subss 64(5)(a) and (b). Each of the replacement applicants has sworn and filed an affidavit and I am satisfied that s 64(5) has been complied with. 26 The only person opposing this application to replace the applicant is Mr McPhee. He complains that the meeting was ' flawed ' because the members in attendance were not properly informed of matters relevant to their decision. Mr McPhee submits that the Court should not, as a matter of discretion, make orders to replace the applicant. Mr McPhee did not attend the meeting. 39 The withdrawal and conferring of authority for the purposes of a s 66B application must be shown to flow from the claim group ( Bolton at [44]). Once this is established, the actions of the claim group and the means by which it makes decisions is a matter for it. It is not for the Court to interfere with decisions reached in accordance with the Act. It is not for the Court to consider the wisdom of those decisions or whether, in this case, there is merit in Mr McPhee's concerns. It is for him to communicate those concerns, if he wishes to do so, to the other claimants and for the applicant, on receipt of instructions from the claim group, to act as authorised. Upon the making of the orders sought by the first motion, the terms of s 66B of the Act will be satisfied. The Court has a discretion as to whether it should exercise its power under s 66B (subs 66B(2) of the Act; Daniel at [18]). That discretion should be exercised to make the orders sought by the replacement applicant.


case_outcome: cited

case_text: Section 66B of the Act provides for a procedure for the replacement of the applicant ( Chapman on behalf of the Wakka Wakka People # 2 v State of Queensland [2007] FCA 597 per Kiefel J at [2]). Under subs 66B(1)(a)(i), members of a claim group who seek to replace an existing applicant must relevantly establish ( Daniel v The State of Western Australia (2002) 194 ALR 278 per French J at [17]) that: (1) There is a claimant application. (2) Each applicant for an order under s 66B is a member of the claim group. (3) The persons to be replaced are no longer authorised by the claim group to make the application and to deal with matters arising in relation to it. (4) The persons making the application under s 66B are authorised by the claim group to make the application and to deal with matters arising in relation to it.


case_text: Section 66B of the Act provides for a procedure for the replacement of the applicant ( Chapman on behalf of the Wakka Wakka People # 2 v State of Queensland [2007] FCA 597 per Kiefel J at [2]). Under subs 66B(1)(a)(i), members of a claim group who seek to replace an existing applicant must relevantly establish ( Daniel v The State of Western Australia (2002) 194 ALR 278 per French J at [17]) that: (1) There is a claimant application. (2) Each applicant for an order under s 66B is a member of the claim group. (3) The persons to be replaced are no longer authorised by the claim group to make the application and to deal with matters arising in relation to it. (4) The persons making the application under s 66B are authorised by the claim group to make the application and to deal with matters arising in relation to it. 16 As to the remaining criteria, s 251B of the Act governs when a person (or persons) is authorised by all of the persons in the claim group and applies in determining when a person is authorised for the purposes of s 66B ( Daniel at [14]). Authorisation may be in accordance with a process of decision-making according to traditional laws and customs (s 251B(a) of the Act). Where there is no such process, it may be in accordance with a process agreed and adopted by the claim group (s 251B(b) of the Act). 17 Whether there is authorisation for the purposes of s 66B in any given case is a question of fact. In the present case, the evidence is that there is no precise process or cultural precedent under the traditional laws and customs of the Njamal people that must be followed for decisions of the kind contemplated by s 66B of the Act or otherwise for authorising claim group members to represent the group as applicant. Decisions as to the authorisation or removal of applicants are not part of Njamal traditional law and culture. Instead, the Njamal people have agreed to and adopted a process of making decisions (s 251B(b) of the Act). Pursuant to that process, decisions are made by resolution or consensus at community meetings organised by the Pilbara Native Title Services ('PNTS'). All known Njamal people are included on a mailing list and invited by letter to attend such meetings. The mailing list has been compiled with the input of anthropologists who have been involved in researching the claims and genealogies. Notices are also sent to communities where Njamal people reside. Meetings have been called and held where families are represented and individuals or families with particular interest or authority in relation to the decisions being contemplated are present. Decisions at those meetings have been made by consensus and by way of formal resolutions. 18 Although it is not possible for every member of the claim group to attend each community meeting, the group regards itself as bound by the decisions of those who are present. Major decisions have been made over a number of years in this manner. At such meetings of the larger Njamal community decisions have been made to form a working group to deal with day to day claim group business and to participate in surveys in Njamal country. The Njamal people chosen at these meetings are not all members of the current claim group. 19 Community meetings have become the accepted way of making major decisions on matters such as the claim areas, authorisation of the applicant and major future act decisions. Where there is not a reasonably representative group of people at a community meeting or insufficient attendees, the persons present may decide that it is inappropriate for a decision to be made at that meeting. The resolutions at the meeting were in accordance with the decision-making process previously used and, I am informed, also used to authorise the current applicant. 20 The sole agenda items at the meeting were ' claim group description ' and ' replacement of the applicants '. Following discussion of each item, the members present resolved: • to amend the claim group description (the first resolution); • no longer to authorise the current applicant ' as a group ' to make the application in these proceedings or to deal with matters in relation to it; • to remove 11 of the 17 persons who currently comprise the applicant and to include three new persons as applicant (the second resolution); • to authorise the replacement applicant to be the applicant in these proceedings and to deal with matters related to the application in accordance with decisions of the Njamal native title claim group through community meetings; • to authorise the replacement applicant to bring an application in this Court to replace the current applicant and to authorise them to instruct PNTS to act for them, or to organise or appoint legal representatives to act for them, in relation to that application. 39 The withdrawal and conferring of authority for the purposes of a s 66B application must be shown to flow from the claim group ( Bolton at [44]). Once this is established, the actions of the claim group and the means by which it makes decisions is a matter for it. It is not for the Court to interfere with decisions reached in accordance with the Act. It is not for the Court to consider the wisdom of those decisions or whether, in this case, there is merit in Mr McPhee's concerns. It is for him to communicate those concerns, if he wishes to do so, to the other claimants and for the applicant, on receipt of instructions from the claim group, to act as authorised. Upon the making of the orders sought by the first motion, the terms of s 66B of the Act will be satisfied. The Court has a discretion as to whether it should exercise its power under s 66B (subs 66B(2) of the Act; Daniel at [18]). That discretion should be exercised to make the orders sought by the replacement applicant.


case_text: Section 62A of the Act relevantly provides that the applicant in a claimant application may deal with all matters arising under the Act in relation to the application. That includes the amendment of the application from time to time ( Drury v Western Australia [2000] FCA 132 ; (2000) 97 FCR 169 at [12] per French J). 41 The procedural chronology is as follows: • The description of the replacement claim group is agreed (25 October 2006). • The replacement claim group resolves that the current applicant ' as a group ' is no longer authorised to deal with the application (25 October 2006). • The replacement applicant is authorised by the replacement claim group (25 October 2006). • The first motion is filed (27 February 2007). It lists the replacement applicant as the party moving the Court for orders. • The first motion is amended to specify the current applicant as the moving party (28 February 2007). • The Court is moved for orders by the current applicant pursuant to the first motion as amended (21 March 2007 and 28 May 2007). 42 A question arises as to whether the current applicant can move the Court for orders to amend the application in these circumstances. On one view, until the making of orders to replace the current applicant, it remains the applicant in the proceedings and may deal with the application and bring the first motion. On the other hand, however, the unchallenged evidence is that the replacement claim group withdrew the current applicant's authority to deal with the application at the meeting. That would, on its face, include a revocation of the authority to file and prosecute a notice of motion to amend the application.


case_text: The adoption of a process of decision-making does not require all members of the claim group to be involved in making the decision. Nor does it require a unanimous vote ( Lawson v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 per Stone J at [25]). The members of the claim group should be given every reasonable opportunity to participate in the decision-making process. It cannot, logically, be the case that all, in the sense of each and every member of the claim group must be involved in and agree to the proposed decision. That would, as has been pointed out in Quall v Risk [2001] FCA 378 at [33] per O'Loughlin J include persons who are unable to participate by reason of age, mental capacity or unknown whereabouts and would permit an individual to prevent the progress of a claim. To cancel a meeting merely because one member is unable to attend would also constitute a waste of limited resources. The costs of holding a Njamal community meeting can exceed $13,000.


case_text: The proposed technical amendments, broadly and in summary: • correct typographical errors; • exclude category B past and intermediate period acts wholly inconsistent with the continued existence, enjoyment or exercise of any native title rights or interests; • exclude a claim of native title rights and interests conferring exclusive rights over areas in relation to which a previous non-exclusive possession act has been done; • distinguish between rights and interests claimed over areas where a claim of exclusive possession can be recognised and areas where such a claim cannot be recognised, in accordance with s 190B(9)(c) of the Act; • delete certain rights and interests claimed, to reflect decisions of the High Court ( Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1) and the Full Federal Court ( Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135) ; and • better address the requirements of the Act (ss 62(2)(e) and 190B(5)) in describing the native title rights and interests claimed. 11 The technical amendments do not affect the substantive rights and interests claimed and they are supported by the first respondent, the State of Western Australia. There is no evidence that the technical amendments were approved by the replacement claim group. Subject to the procedural matters that I will later outline, however, it is appropriate that the application be so amended. 12 In the second motion, the replacement applicant applies for orders that it replace the current applicant. The replacement involves the removal of 11 persons and the addition of three new persons. Of the 11 persons proposed to be removed, three are deceased and seven consent to being removed. The other is Mr McPhee. There is no opposition to the removal of the deceased applicant members or to the addition of the proposed new members. Six members of the current applicant will remain members of the replacement applicant.


