case_text: I do not read Finkelstein J's reasons for decision as departing from the application of the correct legal principles. Pleadings are a means to an end, and not an end in themselves: Banque Commerciale S.A., En Liquidation v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279 ( 'Akhil' ) at 293 per Dawson J. Their essential function is to state with sufficient clarity the case that must be met, so as to ensure the basic requirement of procedural fairness: Akhil at 286 per Mason CJ and Gaudron J. In Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664, the High Court said that pleadings and particulars have a number of functions: they furnish a statement of the case that is sufficiently clear to allow the other party a fair opportunity to meet it; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial; and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. 35 The authorities do not lay down a standard of perfection in pleadings. In Akhil , Dawson J referred, with approval, to the statement by Isaacs and Rich JJ in Gould & Birbeck & Bacon v Mount Oxide Mines Ltd (in liq) [1916] HCA 81 ; (1916) 22 CLR 490 at 517 that the function of pleadings is discharged when the case is presented with reasonable clearness, and any want of clearness can be cured by amendment or by particulars.


case_outcome: cited

case_text: I do not read Finkelstein J's reasons for decision as departing from the application of the correct legal principles. Pleadings are a means to an end, and not an end in themselves: Banque Commerciale S.A., En Liquidation v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279 ( 'Akhil' ) at 293 per Dawson J. Their essential function is to state with sufficient clarity the case that must be met, so as to ensure the basic requirement of procedural fairness: Akhil at 286 per Mason CJ and Gaudron J. In Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664, the High Court said that pleadings and particulars have a number of functions: they furnish a statement of the case that is sufficiently clear to allow the other party a fair opportunity to meet it; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial; and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court.


case_text: The authorities do not lay down a standard of perfection in pleadings. In Akhil , Dawson J referred, with approval, to the statement by Isaacs and Rich JJ in Gould & Birbeck & Bacon v Mount Oxide Mines Ltd (in liq) [1916] HCA 81 ; (1916) 22 CLR 490 at 517 that the function of pleadings is discharged when the case is presented with reasonable clearness, and any want of clearness can be cured by amendment or by particulars.


case_text: These propositions are not inconsistent with the authorities that state that particulars cannot be used to fill gaps in the material facts that must be alleged: Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712 per Scott LJ; H 1976 Nominees Pty Ltd v Galli (1979) 40 FLR 242 at 246; Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109; and Charlie Carter Pty Ltd v Shop, Distributive and Allied Employees' Association of Western Australia (1987) 13 FCR 413 ( 'Charlie Carter' ) at 419. That proposition is directed towards material facts that must be alleged to constitute a complete cause of action.


case_title: H 1976 Nominees Pty Ltd v Galli (1979) 40 FLR 242


case_text: These propositions are not inconsistent with the authorities that state that particulars cannot be used to fill gaps in the material facts that must be alleged: Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712 per Scott LJ; H 1976 Nominees Pty Ltd v Galli (1979) 40 FLR 242 at 246; Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109; and Charlie Carter Pty Ltd v Shop, Distributive and Allied Employees' Association of Western Australia (1987) 13 FCR 413 ( 'Charlie Carter' ) at 419. That proposition is directed towards material facts that must be alleged to constitute a complete cause of action. 37 It can be difficult to distinguish between a material fact and a particular: Charlie Carter at 417 per French J. The difference often turns upon the level of generality at which the material facts are alleged in a particular pleading. Consistently with the rules of pleading, a cause of action can be pleaded at different levels of generality, depending upon the nature of the case and the subject matter in question. A pleader is not compelled to plead primary or evidentiary facts. Most pleadings will set forth the material facts at a level which involves some element of conclusion concerning the factual ingredients of the cause of action. But, whatever level of generality is adopted in the statement of claim, it must adhere to the basic principle that the purpose of pleadings is to define the issues and thereby inform the parties in advance of the case they have to meet and so enable them to take steps to deal with it: Charlie Carter at 417. On the other hand, a pleading will infringe the applicable practice rules if it contains nothing more than broad conclusions asserted at such a high level of generality that the opposite party cannot understand the case it has to meet: see, eg, Trade Practices Commission v David Jones (Australia) Pty Ltd, supra, at 113-115.


case_text: These propositions are not inconsistent with the authorities that state that particulars cannot be used to fill gaps in the material facts that must be alleged: Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712 per Scott LJ; H 1976 Nominees Pty Ltd v Galli (1979) 40 FLR 242 at 246; Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109; and Charlie Carter Pty Ltd v Shop, Distributive and Allied Employees' Association of Western Australia (1987) 13 FCR 413 ( 'Charlie Carter' ) at 419. That proposition is directed towards material facts that must be alleged to constitute a complete cause of action. 37 It can be difficult to distinguish between a material fact and a particular: Charlie Carter at 417 per French J. The difference often turns upon the level of generality at which the material facts are alleged in a particular pleading. Consistently with the rules of pleading, a cause of action can be pleaded at different levels of generality, depending upon the nature of the case and the subject matter in question. A pleader is not compelled to plead primary or evidentiary facts. Most pleadings will set forth the material facts at a level which involves some element of conclusion concerning the factual ingredients of the cause of action. But, whatever level of generality is adopted in the statement of claim, it must adhere to the basic principle that the purpose of pleadings is to define the issues and thereby inform the parties in advance of the case they have to meet and so enable them to take steps to deal with it: Charlie Carter at 417. On the other hand, a pleading will infringe the applicable practice rules if it contains nothing more than broad conclusions asserted at such a high level of generality that the opposite party cannot understand the case it has to meet: see, eg, Trade Practices Commission v David Jones (Australia) Pty Ltd, supra, at 113-115. 38 In Charlie Carter , French J summed up the applicable principles at 417 by saying that: 'The sufficiency of the pleading may be judged first by reference to the necessary condition that it disclose a reasonable cause of action and secondly, by reference to the requirement for sufficient particularity that the respondents know in advance the case they have to meet.' I am not satisfied that Finkelstein J departed, or intended to depart, from this principle. 39 The applicants argued that no account should be taken of the directions which Finkelstein J made for further particularisation of the cross claims. They relied essentially on two grounds: first, they submitted that the reasons for decision do not mention the prospect that any lack of particularity in the cross claims could be remedied by the provision of particulars; and secondly, they submitted that particulars cannot cure a defective pleading which does not set out the material facts that are required to constitute a reasonable cause of action. As to the first ground, I do not see why it should be assumed that Finkelstein J was oblivious to the possibility that any lack of particularity of the kind complained by the applicants could be cured by the provision of particulars. After all, his Honour made orders relating to particulars on 7 July 2006. As to the second ground, the applicants did not contend that the lack of particularity about which they complained had the consequence that the cross claims disclosed no reasonable cause of action against Baker & McKenzie and Munro.


case_text: More generally, I do not consider that Finkelstein J's orders granting leave to file the cross claims should be seen in isolation from the other orders which he made on 7 July 2006. In Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 569 at [8] and [9], Merkel J said: 'In my view the Court's case management and individual docket system is such that it is well placed to ensure that there is no embarrassment or prejudice about the pleadings and proper particulars can be required to be provided at an appropriate time. At this point of time I am not satisfied by the evidence or the submissions on behalf of Esso that the pleadings are so wide that the resulting embarrassment or prejudice is such that Esso is unable to properly or adequately plead to the statement of claim or proceed with any other interlocutory steps. ... Further, to the extent embarrassment might exist it is more properly dealt with by a requirement that particulars be provided rather than the pleading be struck out.' To the extent that the cross claims are defective or do not strictly comply with the rules of pleading, any prejudice to the applicants is not irremediable. It is capable of being addressed by the provision of particulars or by the trial judge undertaking other appropriate case management steps as this action proceeds towards trial. If adequate particulars are not provided, the applicants could also move to strike out the unsupported allegations. 41 In determining to grant leave to file the cross claims, Finkelstein J was exercising a discretion that fell squarely within the realm of case management. It is clear from his reasons for decision that Finkelstein J weighed up several factors. He was satisfied that the amended cross claims adequately notified Baker & McKenzie and Munroe of the case they had to meet. On an objective assessment, he concluded that the causes of action against Baker & McKenzie and Munro were clear from the cross claims. He also considered that counsel for the applicants had demonstrated, by their submissions, that they understood the causes of action that were raised against them by the cross claims. On the other side of the ledger, Finkelstein J took into account the fact that there were, or may be, deficiencies in the manner in which the cross claims had been pleaded. It is reasonable to infer that his Honour considered that those deficiencies could be addressed by the provision of particulars, as to which he made directions. His Honour also took into account the stage of the proceedings, the adjournment of the proceedings to 20 November 2006, and the desirability of not jeopardising a timely trial of the case. In my opinion, this process of reasoning was open to his Honour. I do not consider that it discloses any error of principle warranting the grant of leave to appeal. 42 Like Finkelstein J, I consider that the basic claims alleged against each of the applicants are tolerably clear from the relevant cross claims. In the absence of any pleading or particulars identifying what facts were allegedly known, or ought to have been known, by Baker & McKenzie and Munro at the time that they engaged in the conduct pleaded against them, I may have reached a different conclusion about the grant of leave to file the cross claims. But this is irrelevant. The question I must consider on an application for leave to appeal is not whether an appellate court would exercise its discretion in the same way as the trial judge, but whether there is sufficient doubt that the primary judge's discretion miscarried because he failed to apply the correct legal principles so as to warrant reconsideration by the Full Court. In my opinion, the course which Finkelstein J followed was open to him, and it cannot be said that his decision discloses an error of principle justifying the grant of leave to appeal. 43 The applicants also submitted that Finkelstein J fell into error in the weight he attached to the importance of not jeopardising a timely trial of the action. In my opinion, Finkelstein J was entitled to have regard to the desirability of achieving a timely trial of the action. I do not consider that Finkelstein J elevated this consideration to such a level that it had the consequence that he did not apply the correct principles when he granted leave to file the cross claims. 44 The applicants argued that Finkelstein J assumed that any delay in the institution of the cross claims was the fault of Baker & McKenzie and Munro, and that he took this into account to their prejudice. I do not read his Honour's reasons for decision in that way. Finkelstein J referred to the lateness of the cross claims as a relevant objective fact, but he did not attribute that situation to the fault of Baker & McKenzie or Munro. 45 Lastly, the applicants submitted that Finkelstein J failed to take into account the fact that this was the fourth proposed amended cross claim put forward by CSL and the Directors. This submission counts cross claims which were circulated between the parties as well as those which were filed. Clearly, Finkelstein J was conscious of the background to the leave applications: his reasons state that cross claims were first filed on 30 June 2005, and a month or so earlier Finkelstein J had struck out earlier versions of the cross claims. I do not accept the applicants' submission and, in any event, I do not think it supports the grant of leave to appeal. 46 Assuming for the purposes of argument that Finkelstein J erred in principle in his decision to grant leave to file the cross claims, I am not satisfied that substantial injustice would result if I refuse leave to appeal. Finkelstein J's orders did not determine any substantive rights of the parties. The central complaint raised by the applicants is that the allegations of breach of duty and/or involvement in contraventions are not supported by proper pleading and particulars. The substance of this complaint is capable of being addressed by the provision of appropriate particulars. If that does not occur, the applicants can make another application to the trial judge seeking particulars and/or an order striking out the cross claims.