case_title: Quall v Risk [2001] FCA 378


case_text: The applicant relies on O 13 r 2(1) of the Federal Court Rules ('the Rules') which permits the amendment of ' any document in the proceeding '. That applies to a native title determination application, subject to the constraints imposed by ss 64 and 66B of the [2003] FCA 1423 ; Act ( Anderson v Western Australia (2003) 134 FCR 1 at [36] per French J; Strickland v Western Australia [1999] FCA 221 ; (1999) 89 FCR 117 at [9] per Nicholson J). The constraints imposed by ss 64 and 66B are not relevant to the first motion.


case_outcome: applied

case_text: A Tribunal is required to take into account a relevant consideration only if what is put forward as the consideration is something it is bound to take into account in making its decision. In Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at [78] - [79] Allsop J, with whom Heerey J agreed, said: "Once it is accepted that the Tribunal dealt with the subject matter or element of the claim [to fear persecution based on the appellant's Tamil ethnicity], it becomes apparent that the real complaint of the appellant must be that the Tribunal failed to expressly deal with the evidence referred to in [his solicitor's] letter of 19 November 1999 and should have, somehow, preferred that material to the countervailing evidence (which it was accepted existed) which supported or tended towards the position adopted by the Tribunal .... Thus expressed, it becomes plain that it cannot be a question of the failure to take into account a consideration made compulsorily relevant by the Act or regulations .... Whatever may be the outer boundaries of relevant and irrelevant considerations ..., they do not, in my view, encompass a failure expressly to mention or grapple with part of the competing body of evidence before the Tribunal relevant to a finding made, in circumstances where the elements or integers of the claim for asylum are addressed." 14 The Tribunal's reference to the letters follows immediately after its statements of the findings set out at [11]. It is implicit in the paragraph relating to the letters, which also appears at [11], that the Tribunal was aware that the appellant wanted to rely on them to support his claim to have been suspected of involvement in the bombing and the detention that he says ensued as a result of that suspicion. As appears from the summary of the letters at [6], they passed between the appellant and his wife and the Sri Lankan authorities. They were written during the period of the appellant's alleged detention in 1987/1988. They related to his suspected involvement in the bombing and his subsequent detention. The passage in the Tribunal's reasons quoted at [11] thus fits in every respect with the summary. Although the Tribunal member could not read the letters, the appellant's affidavit filed in the Magistrates Court discloses that he informed the Tribunal that the letters were correspondence between him and his wife and the authorities written while he was in detention, and that they vouched for his case because they proved the time he was in detention. What the Tribunal intended to convey in the last two sentences of the passage at [11] is clear enough. The first is concerned to make the point that the information in the letters could not overcome the problems with the appellant's evidence (collected in the paragraphs immediately preceding that concerned with the letters), that led it to make the findings summarised at [11]. The second sentence is intended to convey that, because of the problems with the appellant's evidence, the information in the letters was not credible. 15 It is plain, therefore, that there is nothing of relevance in the letters of which the Tribunal was not apprised before it came to its conclusion. The only matter in the letters that the Tribunal had not recorded earlier in its reasons was that they bore dates corresponding with the time the appellant said he was in detention. Therein lay the possible importance of the letters to the appellant. They did more than recite facts he had propounded on several occasions already. He relied on the letters to point up that while he was in detention he was asserting that the authorities' suspicion of his involvement in the bombing was ill-founded. The Tribunal did not only indicate that the letters recorded his contentions about the authorities' suspicion of his involvement and his wrongful arrest and detention. It indicated as well that, if the letters were authentic, they showed that the appellant and his wife were asserting this shortly after his detention. The arrest and detention were in mid-February 1988 and the wife's letters were in March of that year. The appellant's own letter was in November 1988, which is not particularly contemporaneous. In any event, in the passage at [11] the Tribunal showed its awareness that the letters were more or less contemporaneous with the detention and were thus capable of being relied on as an answer to any claim of recent invention. However the letters remain items of evidence and not either the ground upon which the appellant sought protection or an essential integer of that ground. Although the Tribunal was thus not bound to take them into account, it did so. The Magistrate correctly rejected the claim that the Tribunal had ignored or failed to take into account a relevant consideration.


case_outcome: distinguished

case_text: X v Minister for Immigration and Multicultural Affairs [2002] FCA 56 ; (2002) 116 FCR 319, upon which the appellant relied, is clearly distinguishable. There the Tribunal said that because a diary relied on by the appellant had not been translated, it could not take its contents into account. In allowing the appeal and setting aside the Tribunal's decision, Gray J said at [30]-[31]: "It is one thing for the Tribunal to request that documents be translated into English. It is quite another to refuse to take into account a document that is asserted to be relevant to a specific issue on the ground that it has not been so translated. ... What course the Tribunal might take in a particular case will depend on the circumstances of the case. In the present case, it did not have the option of refusing to take into account the diary because it was not in English." Moore J said at [49] and [52]: "the Tribunal did receive the contentious diary and had regard to it but only in a limited and qualified way. That is because the Tribunal did not seek to ascertain what the diary said. ... In effectively rejecting the diary as material supportive of the appellant's case by declining to consider its contents without taking steps that might give meaning (to the Tribunal) to its contents, the Tribunal erred in the way discussed by Gray J. The consequence of the approach the Tribunal adopted was that it ignored relevant material." O'Loughlin J, who dissented in the result, characterised the conduct of the Tribunal as "the refusal ... to have regard to the contents of the diary (and this, effectively, means the refusal ... to arrange for an interpretation of the contents of the diary)": at [41]. 19 In the present case the Tribunal did not refuse to take the letters into account. The appellant accurately explained their content, as appears at [11], and the Tribunal took that into account in the manner there appearing. As Gray J observed, the course to be taken by the Tribunal in a case where a document is presented in untranslated form depends on the circumstances of the case. Here the Tribunal had the benefit of the appellant's explanation of the content of the letters and why they were important to his case, and the Tribunal took what he said into account. As it happens, the explanation was accurate, as appears from [14]. The Tribunal did not fall into the error identified by Moore J of failing to seek to ascertain what the letters said or not taking steps that might give meaning to their contents.


case_text: VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 does not assist the appellant. There the Tribunal did not accept a letter as a genuine document because it had been put before the Tribunal at a late stage. The Tribunal was not aware that the latter had been provided to the Immigration Department at an early stage. Thus it failed to take the letter into account. As I have said at [19], that is not this case. 21 The procedural fairness claim also fails. As indicated at [7] to [11] the appellant put his case about the bombing and its consequences. This was repeated in the letters, as the appellant explained to the Tribunal. The passage at [11] shows it was aware, as the appellant had told it, that the letters were contemporaneous with his arrest and detention. The Tribunal's failure to have the documents translated is not a denial of procedural fairness because their content discloses nothing he had not already told the Tribunal.


case_outcome: referred to

case_text: applicant has made a series of attempts to draft viable applications and statements of claim. In Auskay International Manufacturing & Trade Pty Ltd v Qantas Airways Limited [2008] FCA 1458 ; (2008) 251 ALR 166 , I struck out the applicant's second amended statement of claim but granted leave to replead. That leave was availed of and further attempts were made to produce an appropriate statement of claim. Unfortunately, I have, today, found it necessary to strike out the applicant's fourth amended statement of claim. Procedurally, there matters rest. On 9 October 2009, I heard argument on a motion, filed by the applicant, for this proceeding to be transferred to the New South Wales District Registry of the Court. The application was opposed by the second, third, fourth, fifth, eighth and ninth respondents. Section 48(1) of the Federal Court of Australia Act 1976 (Cth) ("the Act") provides that: "The Court or a Judge may, at any stage of a proceeding in the Court, direct that the proceeding or a part of the proceeding be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Court or Judge imposes".


case_text: is, to say the least, some doubt that an order for contribution could be made in respect of damages awarded under s 82 following a trial held in New South Wales. This is because of the different wording of s 5(1) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) ("the Law Reform Act") which provides for the recovery of contribution from joint tort-feasors. In Bialkower v Acohs Pty Ltd (1998) 83 FCR 1 at 11, the Full Court expressed the view that, because the cause of action under s 82 for a contravention of the TPA is entirely statutory in nature and is not an action in tort, s 5 of the Law Reform Act would not empower the Court to make a contribution order. The TPA itself does not make provision for contribution orders save in respect of damage caused by contraventions of s 52: as to which see Part VIA.