case_text: In my view, there can be no real doubt that the effective or operative decision was the second decision. First, it was a review or reconsideration of the first decision; second, it was made by a delegate of the Deputy Commissioner who, at the relevant time, was at a higher level to the delegate of the Deputy Commissioner who made the first decision: see Amcor Ltd v Comptroller-General of Customs (1988) 79 ALR 221 at 226; Corinthian Industries (Syd) Pty Ltd v Comptroller-General of Customs & Ors (1989) 86 ALR 387 at 388; Universal Magazines Pty Ltd v Comptroller-General of Customs [1990] FCA 244 ; (1990) 21 ALD 502 at 503, 504; and Post Office Agents Association Ltd & Anor v Australian Postal Commission (1988) 84 ALR 563 at 571.


case_title: Corinthian Industries (Syd) Pty Ltd v Comptroller-General of Customs & Ors (1989) 86 ALR 387


case_outcome: applied

case_text: Subsections 8AAG(3) and 8AAG(4) are true alternatives. Subsection 8AAG(5) is intended to cover cases which are not within subs (3) and (4): Elias v Commissioner of Taxation (2002) 51 ATR 1 at [45]. 20 The Commissioner is required to reach a state of satisfaction as to the elements in subss 8AAG(3), (4) and (5). 21 If the Commissioner is satisfied as to the matters referred to in one of the subsections, then the Commissioner is required to remit all or part of the GIC. Use of the expression 'the Commissioner may remit' the GIC if satisfied as to specified matters, does not confer a residual discretion not to remit all or part of the GIC: Webb v Commissioner of Taxation (No. 2) [1993] FCA 612 ; (1993) 27 ATR 459 at 469; followed in Elias at [46]. On the other hand, the expression '... all or a part of the charge ...' gives the Commissioner a residual discretion as to how much of the charge is remitted even if he is satisfied as to the specified matters in subs 8AAG(3), (4) or (5). 22 Subsections 8AAG(4)(c) and 8AAG(5)(a) require the Commissioner to be satisfied that it would be 'fair and reasonable' to remit all or part of the GIC. In determining the issue whether it would be fair and reasonable to remit the GIC, the Commissioner is entitled to take into account in the exercise of that discretion the policy of the TAA that additional tax is payable as at a certain date. That is a matter to be weighed in determining the fairness and reasonableness of remission: Webb at 469, followed in Elias at [47].


case_title: Post Office Agents Association Ltd & Anor v Australian Postal Commission (1988) 84 ALR 563


case_title: Universal Magazines Pty Ltd v Comptroller-General of Customs [1990] FCA 244 ; (1990) 21 ALD 502


case_text: If the Commissioner is satisfied as to the matters referred to in one of the subsections, then the Commissioner is required to remit all or part of the GIC. Use of the expression 'the Commissioner may remit' the GIC if satisfied as to specified matters, does not confer a residual discretion not to remit all or part of the GIC: Webb v Commissioner of Taxation (No. 2) [1993] FCA 612 ; (1993) 27 ATR 459 at 469; followed in Elias at [46]. On the other hand, the expression '... all or a part of the charge ...' gives the Commissioner a residual discretion as to how much of the charge is remitted even if he is satisfied as to the specified matters in subs 8AAG(3), (4) or (5). 22 Subsections 8AAG(4)(c) and 8AAG(5)(a) require the Commissioner to be satisfied that it would be 'fair and reasonable' to remit all or part of the GIC. In determining the issue whether it would be fair and reasonable to remit the GIC, the Commissioner is entitled to take into account in the exercise of that discretion the policy of the TAA that additional tax is payable as at a certain date. That is a matter to be weighed in determining the fairness and reasonableness of remission: Webb at 469, followed in Elias at [47].


case_text: principles which may assist the Court in exercising its discretion under O 52 r 15(2) were articulated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349, and subsequently adopted by the Full Court in Parker v The Queen at pars 6-7, as follows: 1. 'Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an "acceptable explanation for the delay"; it must be "fair and equitable in the circumstances" to extend time. 2. Action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. 3. Any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension. 4. However, the mere absence of prejudice is not enough to justify the grant of an extension. 5. The merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.'


case_text: FM further found that in any event relief should be refused because the applicant had engaged in a scheme with an unknown person in order to mislead and deceive the Minister amounting to misconduct and the applicant should not enjoy the fruits of this scheme. Driver FM cited NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199 in support of this proposition. Limitations of time in respect of filing and serving notices of appeal of decisions of the Federal Magistrates Court in the Federal Court are set out in O 52 r 15 Federal Court Rules . The rule provides: '(1) The notice of appeal shall be filed and served - (a) within 21 days after - (i) the date when the judgment appealed from was pronounced; (ii) the date when leave to appeal was granted; or (iii) any later date fixed for that purpose by the court appealed from; or (b) within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph. (2) Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.' The applicant in this case did not apply to the Court within 21 days of the judgment of Driver FM. The decision of Driver FM was handed down on 13 March 2006 and the application for an extension of time was filed in this Court on 5 April 2005, two days outside the timeframe. It follows that the applicant is required to seek the leave of this Court pursuant to O 52 r 15(2) to file and serve a notice of appeal. The first respondent, in written and oral submissions asserted that: • the court below did not err in concluding that the protection visa application was valid notwithstanding that the applicant has signed it in a false name and made false claims: citing NAWZ • the court below never had jurisdiction so its order to dismiss the application with costs was an appropriate order • alternatively if the court below did have jurisdiction, there was no error in concluding that the protection visa application was valid and as such the application should have been dismissed with costs • even if the court below had jurisdiction and the protection visa application was invalid, relief should have been refused anyway given that the applicant had knowingly participated in a deception of the minister. The submissions of the applicant and the submissions of the first respondent are somewhat divergent. The applicant has directed his submissions, including assertions in his affidavit of 5 April 2006 and his oral submissions, towards the delay in filing his notice of appeal, and addressing the decision of the Tribunal. The first respondent has focussed on the issue of the validity of the protection visa application and the validity of the decision of the Tribunal as determined by Driver FM. The case before Driver FM was determined by his Honour on the issue of the validity of the visa application and the Tribunal hearing. I have briefly recounted the reasons for this in this judgment. Driver FM explains the background in more detail in his judgment. In this case the applicant sought a show cause order in the Federal Magistrates Court pursuant to r 44.12 Federal Magistrates Court Rules 2001 which is as follows: ' Show cause hearing (1) At a hearing of an application for an order to show cause, the Court may: (a) if it is not satisfied that the application has raised an arguable case for the relief claimed -- dismiss the application; or (b) if it is satisfied that the application has raised an arguable case for the relief claimed -- adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application. (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.' Hearing the application on 27 February 2006, it appears his Honour dismissed the application insofar as it attacked the merits of the Tribunal decision. As clear from r 44.12(2), that decision was interlocutory. His Honour went on however to grant the application in relation to the validity of the protection visa application and the Tribunal decision, which the learned Federal Magistrate heard on 13 March 2006. The applicant could have sought leave to appeal the decision of Driver FM of 27 February 2006 in relation to the dismissal of the show cause application relevant to the merits of the Tribunal decision. He did not do so, and is not doing so now. Instead he lodged an amended application in the Federal Magistrates Court as already discussed. Unfortunately, from the grounds which have been put before me in this matter, it is possible that the applicant did not understand that his Honour was dismissing that part of his application. To that extent, submissions of the applicant in relation to the merits of the Tribunal decision, and why he was unsuccessful before the Tribunal, are not relevant in this case. I note, for the benefit of the applicant, that this Court has a limited jurisdiction in reviewing decisions of the Tribunal, and in fact has no jurisdiction to review findings of fact by the Tribunal, nor investigate the merits of the applicant's claim, except to the extent that errors of law may be demonstrated. I also note however although this does not form part of my decision that the Tribunal appeared to give careful consideration to the claims of the applicant, including giving him the benefit of the doubt in respect of a number of his claims, but nonetheless affirmed the decision not to grant a protection visa for reasons stated in their Decision Record. In relation to the submissions of the respondent, the decision of the Full Court of the Federal Court in NAWZ is applicable. Although made in the context of s 98 of the Act, I note in particular comments of their Honours at par 18: 'We do not consider that the irregular manner of filling in and signing of the false application resulted in the invalidity of the application. It was a false application but it was, in formal terms, a valid application.' In this case, the applicant had completed an application for a protection visa under a false name, and signed it. As Driver FM pointed out, that fact alone does not render the application invalid, it was the applicant's application regardless of what name he chose to use on it, and it was a complete application regardless of whether the claims and other details in it were true or false. Further, in my view it would be contrary to public policy to allow the applicant to claim that the process of lodgement of a protection visa was flawed because he had lodged the first application under a false name, for whatever reason (cf NAWZ at par 14). Accordingly on this reasoning both the decision of the delegate of the Minister and the Tribunal were valid.