case_text: may, nonetheless, be scope for contribution claims to be brought in equity: see Burke v LFOT Pty Limited [2002] HCA 17 ; (2002) 209 CLR 282. In that case the High Court held that equitable contribution could be awarded where a respondent had contravened s 52 of the TPA. No award was made, however, because of limitations on the application of the doctrine: see at 294 (per Gaudron A-CJ and Hayne J) and at 300-303 (per McHugh J). It is sufficient for present purposes to observe that a respondent who wished to seek contribution from a fellow respondent following a trial in Sydney would confront far more legal difficulties than would the same respondent in a proceeding which was tried in Melbourne. There is, therefore, a sound basis for the concerns, expressed by some of the respondents, that they would be prejudiced were the present application to transfer the proceeding to succeed. The applicant has chosen to commence this proceeding in the Victoria District Registry. It remains in its early interlocutory stages. Having considered all of the matters raised by the parties, I can see no justification, in the interests of justice, for the proceeding to be transferred to the New South Wales District Registry.


case_text: is also a concern, felt by a number of respondents, that they will be prejudiced if the application is granted. If the matter is tried in Victoria and the applicant succeeds, a respondent will be able to seek contribution from other respondents: see Henderson v Amadio Pty Ltd (No 1) [1995] FCA 1300 ; (1995) 62 FCR 1 at 200-201 (per Heerey J). This is because s 79 of the Judiciary Act 1903 (Cth) picks up certain provisions which are found in ss 23A and 23B of the Wrongs Act 1958 (Vic). By s 23B(1) , "a person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage ...". Section 23A(1) provides that s 23B(1) applies to liability arising in "tort, breach of contract, breach of trust or otherwise " (emphasis added). Contribution can, therefore, be ordered where there is a successful claim for damages under s 82 of the TPA .


case_text: principles have been applied in many cases. Not surprisingly, the applicant places reliance on cases such as Wyllie Group Pty Ltd v ANZ Securities Ltd [2000] FCA 1382 , Mortimer v Opes Prime Stockbroking Ltd (ACN 086 294 028) (Administrator Appointed)(in liquidation) [2009] FCA 227 and Markethaven Pty Ltd (subject to Deed of Company Arrangement) v Commonwealth of Australia [2009] FCA 694 , in which the Court granted applications to transfer proceedings between Registries. These decisions are of limited assistance given the wide range of variables which confronted the judges who decided them. These factors included the residency of the parties and witnesses, the expense and prejudice likely to be experienced by the respective parties were a transfer to be granted, the similarity of causes of action in a proceeding on foot in the other Registry involving the same parties, and the possibility of interference with a fair trial.


case_title: Mortimer v Opes Prime Stockbroking Ltd (ACN 086 294 028) (Administrator Appointed)(in liquidation) [2009] FCA 227


case_text: provisions were considered by a Full Court in National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155. The Court said (at 161-162) that: "The Federal Court is a Court of wide jurisdiction throughout Australia whose judges may sit, whether as Full Courts or single judges, at any place in Australia. The Court has registries in each of the capital cities of the States and the Territories. The purpose of the provision in the rules of a "proper place" is to ensure the orderly and efficient conduct of the Court's business by requiring all documents filed in a proceeding to be in the custody and charge of the registry where the matter is then proceeding. The power conferred on the Court or a judge by s 48 is in terms wholly unfettered. It should be exercised flexibly having regard to the circumstances of the particular case. It would be regrettable and unwise if the Court were to circumscribe the general power conferred by s 48 with inflexible rules or impose inelastic constraints upon its exercise. As the power may be exercised subject to conditions, the Court or judge is in a position to mould orders under the section to take account of the many and varied circumstances that arise in particular cases. The power conferred by s 48 recognises the national character of this Court. The factors which the Court is entitled to take into account in considering whether one city is more appropriate than another for interlocutory hearings or for the trial itself are numerous. The Court must weigh those factors in each case. Residence of parties and of witnesses, expense to parties, the place where the cause of action arose and the convenience of the Court itself are some of the factors that may be relevant in particular circumstances. The balance of convenience will generally be a relevant consideration, but not necessarily determinative of each case. A party commences a proceeding by filing an application in a particular registry of the Court. If that party or another party wishes to have the proceeding conducted or continued in another place he may apply to the Court for an order under s 48 or O 10 r 1(2)(f) or O 30, r 6 as the case may be. There is no onus of proof in the strict sense to be discharged by the party seeking to conduct or continue the proceedings elsewhere. It should be noted that the Court may exercise its powers under O 30, r 6 either on the application of a party or on its own motion. The Court must, however, be satisfied, after considering all relevant matters, that there is sound reason to direct that the proceeding be conducted or continued elsewhere. Its starting point is that the proceeding has been commenced at a particular place. Why should it be changed? On the one hand, if the party who commenced the proceeding chose that place capriciously the Court would be justified in giving no weight to the choice of place. At the other end of the scale, a proceeding may have continued for some time at the place of commencement with many steps having been taken there, for example, filing of pleadings and affidavits, discovery and inspection. Due weight would be given by the Court to such matters before directing that the proceeding should continue at a different place. The balance of convenience is important, but its weight must vary from case to case. Ultimately the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court. It cannot and should not, in our opinion, be defined more closely or precisely" (emphasis added). As National Mutual makes clear, the Court has an unfettered discretion which is to be exercised in the interests of justice in the circumstances of the case in which the application is made. The applicant contends that the proceeding should be transferred to the New South Wales District Registry for a number of related reasons. Since the representative proceeding was instituted in Victoria, the Australian Competition and Consumer Commission ("the ACCC") has commenced proceedings against some of the respondents in respect of the same or substantially similar conduct on which it appears that the present applicant also relies. All of the proceedings commenced by the ACCC have been filed in the New South Wales District Registry. Proceedings against Qantas and British Airways were heard and determined in Sydney by Lindgren J in December 2008. There are presently before Jacobson J proceedings which have been brought by the ACCC against Singapore Airlines (NSD 1980/2008), Cathay Pacific (NSD 363/2009), Emirates Airlines (NSD 876/2009) and Garuda Airlines (NSD 955/2009). Jacobson J has expressed the view that "... it seems to me that it is convenient for [these cases] to be case managed together. They are going to raise very similar issues and it would be more effective if they run in tandem, at least for the time being". Jacobson J has also been involved in a number of interlocutory hearings in some of these proceedings.


case_title: Wyllie Group Pty Ltd v ANZ Securities Ltd [2000] FCA 1382


case_text: The above orders are an interlocutory judgment for the purposes of s 24(1A) of the Federal Court of Australia Act and the applicant needs leave to appeal: Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423. A single Judge has the power to determine the application by reason of s 25(2) of the Federal Court of Australia Act . 7 The applicant was born on 1 December 1963 and is a citizen of the People's Republic of China. He arrived in Australia on 24 October 2004. On 2 November 2004 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 23 November 2004 a delegate of the Minister refused to grant a protection visa. 8 On 30 December 2004 the applicant applied to the Tribunal for a review of the delegate's decision, and on 17 January 2005 the applicant was invited to attend a hearing before the Tribunal on 23 February 2005. He was told that, without more, the Tribunal could not make a decision in his favour on the basis of the information before it. The applicant did not respond to the hearing invitation by 17 February 2005, and the Tribunal proceeded to deal with his application under s 426A of the Migration Act 1958 (Cth). On 24 February 2005 the Tribunal decided to affirm the delegate's decision and it handed down that decision on 17 May 2005. 9 The applicant claimed that he had a well-founded fear of persecution by reason of his membership of a particular social group or political or religious opinions. This arose, he said, because of his membership of Falun Gong. The applicant claimed that he was the leader of Falun Gong in Tianjin and that he had been given many warnings by the local police. The applicant claimed that in December 1999 he was placed in detention for a period of one month and that in December 2002, after taking part in a demonstration against the local government, he was placed in detention for two months and forced to attend re-education classes. 10 The Tribunal was not satisfied on the information presented to it that the applicant had a genuine fear of persecution or that there was a real chance that he would be persecuted. The Tribunal referred to the information before it as 'very limited, vague and unreliable'.


case_text: In order to obtain leave to appeal, the applicant must show that the decision of the Magistrate is attended with sufficient doubt to warrant its reconsideration by this Court and that substantial injustice would result if leave were refused supposing the decision to be wrong. Leave may be granted more readily where substantive rights are at issue, as distinct from cases which involve a point of practice or procedure: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400. 15 The Tribunal complied with the requirements of the Migration Act 1958 (Cth), ss 425 , 425A , 426A and it was entitled to proceed to make its decision. It was entitled to conclude that the material before it was not sufficient to make out the applicant's claim. There is no arguable case of jurisdictional error and the decision of the Magistrate is not attended with sufficient doubt to warrant its reconsideration by this Court. In those circumstances, leave to appeal must be refused. 16 The application for leave to appeal is refused. The applicant must pay the first respondent's costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 30 June 2006 Applicant: The applicant appeared in person. Counsel for the Respondent: Ms S Zarucki Solicitor for the Respondent: Clayton Utz Date of Hearing: 8 May 2006 Date of Judgment: 30 June 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/809.html


case_text: submits that the following factors are also relevant: (a) the state of progression of the proceeding: Knight v Beyond Properties Pty Ltd (No 2) at [25]. (b) the degree to which cost and delay will be minimised by a single trial or by separate trials: Bishop v Bridgelands Securities Ltd at 314; (c) the efficient use of the resources of the parties and the court: Carter v Commissioner of Taxation at [23]; Dean-Willcocks v Air Transit International Pty Ltd at [34]; (d) that it is preferable from a public policy perspective to avoid a multiplicity of hearings: Main-Road Property Group Pty Ltd v Pelligra & Sons Pty Ltd [2007] VSC 43 at [21] ; (e) any relevant public interest in the proceeding: Dean-Willcocks v Air Transit International Pty Ltd at [35]; and (f) the degree of similarity in the transactions alleged in the proceedings this may be a more weighty consideration than the somewhat technical point that the transactions do not form a series: Australian Securities & Investment Commission v Somerville [2008] NSWSC 788 at [42] . SATTVIC'S SUBMISSIONS Limited and unique issues ASIC then submits that when the proceeding reaches the stage that an informed assessment can be made of whether any defendants would be prejudiced by a joint trial, other measures may be sufficient to avoid that prejudice. For example, ASIC says it has become commonplace in large and complex proceedings for trials to be staged in such a manner as to make it unnecessary for all parties to attend at all stages of the trial: Australian Securities & Investment Commission v Somerville [2008] NSWSC 788 at [48] [50], [57]; Dean-Willcocks v Air Transit International Pty Ltd at [70]; Main-Road Property Group Pty Ltd v Pelligra & Sons Pty Ltd at [25]; Jendas Pty Ltd v Jolly [1997] 2 VR 106 at 107. In Australian Securities & Investment Commission v Somerville , Austin J observed that ASIC could, with the Court's encouragement, conduct its case in such a way that the days upon which the eighth defendant in that matter would need to be represented in court would be limited. Cost, delay and the efficient use of the resources of the parties and the Court The various factors which led Austin J of the Supreme Court of New South Wales to recently allow a joinder of defendants by ASIC in Australian Securities & Investment Commission v Somerville are absent in the matter. There, Austin J, granted ASIC leave to join ten defendants in the one action. The first defendant was a Mr Somerville. The second defendant was the incorporated legal practice of which Mr Somerville had become a legal practitioner director. ASIC had contended that Mr Somerville had provided legal advice as a solicitor to each of the eight director defendants to the effect that they should sell the business or assets of a certain company to another purchaser company which each would control. The liability of Mr Somerville and his incorporated legal practice would only have arisen if contraventions by one or more of the other defendants were proved. It was the common participation of Mr Somerville as legal adviser that linked the transactions. Accordingly and most importantly, the cases against each of the eight director defendants were components of ASIC's case against Mr Somerville and his incorporated law firm for involvement in the contraventions by each director. It was, as his Honour found, an important part of ASIC's evidentiary case against Mr Somerville and his incorporated legal practice to show that, in respect of the eight transactions, there was a pattern and similarity devised by Mr Somerville [37]. Accordingly, ASIC and Mr Somerville were common parties to all claims. There was considered to be a likely saving of costs to ASIC and Mr Somerville by one proceeding, constituted with all ten defendants, going to trial. There was likely to have been a very substantial repetition of evidence should there have been a separation of the case against one of the defendants as Mr Somerville would have had to give evidence in the trial of that case as well as the case against the balance of the defendants. It was, accordingly, concluded that as a primary factor in refusing a separation order that the benefits to ASIC and Mr Somerville of a single proceeding in which the evidence of his involvement in the eight transactions was received once and for all was considered as of great significance. In this case, however, the common thread passing through the cases against each of the corporate defendants and indeed the personal defendants is that each of these cases concerns transactions involving Firepower BVI shares. There is, otherwise, no relationship between the corporate defendants nor any between Sattvic and either Mr Ward or Mr Johnston, the sixth and seventh defendants respectively. I am satisfied that it would be inconvenient to Mr Stein, particularly professionally, for the case against him to be tried together with the cases against the other defendants. More importantly, given the already adverse effect of these proceedings upon his reputation I think that the inevitable delay of a trial as against his company, Sattvic, would of itself render an injustice to him. I would expect such delay to be considerable in the circumstances. In my opinion, for these reasons, the motion should be granted with costs. I will invite the parties to bring in a minute of order reflecting these reasons. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 23 March 2009 Counsel for the Applicant: Mr M Pearce SC Solicitor for the Applicant: Blake Dawson Waldron Counsel for the Defendants: Mr M McCusker QC Solicitor for the Defendants: Freehills Date of Hearing: 5 February 2009 Date of Judgment: 23 March 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/250.html


case_text: relevant principles are not controversial. The basic principle, which ought to guide the exercise of discretion, is that "the Court should take whatever course seems to be most conducive to a just resolution of the disputes between the parties, but having regard to the desirability of limiting, so far as practicable, the costs and delay of the litigation": Bishop v Bridgelands Securities (1990) 25 FCR 311 at 314. This case involved an application for joinder of additional applicants, which raises similar considerations to the present one. ASIC submits that the following factors are also relevant: (a) the state of progression of the proceeding: Knight v Beyond Properties Pty Ltd (No 2) at [25]. (b) the degree to which cost and delay will be minimised by a single trial or by separate trials: Bishop v Bridgelands Securities Ltd at 314; (c) the efficient use of the resources of the parties and the court: Carter v Commissioner of Taxation at [23]; Dean-Willcocks v Air Transit International Pty Ltd at [34]; (d) that it is preferable from a public policy perspective to avoid a multiplicity of hearings: Main-Road Property Group Pty Ltd v Pelligra & Sons Pty Ltd [2007] VSC 43 at [21] ; (e) any relevant public interest in the proceeding: Dean-Willcocks v Air Transit International Pty Ltd at [35]; and (f) the degree of similarity in the transactions alleged in the proceedings this may be a more weighty consideration than the somewhat technical point that the transactions do not form a series: Australian Securities & Investment Commission v Somerville [2008] NSWSC 788 at [42] . SATTVIC'S SUBMISSIONS Limited and unique issues


case_text: to a defendant seeking a separate trial, including the possibility of unfairness, must be weighed against identified advantages to ASIC and to the defendants as a whole and the efficient use of the court's resources having regard to the commonality of issues raised by each claim: Dean-Willcocks v Air Transit International Pty Ltd [2002] NSWSC 525 ; (2002) 55 NSWLR 64 at [34] . The court should be concerned to determine what is the most efficient use of the resources of the parties and also of the court: Carter v Commissioner of Taxation [2001] FCA 575 ; (2001) 109 FCR 215 at [23] . ASIC submits that the following factors are also relevant: (a) the state of progression of the proceeding: Knight v Beyond Properties Pty Ltd (No 2) at [25]. (b) the degree to which cost and delay will be minimised by a single trial or by separate trials: Bishop v Bridgelands Securities Ltd at 314; (c) the efficient use of the resources of the parties and the court: Carter v Commissioner of Taxation at [23]; Dean-Willcocks v Air Transit International Pty Ltd at [34]; (d) that it is preferable from a public policy perspective to avoid a multiplicity of hearings: Main-Road Property Group Pty Ltd v Pelligra & Sons Pty Ltd [2007] VSC 43 at [21] ; (e) any relevant public interest in the proceeding: Dean-Willcocks v Air Transit International Pty Ltd at [35]; and (f) the degree of similarity in the transactions alleged in the proceedings this may be a more weighty consideration than the somewhat technical point that the transactions do not form a series: Australian Securities & Investment Commission v Somerville [2008] NSWSC 788 at [42] . SATTVIC'S SUBMISSIONS Limited and unique issues