case_title: Parker v The Queen [2002] FCAFC 133

case_text: principles applicable to an extension of time are well settled. Whilst it is important that parties observe the time limits set by the Rules, the Court does have discretion to extend time to permit a notice of appeal to be filed in order to avoid injustice where a party has missed a prescribed deadline for filing ( Parker v The Queen [2002] FCAFC 133 at pars 10-13). The applicant must however demonstrate 'special reasons' to the Court. Guiding principles which may assist the Court in exercising its discretion under O 52 r 15(2) were articulated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349, and subsequently adopted by the Full Court in Parker v The Queen at pars 6-7, as follows: 1. 'Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an "acceptable explanation for the delay"; it must be "fair and equitable in the circumstances" to extend time. 2. Action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. 3. Any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension. 4. However, the mere absence of prejudice is not enough to justify the grant of an extension. 5. The merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.'


case_text: my view in this case the applicant has insufficient prospects of success to warrant granting an extension of time to file a notice of appeal ( WAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 399 at par 9 per Lee, Nicholson and Finkelstein JJ, and more recently Conti J in SZFBU v Minister for Immigration and Multicultural Affairs [2006] FCA 1018 at pars 9-10). Notwithstanding that the delay in filing the notice of appeal was short and it appeared that the respondents experienced no prejudice, in my view the appropriate order is to dismiss the application with costs. ORDER 1. The application for extension of time to file and serve a notice of appeal be dismissed. 2. The applicant pay the costs of the first respondent fixed at the sum of $3500. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 18 August 2006 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: S Lloyd Solicitor for the Respondent: Sparke Helmore Date of Hearing: 3 August 2006 Date of Judgment: 18 August 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1086.html


case_text: a supporting affidavit filed 5 April 2006, the applicant recounted facts including his failed application for review to the Tribunal, and the fact that he lost his case before Driver FM. The applicant also noted that his migration agent had not lodged his amended application in the Federal Magistrates Court, although I note from the judgment of Driver FM that his Honour gave leave for a form of amended application to be filed in court ( SZHTW v Minister for Immigration & Anor [2006] FMCA 356 at par 6).


case_title: WAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 399


case_text: The present proceeding is an appeal from a judgment of the Federal Magistrates Court ('FMC') of 17 August 2005 dismissing the appellants' applications for review on the basis of Anshun estoppel. 2 The four appellants, who are citizens of Sri Lanka, applied for protection visas. The appellants are a husband and wife and their two children. The husband claimed to fear persecution by reason of his actual or imputed political opinion. The claims of the wife and the children are derivative, rather than independent claims, as they are dependent on a successful outcome of the husband's claim to refugee status. 3 The appellants' applications were refused by a delegate of the first respondent, and the Refugee Review Tribunal ('the RRT') affirmed that refusal. On 23 November 2001, the first appellant (the husband) filed an application in the Court seeking judicial review of the RRT's decision. 6 A notice of appeal from the decision of Marshall J was filed by the first appellant but was discontinued on 11 November 2002. On 4 November 2002, and prior to discontinuing the appeal, the appellants applied to the High Court for an order nisi for writs of certiorari, mandamus and prohibition. On 7 February 2003, the High Court remitted the matter to this Court. On 2 June 2004, North J transferred the proceeding to the FMC. On 17 August 2005, the FMC dismissed the application on the basis that Anshun estoppel as outlined in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 (' Anshun ') prevented it from being pursued. 7 Before the FMC, the appellants relied on the following grounds of review: '(a) a breach of the rules of natural justice occurred in connection with the making of the Decision. (b) the Decision involved an error of law, whether or not the error appears on the record of the Decision. (c) procedures that were required by law to be observed in connection with the making of the Decision were not observed. (d) the making of the Decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made. (e) that there was no evidence or other material to justify the making of the Decision. (f) the Decision was otherwise contrary to law.' 8 The ground concerning natural justice, which is now the subject of this appeal, was not raised before Marshall J. The FMC found that: 'it was unreasonable for the applicants not to have advanced their full claim in the original proceedings before Marshall J in the Federal Court and that no "special circumstances" exist which would relieve the applicants of the ordinary operation of the Anshun rule. No material was before the Court to advance a case of "special circumstances" existing and there appears no reason for the issues raised in these proceedings not being raised in the earlier proceedings.' 12 I have carefully considered the detailed reasons for judgment of the FMC and am unable to find any error on its part. The procedural fairness ground of review now agitated by the appellants was a ground that was open to be raised, but was not raised, at the hearing before Marshall J. In my view the FMC has correctly applied Anshun estoppel in respect of the application for judicial review before it. 13 In any event, the procedural fairness ground is without merit. It is said to be based on the RRT failing to bring arguably adverse country information upon which it relied to the attention of the appellants. However, as was pointed out in the first respondent's written submissions, the appellants would have been aware of the information as it was considered in the delegate's decision and the substance of it had been raised at the hearing before the RRT. As the husband appellant's appeal has failed, it follows that the appeal of each of the other appellants must also be dismissed with costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel. Associate: Dated: 9 February 2006 For the Appellants: The Appellants appeared in person Counsel for the Respondent: H Riley Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 3 February 2006 Date of Judgment: 3 February 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/40.html


case_outcome: followed

case_text: In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 the Full Court considered the question whether an applicant for a licence to sell 'X-rated' videos had been denied natural justice on the ground that the decision maker had not, prior to refusing to grant the licence, given the applicant an opportunity to make submissions beyond the submissions the applicant had already made. In reversing the trial Judge's decision, the Full Court considered the scope of the concept of natural justice in relation to such a hearing and said at 590: It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material: Dixon v Commonwealth (1981) 61 ALR 173 at 179. However, as Lord Diplock said in F Hoffman-La Roche and Co. A.G. v Secretary of State for Trade and Industry (1975) AC 295 at 369: "... the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If that were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would be abolished." A person likely to be affected by an administrative decision to which requirements of procedural fairness apply can support his or her case by appropriate information but cannot complain if it is not accepted. On the other hand, if information on some factor personal to that person is obtained from some other source and is likely to have an effect upon the outcome, he or she should be given the opportunity of dealing with it: Kioa v West at 587 (Mason J), 628 (Brennan J). Within the bounds of rationality a decision-maker is generally not obliged to invite comment on the evaluation of the subject's case: Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 506 (Fox J), 513 (Neaves J). In Ansett Transport Industries Ltd v Minister for Aviation (1987) 72 ALR 469 at 499, Lockhart J expressly agreed with the observations of Fox J in Sinnathamby on this point. See also Geroudis v Minister for Immigration Local Government and Ethnic Affairs (1990) 19 ALD 755 at 756-7 (French J) and Somaghi v Minister for Immigration, Local Government, and Ethnic Affairs (supra) at 103 (Keely J), 119 (Gummow J). The general propositions set out above may be subject to qualifications in particular cases. Two such qualifications were enunciated by Jenkinson J in Somaghi at 108-109: 1. The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it: Kioa v West at 587 (Mason J); Sinnathamby at 348 (Burchett J ); Broussard v Minister for Immigration and Ethnic Affairs (1989) 98 ALR 180 at 189 (Burchett J). 2. The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: Minister for Immigration and Ethnic Affairs v Kumar (unreported, Full Court, Federal Court, 31 May 1990); Kioa v West at 573, 588 and 634 .


case_text: In NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 the Full Court observed at [21] that the Federal Magistrate whose decision was being challenged had no transcript of the Tribunal's hearing before him and there was 'simply no basis upon which his Honour could properly have made this finding' of mis- interpretation. In Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168 the Full Court considered a challenge to the accuracy of an interpreter's translation and observed that the appellant had not presented to the Court 'any material attesting to the inaccuracy of the interpretation provided, nor any review by a competent interpreter of an audio recording of the Tribunal's proceedings '.


case_outcome: referred to

case_text: In the present proceedings the Tribunal had clearly indicated its concerns to the appellant. The Tribunal's reasons state: 'the Tribunal alerted the applicant to its concerns...' as set out above. This discharged the obligation to provide procedural fairness because the decision maker brought to the appellant's attention 'the critical issue or factor on which the decision is likely to turn so that he or she may have an opportunity of dealing with it...' : see Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Straight Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539 at 557 per Merkel J; see also Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502, especially Fox J at 505-506 and Neaves J at 513. At 513 Neaves J said: It was a matter for the delegate to evaluate the material placed before him and, as the whole of that material had its source in what the appellant had said, there was no obligation upon him to inform the appellant that that material might result in him forming a conclusion adverse to her.