case_text: to a defendant seeking a separate trial, including the possibility of unfairness, must be weighed against identified advantages to ASIC and to the defendants as a whole and the efficient use of the court's resources having regard to the commonality of issues raised by each claim: Dean-Willcocks v Air Transit International Pty Ltd [2002] NSWSC 525 ; (2002) 55 NSWLR 64 at [34] . The court should be concerned to determine what is the most efficient use of the resources of the parties and also of the court: Carter v Commissioner of Taxation [2001] FCA 575 ; (2001) 109 FCR 215 at [23] . ASIC submits that the following factors are also relevant: (a) the state of progression of the proceeding: Knight v Beyond Properties Pty Ltd (No 2) at [25]. (b) the degree to which cost and delay will be minimised by a single trial or by separate trials: Bishop v Bridgelands Securities Ltd at 314; (c) the efficient use of the resources of the parties and the court: Carter v Commissioner of Taxation at [23]; Dean-Willcocks v Air Transit International Pty Ltd at [34]; (d) that it is preferable from a public policy perspective to avoid a multiplicity of hearings: Main-Road Property Group Pty Ltd v Pelligra & Sons Pty Ltd [2007] VSC 43 at [21] ; (e) any relevant public interest in the proceeding: Dean-Willcocks v Air Transit International Pty Ltd at [35]; and (f) the degree of similarity in the transactions alleged in the proceedings this may be a more weighty consideration than the somewhat technical point that the transactions do not form a series: Australian Securities & Investment Commission v Somerville [2008] NSWSC 788 at [42] . SATTVIC'S SUBMISSIONS Limited and unique issues ASIC then submits that when the proceeding reaches the stage that an informed assessment can be made of whether any defendants would be prejudiced by a joint trial, other measures may be sufficient to avoid that prejudice. For example, ASIC says it has become commonplace in large and complex proceedings for trials to be staged in such a manner as to make it unnecessary for all parties to attend at all stages of the trial: Australian Securities & Investment Commission v Somerville [2008] NSWSC 788 at [48] [50], [57]; Dean-Willcocks v Air Transit International Pty Ltd at [70]; Main-Road Property Group Pty Ltd v Pelligra & Sons Pty Ltd at [25]; Jendas Pty Ltd v Jolly [1997] 2 VR 106 at 107. In Australian Securities & Investment Commission v Somerville , Austin J observed that ASIC could, with the Court's encouragement, conduct its case in such a way that the days upon which the eighth defendant in that matter would need to be represented in court would be limited. Cost, delay and the efficient use of the resources of the parties and the Court ASIC submits that it is in the public interest for a regulatory authority such as ASIC to be able to seek public relief in the most expeditious and cost effective way possible: by analogy, Dean-Willcocks v Air Transit International Pty Ltd at 74, where Austin J considered the public interest in a liquidator being able to recover unfair preferences expeditiously to be relevant. As I have said, I am not persuaded that a joint trial involving Sattvic is necessarily the most expeditious and cost effective way of disposing of this litigation. In any event, any possible public interest must be balanced against the legitimate private interests of Sattvic. Common Questions and Similar Issues ASIC submits that there are similarities between the way the share application form was used in the course of three of the offers alleged against Sattvic (at paras 212A to 212O of the plaintiff's amended statement of claim) and the way those forms were used in respect of certain offers alleged to have been made by other defendants (at paras 84-89, 160-164, 173-177 and 184-194 of the statement of claim). It then submits, without specificity, that much of the evidence and submissions on these issues are likely to be the same or substantially similar in respect of all defendants. I have considered the pleadings. In the end, as I have identified above, the issues for trial between ASIC and Sattvic are very limited. There is little or no dispute about factual matters which are substantially similar in the actions against the other defendants. In addition, ASIC submits that common questions of statutory interpretation affecting important provisions of the Corporations Act 2001 (Cth) are likely to arise in respect of all defendants, in particular s 707(3) and (4). It says that the purpose test in s 707(4) is relied on against all defendants and there will be common questions concerning the application of that test affecting all defendants. However, there is no live issue as to this between Sattvic and ASIC as the contentions of ASIC in this respect are admitted. Accordingly, no question of inconsistent judgments on this question arises.


case_text: which have been held to militate against making such an order include: (a) the potential overlap of evidence and argument, including the need for the same witnesses to be called at both trials: National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Limited [1996] FCA 1228 at [17] ; Dean-Willcocks v Commissioner of Taxation 2003 45 ACSR 298 at [18]; (b) the interrelationship between issues which are not capable of being resolved independently of each other: Mann v Board of Health (ACT) at 400F; (c) the potential disqualification of the judge that hears the first trial, if adverse findings are made as to the creditability of witnesses: National Mutual Property Services (Australia) Pty Ltd v Citbank Savings Limited at [16]; Dean-Willcocks v Commissioner of Taxation at [18]; and (d) the undesirability of inconsistent findings as to the same transactions: Henschel v Brittany Crepe Company Pty Ltd [1981] Qd R 173 at 175-176.


case_title: Henschel v Brittany Crepe Company Pty Ltd [1981] Qd R 173


case_title: Hinze v Zed [1926] SASR 77

case_text: which have been held to weigh in favour of exercising the discretion to order separate trials include: (a) the issues concerning the party seeking the separate trial are distinct and discrete: Bishop v Bridgeland Securities at 314; (b) a joint trial will involve the respondent in the expense of being present at the trial of questions with which they are not concerned and it would be unfair for the respondent to be compelled to participate in a large and costly proceeding where it has only marginal involvement: Hinze v Zed [1926] SASR 77 at 84; Knight v Beyond Properties Pty Ltd (No 2) [2006] FCA 192 at [30] and Newman v Hold Pty Ltd [2001] VSC 282 at [17] .


case_title: Jendas Pty Ltd v Jolly [1997] 2 VR 106

case_text: then submits that when the proceeding reaches the stage that an informed assessment can be made of whether any defendants would be prejudiced by a joint trial, other measures may be sufficient to avoid that prejudice. For example, ASIC says it has become commonplace in large and complex proceedings for trials to be staged in such a manner as to make it unnecessary for all parties to attend at all stages of the trial: Australian Securities & Investment Commission v Somerville [2008] NSWSC 788 at [48] [50], [57]; Dean-Willcocks v Air Transit International Pty Ltd at [70]; Main-Road Property Group Pty Ltd v Pelligra & Sons Pty Ltd at [25]; Jendas Pty Ltd v Jolly [1997] 2 VR 106 at 107. In Australian Securities & Investment Commission v Somerville , Austin J observed that ASIC could, with the Court's encouragement, conduct its case in such a way that the days upon which the eighth defendant in that matter would need to be represented in court would be limited. Cost, delay and the efficient use of the resources of the parties and the Court


case_text: which have been held to weigh in favour of exercising the discretion to order separate trials include: (a) the issues concerning the party seeking the separate trial are distinct and discrete: Bishop v Bridgeland Securities at 314; (b) a joint trial will involve the respondent in the expense of being present at the trial of questions with which they are not concerned and it would be unfair for the respondent to be compelled to participate in a large and costly proceeding where it has only marginal involvement: Hinze v Zed [1926] SASR 77 at 84; Knight v Beyond Properties Pty Ltd (No 2) [2006] FCA 192 at [30] and Newman v Hold Pty Ltd [2001] VSC 282 at [17] . ASIC submits that the following factors are also relevant: (a) the state of progression of the proceeding: Knight v Beyond Properties Pty Ltd (No 2) at [25]. (b) the degree to which cost and delay will be minimised by a single trial or by separate trials: Bishop v Bridgelands Securities Ltd at 314; (c) the efficient use of the resources of the parties and the court: Carter v Commissioner of Taxation at [23]; Dean-Willcocks v Air Transit International Pty Ltd at [34]; (d) that it is preferable from a public policy perspective to avoid a multiplicity of hearings: Main-Road Property Group Pty Ltd v Pelligra & Sons Pty Ltd [2007] VSC 43 at [21] ; (e) any relevant public interest in the proceeding: Dean-Willcocks v Air Transit International Pty Ltd at [35]; and (f) the degree of similarity in the transactions alleged in the proceedings this may be a more weighty consideration than the somewhat technical point that the transactions do not form a series: Australian Securities & Investment Commission v Somerville [2008] NSWSC 788 at [42] . SATTVIC'S SUBMISSIONS Limited and unique issues


case_text: submits that the following factors are also relevant: (a) the state of progression of the proceeding: Knight v Beyond Properties Pty Ltd (No 2) at [25]. (b) the degree to which cost and delay will be minimised by a single trial or by separate trials: Bishop v Bridgelands Securities Ltd at 314; (c) the efficient use of the resources of the parties and the court: Carter v Commissioner of Taxation at [23]; Dean-Willcocks v Air Transit International Pty Ltd at [34]; (d) that it is preferable from a public policy perspective to avoid a multiplicity of hearings: Main-Road Property Group Pty Ltd v Pelligra & Sons Pty Ltd [2007] VSC 43 at [21] ; (e) any relevant public interest in the proceeding: Dean-Willcocks v Air Transit International Pty Ltd at [35]; and (f) the degree of similarity in the transactions alleged in the proceedings this may be a more weighty consideration than the somewhat technical point that the transactions do not form a series: Australian Securities & Investment Commission v Somerville [2008] NSWSC 788 at [42] . SATTVIC'S SUBMISSIONS Limited and unique issues ASIC then submits that when the proceeding reaches the stage that an informed assessment can be made of whether any defendants would be prejudiced by a joint trial, other measures may be sufficient to avoid that prejudice. For example, ASIC says it has become commonplace in large and complex proceedings for trials to be staged in such a manner as to make it unnecessary for all parties to attend at all stages of the trial: Australian Securities & Investment Commission v Somerville [2008] NSWSC 788 at [48] [50], [57]; Dean-Willcocks v Air Transit International Pty Ltd at [70]; Main-Road Property Group Pty Ltd v Pelligra & Sons Pty Ltd at [25]; Jendas Pty Ltd v Jolly [1997] 2 VR 106 at 107. In Australian Securities & Investment Commission v Somerville , Austin J observed that ASIC could, with the Court's encouragement, conduct its case in such a way that the days upon which the eighth defendant in that matter would need to be represented in court would be limited. Cost, delay and the efficient use of the resources of the parties and the Court


case_text: inconvenience is alleged, it must be shown that there are factors which make it inconvenient for there to be a joint trial, rather than that a separate trial is more convenient: Mann v Board of Health (ACT) (1996) 67 FCR 383 at 399F. Factors which have been held to militate against making such an order include: (a) the potential overlap of evidence and argument, including the need for the same witnesses to be called at both trials: National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Limited [1996] FCA 1228 at [17] ; Dean-Willcocks v Commissioner of Taxation 2003 45 ACSR 298 at [18]; (b) the interrelationship between issues which are not capable of being resolved independently of each other: Mann v Board of Health (ACT) at 400F; (c) the potential disqualification of the judge that hears the first trial, if adverse findings are made as to the creditability of witnesses: National Mutual Property Services (Australia) Pty Ltd v Citbank Savings Limited at [16]; Dean-Willcocks v Commissioner of Taxation at [18]; and (d) the undesirability of inconsistent findings as to the same transactions: Henschel v Brittany Crepe Company Pty Ltd [1981] Qd R 173 at 175-176.


case_text: support of its contention that the evidence concerning the claims against it will be unique, Sattvic has filed an affidavit from one of the two persons it has identified as likely witnesses it will call at trial. As to this ASIC submits that it is necessary to bear in mind that the evidence when called may reveal overlap and connection not presently capable of being detected: Meadow Gem Pty Ltd v ANZ Executors and Trustees (unreported, Supreme Court of Victoria, 8 May 1995) at 14. For example, it says, evidence from the seventh defendant, Mr Johnston, may bear on the question of the date of issue of shares to Sattvic which is raised in paragraph 2 of Sattvic's defence. As before these submissions are speculative. If there were indeed the real likelihood of overlap it would by now be evident. In any event, even if there were some limited overlap of the kind described I do not regard that, of itself, as a basis for declining the order sought.


case_title: National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Limited [1996] FCA 1228


case_title: Newman v Hold Pty Ltd [2001] VSC 282


case_outcome: affirmed

case_text: 19 December 2007 an application was filed with the Migration Review Tribunal challenging the decision to refuse to grant the visa under s 65 of the Migration Act 1958 (Cth) ("the Migration Act "). The Tribunal affirmed the delegate's decision on 28 November 2008. The Federal Magistrates Court dismissed an application seeking review of the Tribunal's decision on 2 July 2009: Hu v Minister for Immigration and Citizenship (No 3) [2009] FMCA 629. On 23 July 2009 a Notice of Appeal was filed in this Court.


case_outcome: followed

case_title: Suh v Minister for Immigration and Citizenship [2009] FCAFC 42 , 175 FCR 515

case_text: to the amendments this consequence, it has been recognised, may have occasioned " injustice ": Suh v Minister for Immigration and Citizenship (" Suh ") [2009] FCAFC 42 at [17] , [2009] FCAFC 42 ; 175 FCR 515 at 519. Spender, Buchanan and Perram JJ there referred to the procedures prescribed " for a range of other nominations and sponsorships " and continued: [10] The contrast with the operation of cl 442 of Sch 2 is stark. There is no set of criteria identified for assessing a nomination for the purpose of occupational training. There is no specific requirement that such a nomination be approved or refused, although cl 442.222(1) contemplates both lodgment and approval as a precondition to a successful application for a subclass 442 visa. No right of review is given. It is tempting to regard that as a case of simple oversight or inattention. The consequences are serious as the present case demonstrates. Their Honours concluded: [14] However, a decision not to approve a nomination made for the purpose of cl 442.222(1) is not reviewable. Section 338 of the Act specifies what decisions are reviewable by the MRT including, under s 338(9), decisions which are prescribed for that purpose. A decision not to approve a nomination for the purpose of cl 442.222(1) is neither identified by s 338 nor elsewhere prescribed for that purpose. There was, accordingly, no right of review available against that decision ... In respect to the application there being made, as in the present case, to seek review of the decision of the Tribunal to refuse the visa, their Honours ultimately concluded: [26] ... There is no doubt that the appellants had a right to seek review of the delegate's decision to refuse a visa. The MRT had authority to deal with the merits of the visa applications. In that review, however, the visa applications suffered from a fatal defect that was beyond the reach of the MRT. The first appellant was required by cl 442.221 to satisfy each of the requirements in cl 442.222 to cl 442.229. That was not possible. There was no approved nomination as required by cl 442.222 and that was a matter with which the MRT could not deal. The decision to refuse the nomination was not reviewable. The MRT therefore had no choice but to affirm the subsidiary decision of the delegate to refuse the visa applications. That decision had been effectively shielded from any form of merits review by the MRT. It is therefore not open to find that the MRT committed any jurisdictional error. The potential for " injustice " may now have been addressed — at least in respect to applications made on or after 14 September 2009 — by the recent amendments to both the Act and the Regulations . But it is the Act and the Regulations prior to the 2009 amendments which continue to apply to the present Appellant. The Grounds of Appeal as set forth in the Notice of Appeal are as follows: The nomination decision must be reviewed at the Tribunal as a part of reviewable decision of the visa application if the nominator does not have a review right separately. The applicant lost a fair chance of presenting his case effectively as the nominator does not have a review right. The occupational trainee nominator also must have a review right as all other nominators have their review rights against the decisions on their applications. However the Grounds may be expressed, the fundamental difficulty confronting the Appellant is the simple fact that the Tribunal's decision was founded upon the delegate's refusal to accept the nomination. And that decision of the delegate was not then reviewable by the Tribunal. Given the terms of s 338, the fact that such decisions were not then " prescribed " pursuant to s 338(9) and the decision of the Full Court in Suh , the dismissal of an application seeking review of the Tribunal's decision was inevitable. Although it may readily be appreciated why the Appellant seeks to have the refusal to accept the nomination included as part of the review of what Ground 1 refers to as a " reviewable decision ", such a contention is contrary to the decision in Suh . There is some ambiguity in what is intended to be conveyed by Ground 2. If it is but a different way of expressing Ground 1, it adds nothing to the appeal. If, however, Ground 2 is intended to assert the loss of an opportunity to advance submissions before the Tribunal, this was not a ground agitated before the Federal Magistrate. Given the conclusion that a decision to refuse a nomination was not then reviewable by the Tribunal, it is difficult to envisage what the now Appellant (or anyone else) could have said which would have changed the decision reached. Moreover, it is not at all self-evident that the now Appellant has been denied " a fair chance of presenting his case ". The now Appellant was invited to attend the hearing before the Tribunal and did in fact attend a hearing on 21 November 2008. Why that hearing did not present the " fair chance " to which Ground 2 may be directed remains unexplained. Leave to raise Ground 2 is thus refused and, even if leave were granted, it would have been rejected.


case_text: the appeal was called for hearing there was no attendance on behalf of the Appellant. Notice of the date and place of hearing had been given to the Appellant. The solicitor for the First Respondent had also reminded the Appellant of the date and place for hearing when forwarding him a copy of the Minister's Outline of Written Submissions . Power is conferred upon the Court, in such circumstances, to dismiss the appeal: Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)(ii). On occasions that power is in fact exercised: e.g. Yu v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 117. Power is also conferred upon the Court by s 25(2B)(bc) to vary an order made pursuant to s 25(2B)(bb). When an appeal is dismissed for failure to attend, it may be appropriate for an Appellant to be advised as to the terms of s 25(2B)(bc): e.g. SZDNF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 378. Power is also conferred upon the Court by O 52 r 38A(1)(d) of the Federal Court Rules to proceed to hear an appeal in the absence of a party. Power is likewise conferred upon the Court by O 52 r 38A(2)(a) to set aside or vary an order made pursuant to O 52 r 38A(1)(d).


case_title: Yu v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 117


case_outcome: considered

case_text: Although no submissions were made in relation to the issue of the applicability of the doctrine of implied terms in respect of Mr McCarron's AWA, there is no apparent reason why such doctrine should not apply to imply a term that the operational reasons referred to in clause 30 of the AWA be 'genuine operation reasons' determined after proper inquiry. The doctrine which applies only where it is necessary to give efficacy to an agreement, was considered by the Judicial Committee of the Privy Council in BP Refinery (Westernport) Pty Limited v President, Councillors and Ratepayers of the Shire of Hasting [1977] HCA 40 ; (1977) 180 CLR 266. Had the parties applied their minds to the question of whether a proper assessment would be made to determine whether a total ban on leave was necessary or that only genuine reasons could justify a ban, the result would have been so obvious that it 'goes without saying' (see BP Refinery 180 CLR 283). Whilst the doctrine of implied terms is not applicable to an industrial award (see Byrne v Australian Airlines Limited [1995] HCA 24 ; (1995) 185 CLR 410), the terms under which Mr McCarron was employed was an agreement, and not an award. It is not necessary to decide this issue in view of the finding that there were no operational reasons which justified the ban on the NDCP thereby resulting in a breach of clause 30. If it were necessary in order to give efficacy to the AWA to imply a term requiring the provision that 'operational requirements' means 'genuine operational requirements', the Court would imply such a term, and would find that such implied term was breached.


case_text: The standard of proof required to determine whether the reason for conduct was prohibited under s 793 is to be considered in accordance with the principle derived from the judgment of Dixon J in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 at 362: see The Employment Advocate v National Union of Workers [2000] FCA 710 ; (2000) 100 FCR 454 at 464 where Einfeld J said I think that in dealing with these types of civil offences some standard of proof above mere satisfaction on the probabilities is appropriate. The Court is in any event bound by s 140(2) of the Evidence Act 1995 (Cth) to take into account the nature of the cause of action, the nature of the subject matter of the proceeding and the gravity of the matters alleged in determining whether it is reasonably satisfied that the matter has been proved.