case_text: In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 the Full Court considered the question whether an applicant for a licence to sell 'X-rated' videos had been denied natural justice on the ground that the decision maker had not, prior to refusing to grant the licence, given the applicant an opportunity to make submissions beyond the submissions the applicant had already made. In reversing the trial Judge's decision, the Full Court considered the scope of the concept of natural justice in relation to such a hearing and said at 590: It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material: Dixon v Commonwealth (1981) 61 ALR 173 at 179. However, as Lord Diplock said in F Hoffman-La Roche and Co. A.G. v Secretary of State for Trade and Industry (1975) AC 295 at 369: "... the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If that were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would be abolished." A person likely to be affected by an administrative decision to which requirements of procedural fairness apply can support his or her case by appropriate information but cannot complain if it is not accepted. On the other hand, if information on some factor personal to that person is obtained from some other source and is likely to have an effect upon the outcome, he or she should be given the opportunity of dealing with it: Kioa v West at 587 (Mason J), 628 (Brennan J). Within the bounds of rationality a decision-maker is generally not obliged to invite comment on the evaluation of the subject's case: Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 506 (Fox J), 513 (Neaves J). In Ansett Transport Industries Ltd v Minister for Aviation (1987) 72 ALR 469 at 499, Lockhart J expressly agreed with the observations of Fox J in Sinnathamby on this point. See also Geroudis v Minister for Immigration Local Government and Ethnic Affairs (1990) 19 ALD 755 at 756-7 (French J) and Somaghi v Minister for Immigration, Local Government, and Ethnic Affairs (supra) at 103 (Keely J), 119 (Gummow J). The general propositions set out above may be subject to qualifications in particular cases. Two such qualifications were enunciated by Jenkinson J in Somaghi at 108-109: 1. The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it: Kioa v West at 587 (Mason J); Sinnathamby at 348 (Burchett J ); Broussard v Minister for Immigration and Ethnic Affairs (1989) 98 ALR 180 at 189 (Burchett J). 2. The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: Minister for Immigration and Ethnic Affairs v Kumar (unreported, Full Court, Federal Court, 31 May 1990); Kioa v West at 573, 588 and 634 . 24 In the present proceedings the Tribunal had clearly indicated its concerns to the appellant. The Tribunal's reasons state: 'the Tribunal alerted the applicant to its concerns...' as set out above. This discharged the obligation to provide procedural fairness because the decision maker brought to the appellant's attention 'the critical issue or factor on which the decision is likely to turn so that he or she may have an opportunity of dealing with it...' : see Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Straight Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539 at 557 per Merkel J; see also Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502, especially Fox J at 505-506 and Neaves J at 513. At 513 Neaves J said: It was a matter for the delegate to evaluate the material placed before him and, as the whole of that material had its source in what the appellant had said, there was no obligation upon him to inform the appellant that that material might result in him forming a conclusion adverse to her.


case_title: Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168


case_text: In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 the Full Court considered the question whether an applicant for a licence to sell 'X-rated' videos had been denied natural justice on the ground that the decision maker had not, prior to refusing to grant the licence, given the applicant an opportunity to make submissions beyond the submissions the applicant had already made. In reversing the trial Judge's decision, the Full Court considered the scope of the concept of natural justice in relation to such a hearing and said at 590: It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material: Dixon v Commonwealth (1981) 61 ALR 173 at 179. However, as Lord Diplock said in F Hoffman-La Roche and Co. A.G. v Secretary of State for Trade and Industry (1975) AC 295 at 369: "... the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If that were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would be abolished." A person likely to be affected by an administrative decision to which requirements of procedural fairness apply can support his or her case by appropriate information but cannot complain if it is not accepted. On the other hand, if information on some factor personal to that person is obtained from some other source and is likely to have an effect upon the outcome, he or she should be given the opportunity of dealing with it: Kioa v West at 587 (Mason J), 628 (Brennan J). Within the bounds of rationality a decision-maker is generally not obliged to invite comment on the evaluation of the subject's case: Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 506 (Fox J), 513 (Neaves J). In Ansett Transport Industries Ltd v Minister for Aviation (1987) 72 ALR 469 at 499, Lockhart J expressly agreed with the observations of Fox J in Sinnathamby on this point. See also Geroudis v Minister for Immigration Local Government and Ethnic Affairs (1990) 19 ALD 755 at 756-7 (French J) and Somaghi v Minister for Immigration, Local Government, and Ethnic Affairs (supra) at 103 (Keely J), 119 (Gummow J). The general propositions set out above may be subject to qualifications in particular cases. Two such qualifications were enunciated by Jenkinson J in Somaghi at 108-109: 1. The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it: Kioa v West at 587 (Mason J); Sinnathamby at 348 (Burchett J ); Broussard v Minister for Immigration and Ethnic Affairs (1989) 98 ALR 180 at 189 (Burchett J). 2. The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: Minister for Immigration and Ethnic Affairs v Kumar (unreported, Full Court, Federal Court, 31 May 1990); Kioa v West at 573, 588 and 634 . 23 In Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100, the majority of the Full Court said at 119: However, in a particular case, fairness may require the applicant to have the opportunity to deal with matters adverse to the applicant's interest which the decision-maker proposes to take into account, even if the source of concern by the decision-maker is not information or materials provided by the third party, but what is seen to be the conduct of the applicant in question.