case_title: Byrne v Australian Airlines Limited [1995] HCA 24 ; (1995) 185 CLR 410


case_text: The High Court in Patrick Stevedores Operations No 2 Pty Limited v Maritime Union of Australia [1998] HCA 30 ; (1998) 195 CLR 1 at 18, referring to s 298K(1)(c) of the Act being the predecessor to the current s 792(1)(c), said: par (c) is a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question. See also Branson J in Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329 where her Honour considered the scope of the meaning of a prejudicial alteration of an employee's position within the meaning of s 298K(1)(c) of the unamended Act.


case_text: With respect to the submission of the CPSU and Mr McCarron that the announcement of the leave ban constituted a threat of prohibited conduct within the meaning of s 793(2) of the Act, the OEA submits that as the ban on leave was not prohibited, its announcement could not have been a threat. Further, the OEA submits that the announcement of the leave ban did not constitute a threat as it did not menace or warn of an intention to inflict harm. The OEA relies upon the observations of Finkelstein J in Community and Public Sector Union v Telstra Corporation Ltd (2000) 99 IR 238.


case_text: The Full Court in Community and Public Sector Union v Telstra Corporation Ltd [2001] FCA 267 ; (2001) 107 FCR 93 considered the equivalent of s 792(1)(b) in the previous legislation and stated at page 100: It is sufficient for present purposes to say that if the prejudicial alteration is real and substantial, rather than merely possible or hypothetical, it will answer the description in s 298K(1)(c). 50 The Court is satisfied that the conduct of imposing the ban did alter the position of Mr McCarron to his prejudice as provided by s 792(1)(c). The effect of the ban upon Mr McCarron was real and substantial and not merely hypothetical: see Community and Public Sector Union [2001] FCA 267 ; 107 FCR 93. A further question remains, namely was such ban imposed for a prohibited reason within the meaning of s 793 of the Act? 51 To satisfy section 793(1) of the Act conduct prescribed in s 792 must be carried out, inter alia, because the employee is a member of an industrial association. Mr McCarron was a member of the CPSU and the NDCP was carried out under the auspices of the ACTU with the full support of the CPSU. Ms Skarratt and Mr McIlwain were aware that employees in the OEA were union members and that the NDCP was organised by the ACTU.


case_text: The OEA submits that leave was approved for Mr McCarron after orders of the Full Court in CPSU, The Commonwealth and Public Sector Union v Commonwealth of Australia [2006] FCAFC 176. It is submitted that because Mr McCarron attended the NDCP, his position was not altered to his prejudice. 44 As to alleged breaches of the AWA, it is submitted that Clause 30 of the AWA does not provide an absolute entitlement of flex leave for an employee. Clause 30(a) stipulated that flex leave was 'subject to operational requirements' . Clause 3 of the Policy required 'operational requirements and needs of individuals' to be taken into account when an employee and the manager were settling working arrangements, work patterns and flex-leave arrangements. Clause 1 of the Policy required managers and supervisors to have regard to the operational requirements of the area, the impact of granting the leave on clients and other members of the workgroup and the personal needs of the employee when approving the use of annual leave. The OEA submits that it had regard to its operational requirements when determining to refuse further flex leave and annual leave for participation in the rally.


case_text: The motivation for the ban is also a relevant consideration. In Greater Dandenong City Council v Australian Municipal, Administrative Clerical and Services Union [2001] FCA 349 ; (2001) 112 FCR 232 the Full Court considered the interpretation of s 298K of the unamended Act (the equivalent of s 793 of the current Act). At [164] Merkel J observed that s 298K was not concerned with the cause of the prejudicial conduct. Rather, it is concerned with the employer's reason or reasons for engaging in that conduct. [emphasis in the original]


case_text: The Court is required to determine whether there is a causal connection between the conduct of the OEA which altered Mr McCarron's position to his prejudice, and the status of Mr McCarron as a union member under s 793(1) of the Act: see Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 ; (1999) 93 FCR 34 at [294] - [296] per Nicholson J. An analysis of the authorities establishes that the Courts have interpreted s 793(1) of the Act as requiring the dominant or immediate purpose of the conduct to be considered and not the ultimate purpose in determining the motivation for the prohibited conduct. Such approach has been applied in statutory interpretation of other statutes: see for example Wribass Pty Limited v Swallow (1979) 38 FLR 92 at 104-106 and Tillmanns Butcheries Pty Limited v Australasian Meat Industry Employee's Union (1979) 42 FLR 331 at 349 which involved the interpretation of s 45D of the Trade Practices Act 1974 (Cth).


case_text: The ban affected all employees in the OEA, whether members of the CPSU or otherwise. However this circumstance does not lead to the conclusion that it was therefore not imposed for a 'prohibited reason'. In McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111 at 355 Greenwood J said: Dismissal of employees for a prohibited reason within a group of employees some of whom may be dismissed for a non-prohibited reason does not remove the individual or bilateral character of the prejudicial conduct on the part of the employer as against that employee. It would be an odd thing if the statutory quality of contravening conduct in respect of some employees could be dissolved amongst a group and remedial entitlements otherwise available to the affected individuals thereby lost. The question is whether the conduct, from the standpoint of the individual, notwithstanding others, represents conduct carried out for a prohibited purpose.


case_title: Patrick Stevedores Operations No 2 Pty Limited v Maritime Union of Australia [1998] HCA 30 ; (1998) 195 CLR 1


case_text: Ellicott J in Squires v Flight Stewards Association of Australia (1982) 2 IR 155 at 183 said of the words prohibiting an employer from injuring an employee in his employment as referred to in s 188 of the Conciliation and Arbitration Act 1904 (Cth): The words "injure in his employment" are in the context of s. 5 words of wide import. I do not regard them as referring only to financial injury or injury involving the deprivation of rights which the employee has under a contract of service. They are, in my view, applicable to any circumstances where an employee in the course of his employment is treated substantially differently to the manner in which he or she is ordinarily treated and where that treatment can be seen to be injurious or prejudicial.


case_text: Mr McCarron was entitled to have his leave applications properly considered by the OEA pursuant to the terms of his AWA. Pursuant to clause 30 of the AWA the approval of flex leave is subject to operational requirements. However the existence of operational requirements must be demonstrated and must be genuine and reasonable. The decision of the Full Court in Tasmanian Development and Resources v Martin (2000) 97 IR 66 at [26] provides support for a finding that there must be a factual basis for a conclusion that there were operational requirements which necessitated the ban on leave. The reasons advanced for operational requirements as referred to above amount to no more than, at the highest, an apprehension of staff shortages on the NDCP. Such fear was not based upon any enquiries of past experiences, nor any genuine assessment of the real staffing needs on the NDCP. Had enquiries of the relevant managers been made, the decision to impose the ban would at least have had a foundation. Such enquiries however would have revealed that a total ban, based on the experience of the two prior occasions, would not be necessary. Accordingly, the reasons advanced in support of the decision do not constitute a sufficient basis for imposing the ban on leave. It follows that by imposing such ban the OEA breached clause 30 of Mr McCarron's AWA with the OEA. 80 The CPSU and Mr McCarron also claimed that clause 33 of the AWA between Mr McCarron and the OEA was breached. The text of clause 33 is couched as a statement of the role of the relevant manager in ensuring that flex-leave arrangements provided by clause 30 are made available to employees. The OEA made no submissions on this issue, and in view of the Court's finding that clause 30 has been breached, it is not necessary to determine whether clause 33 creates a contractual right, and if so, whether it has been breached.


case_title: The Employment Advocate v National Union of Workers [2000] FCA 710 ; (2000) 100 FCR 454


case_title: Wribass Pty Limited v Swallow (1979) 38 FLR 92


case_title: Accounting Systems 2000 (Developments Pty Ltd) v CCH Australia Ltd (1993) 42 FCR 470

case_text: conclusion does not exclude the possibility of a claim by Olivaylle for relief under the TPA. The following observations made by Lockhart and Gummow JJ in Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470 at 505-506 are apposite: (8) The result of this examination of the provisions of the legislation before and after the 1977 Act is that para. 4 (2) (a), in dealing with "conduct" operates generally, in its terms, so that the T.P. Act after the 1977 Act, was to be read as "one connected and combined statement of the will of Parliament . ..": Sweeney v Fitzhardinge ; [1906] HCA 73 ; (1906) 4 CLR 716 at 735. So understood, para. 4 (2) (a) provides significant support for the conclusion reached in this case by the primary Judge, and for the general proposition that the making of a statement as to a presently existing state of affairs, if false, may be the engaging in misleading or deceptive conduct, where the statement is embodied as a provision of a contract. In many cases, there will have been pre-contractual conduct which itself contravenes s. 52. The present case is a striking one because it was presented on a narrower basis, and concerned the giving of the warranties in the contract itself. (9) Where the conduct relied upon involves not a statement as to a presently existing state of affairs, but a representation with respect to a future matter, which is contained purely in a contractual promise, then a case for contravention of s. 52 will involve consideration of the extra steps spelled out in s. 51A of the T.P. Act. Some of the issues that would arise in such a case are discussed by Ormiston J in Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217 at 233-241, where reference is made to the relevant authorities in this Court. But this is not a case concerning representations as to future conduct.


case_text: Reigate v Union Manufacturing Co (Ramsbottom) Ltd [1918] 1 KB 592 at 605, in a passage cited with approval by the Judicial Committee of the Privy Council in an Australian appeal, BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283, Scrutton LJ said: A term can only be implied if it is necessary in the business sense to give efficacy to the contract i.e., if it is such a term that it can confidently be said that if at the time the contract was being negotiated some one had said to the parties, 'What will happen in such a case?', they would both have replied: 'Of course, so and so will happen; we did not trouble to say that; it is too clear. Lord Justice Mackinnon made observations to like effect in relation to the implication of a contractual term in Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206 at 227 in a passage which also commended itself to the Judicial Committee in BP Westernport Case (ibid). That they did so did not relieve Flottweg of all design responsibility, so far as the supply of a line "N² flushed" from the malaxeurs is concerned. It necessarily followed, in order to give business efficacy to the contractual specification of the level of exclusion of atmospheric oxygen to be achieved ( BP Refinery (Westernport) Pty Ltd v Shire of Hastings , supra) that the equipment in the line from the malaxeurs on which Flottweg supplied at least had design features, or could be modified as contractually anticipated, so as at least to achieve that specification with an occupationally safe and commercially feasible supply of nitrogen of sufficient purity. As to what this might be, Mr Carey did not offer an opinion. Mr Nieuwkerk, who undertook the design and who consulted Mr Lorenz and Dr Paterson, did. When Mr Nieuwkerk had the benefit of a range of data not available to him when working on the plant during the test conducted on 25 May 2006 or, because of Olivaylle's belated attention to the rigour of its discovery obligation, when giving his initial affidavit in these proceedings, he came in his further affidavit to express the following opinion concerning the required sufficiency of nitrogen for the production line in its condition as last encountered by him in 2006: It is apparent that the filing and emptying of the malaxeurs has much less effect on the oxygen levels than I first thought. In particular, ..., the fact that oxygen levels were able to remain under 1% during the filling and emptying of the second run of malaxeur 1 suggests that the volume of additional nitrogen required to ensure that oxygen levels were maintained at similar levels in the other malaxeurs may not be as much as I ... estimated [in an earlier affidavit]. Accordingly, my estimate [in] my earlier affidavit that the volume of nitrogen necessary to operate at below 1% might be in the order of 120 cubic metres per hour, now appears to be high. The data also confirms my previous view that the nitrogen supply to the malaxeurs should be maintained continuously during the harvesting season, including when the system was not actively processing olives. This is because it was my observation, consistent with my experience, that were the oxygen levels were brought down to low levels prior to the start of processing those low levels were able to be maintained. For example, on each of the 21 st April 2006, 27 th April 2006 and 25 May 200 where the levels were brought down to below 1% prior to the commencement of processing, in most cases, those levels were able to be maintained throughout the process run. In my opinion, having observed the operation of the plant in 2005 and 2006 and now having the benefit of the data on the compact disc and Daily Data Sheets, if the available supply of nitrogen was doubled to 40 cubic metres per hour (which is the expanded maximum capacity of the existing nitrogen generator) this may be sufficient to maintain oxygen levels of below 1% in all parts of the plant through the process. [Emphasis added] In his oral evidence, Mr Nieuwkerk explained what he meant by the word "may" in his opinion as to sufficiency of nitrogen supply. The answer he gave was "should", ie more likely than not. It was well within his expertise to express such an opinion. I recall also that, in relation to the task of the provision of sufficient nitrogen and sufficient purity, Nr Nieuwkerk was retained by Olivaylle, not by Flottweg. The following excerpt, taken from Mr Nieuwkerk's later affidavit, offers a convenient summary both of his views and those initially given by Mr Carey in relation to the further data: At paragraph 18.6 and 18.7 [of his affidavit] Mr Carey sets out his observations in relation to the oxygen sensor data for the test on 25 May 2006 which appears on the compact disc which is marked as Exhibit ADC7 to Mr Carey's affidavit. I was at the plant during the 25 May 2006 test. I have reviewed the material on the compact disc in detail. I have also been given and have reviewed a bundle of documents which are described as the "Daily Data" sheets for various days during the 2006 and 2007 harvests ("Daily Data Sheets"). A folder which contains copies of the Daily Data Sheets that I have been provided is exhibited to me and is marked "DWN-4". The Daily Data Sheets in DWN-4 are in chronological order separated by numbered tabs. I did not have access to the Daily Data Sheets or the information on the compact disc at the time of the test in 2006 or at any time prior to swearing my earlier affidavit. According to my recollection of the events of 25 May 2006 along with these additional materials now made available to me it appears to me that a number of statements made by Mr Carey in paragraphs 18.6 and 18.7 [of his affidavit] are incorrect as follows: (i) at paragraph 18.6 Mr Carey states that in the time immediately before 2.35pm the level of oxygen in the malaxeur "rose sharply to around the atmospheric level of 20.9%". This is incorrect. The data shows that the only changes in recorded oxygen levels during this period were as follows: (A) At 2.03pm and 4 seconds the oxygen level is recorded at 20.562%; (B) At 2.03pm and 14 seconds the oxygen level is recorded as dropping to 0.281%; (C) At 2.19pm and 14 seconds the recorded oxygen level is recorded as rising at 0.311%; (D) At 2.35pm and 14 seconds the oxygen level is recorded as rising to 1.306%; (E) At 2.51pm and 14 seconds the oxygen level is recorded as dropping to 0.965% It is apparent from the data, and as Mr Carey states at paragraph 18.10.1, that there is a sampling interval of 16 minutes (that is, a single fresh reading is only taken every 16 minutes, despite the spreadsheets included on the compact disc reporting values for every 10 second interval). With respect to the recorded drop from above 20% to below 1% at 2.03pm (as opposed to the rise referred to by Mr Carey) I say that in my experience such a drop is impossible to achieve in 16 minutes in a vessel the size of a malaxeur with a maximum available nitrogen supply of 20 cubic metres per hour. I believe that this data reflects the sensor being switched at that time from sampling the outside air to sampling the atmosphere in the malaxeur. This is only the explanation that is consistent with the very sharp changes in the oxygen levels. If correct, the data for the time immediately prior to 2.03pm does not record the oxygen levels inside the malaxeur at all and is irrelevant to any assessment of whether the malaxeur was sufficiently sealed prior to that time. I note also that for the 16 minute cycle between 12.27pm and 12.43pm the reading is zero. This indicates, as Mr Carey states at 18.10.2, that the sensor was not functioning at that time. Mr Carey states that the second time in the day that the level of oxygen was below 1% in malaxeur 1 was between 2.51pm and 8pm "when the malaxeur was empty and closed after the last batch of olive paste during the day's run had been malaxed". This is not correct. The Daily Data Sheet for 25 May 2006 (a copy of which is at Tab 15 of DWN-4) shows that malaxeur 1 was filled and emptied during that time. In particular, it commenced filling at 3.05pm, it was full by 3.44pm, it started to empty at 4.35pm and it was not completely empty until 5pm. This is consistent with my recollection of the events of that day


case_text: behalf of Olivaylle it was submitted that this document "is clearly an important part of the background to the Contract". It is certainly part of that background; but in this case too much can be made of that fact. The role of such a document relative to the Contract is as described by Lord Wilberforce in Reardon Smith Line Ltd v Hansen-Tangen ; Hansen-Tangen v Sanko Steamship Co (The Diana Prosperity) [1976] 1 WLR 989 at 995-996, in a passage which commended itself to Mason J in Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 at 350 and to Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ in Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at 462, [22] : In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating.


case_text: acceptance was communicated by email to Olivaylle at its olive grove in Victoria. Experience suggests that email is often, but not invariably, a form of near instantaneous communication. The parties seemed content to assume that the place of contract was either Victoria or New South Wales, content because the common law of Australia was the same in either place and so, too, was the only statute law considered material. There was no suggestion in submissions that the place of contract was, for example, Germany. As a result, the ramifications of the adoption by the parties of email for their written pre-contractual communications, particularly the acceptance, were not explored. As it happens, the subject of formation of contracts by email has been explored in depth in an article by a local academic, Christensen S, "Formation of Contracts by Email Is it Just the Same as the Post?" (2001) 1(1) Queensland University of Technology Law and Justice Journal 22. Ms Christensen details there arguments for and against the assimilation of email communications with "the postal rule" or with what one might term "the instantaneous communication rule" and also the local adoption of international convention which touches on the subject. Having regard to the position taken by the parties in this case, it is not necessary to give detailed consideration to the point. It is enough to observe that I consider that there are analogies to be drawn with the way the law developed in relation to telex communications in an earlier era where what I have termed "the instantaneous communication rule" came to be adopted, perhaps at the expense of scientific precision but not so in relation to common commercial understanding. Thus, by analogy with cases concerning the position with what were, or were treated as, other forms of instantaneous communication, I consider that the contract was made where the acceptance was received, ie in Victoria: Entores Ltd v Miles Far East Corporation [1955] 2 QB 327; W A Dewhurst & Co Pty Ltd v Cawrse [1960] VR 278 ; Express Airways v Port Augusta Air Services [1980] Qd R 543; Reese Bros Plastics Ltd v Hamon-Sobelco Australia Pty Ltd (1988) 5 BPR 11 ,106.


case_title: Express Airways v Port Augusta Air Services [1980] Qd R 543