case_text: The finding of the Tribunal was based upon its non acceptance of the appellant's testimony. The Tribunal based its findings upon information which the appellant provided to the Tribunal for the purposes of the application for review. Accordingly it falls within the exception to s 424A(1) of the Act contained in s 424A(3)(b) of the Act: see SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [35] . 26 For the above reasons, this appeal is dismissed. 27 The Minister has sought an order for costs in the sum of $3000. Since this is within a reasonable range for costs, the Court will make the order sought. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 18 October 2007 Counsel for the Appellant: The appellant appeared in person Counsel for the Respondent: J. Mitchell Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 16 August 2007 Date of Judgment: 18 October 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1092.html


case_text: Counsel for the first respondent argued that the Tribunal's function is to review the decision on the merits and within the framework provided in Div 5 of Pt 5 of the Act: Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 ; (2004) 139 FCR 344, followed in Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58 ; (2005) 143 FCR 314. The Tribunal properly carried out its task of a merits review and asked itself the correct question on the merits review.


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58 ; (2005) 143 FCR 314


case_text: I accept the submissions of counsel for the first respondent. The Tribunal afforded the applicant a merits review and it was not, therefore, required to address any alleged denial of procedural fairness before the delegate ( Humayun v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 35 at [30] ('Humayun') ). 35 Counsel for the applicant said that the Tribunal had received the response dated 17 May 2005 from the University referring to the applicant's 'semester weighted average' as being unsatisfactory for semester 2 of 2004, but that response had also stated that the applicant was no longer terminated and was granted a 'reprieve' of conditional status. Counsel submitted that the Tribunal treated the applicant's conditional status as of no significance and relied only on the reference in the response to the applicant's 'semester weighted average' as being conclusive that the University had not certified the applicant's academic result to be satisfactory. 41 In Humayun at [21] Wilcox J (with whom Conti and Stone JJ agreed) confirmed that the education provider has a 'measure of discretion' as to what level of academic performance is satisfactory for the purposes of providing a certificate in respect of Condition 8202. However, Wilcox J (with whom Conti J agreed) drew a distinction between a decision made by the education provider in relation to whether an academic result was at least satisfactory and a decision made in relation to the status of a student. At [22], Wilcox J (with whom Conti J agreed) said: 'I see no inconsistency in an educational institution saying to a student, whether simultaneously or at different times: (i) "we will allow you to continue your course"; (ii) "your academic results to date are unsatisfactory". On 22 January 2003, the University made the first statement to the appellant; on 7 February 2003 it made the second.' 42 In that case, the majority found that the University's letter of 22 January 2003, did not constitute a certification by the provider which met the requirements of Condition 8202. 43 The case which the applicant put to the Tribunal was that he accepted that his academic result was unsatisfactory, but that after having given the matter some consideration he had decided to appeal against his terminated status on the grounds that he had only three subjects left to do for his degree. It is apparent that the Tribunal was conscious of the requirement to consider only the question of whether the education provider had certified that the applicant had achieved an academic result that was at least satisfactory, as opposed to any decision of the University in relation to the academic status of the applicant. It cannot be said that, in so doing, the Tribunal asked itself the wrong question. The Tribunal had considerable sympathy for the plight of the applicant but came to the view that the letter from the University of 13 April 2005 and the email response of 17 May 2005 from the University did not comprise a certificate to the effect that the academic result was 'at least satisfactory'. It cannot be said that in coming to that view, the Tribunal misconceived the material from the University. The letter of 13 April 2005 refers only to the student's academic status. The email response from the University of 17 May 2005 itself draws a distinction between the applicant's academic result and his academic status. The email does not certify that the applicant's appeal has led to the 'academic result' being reclassified as 'at least satisfactory'. The email records that the 'semester weighted average' result was 'unsatisfactory', and says that the appeal resulted in a 'reprieve' in the academic status to 'conditional'.


case_text: Counsel for the applicant submitted that the cases of Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436 and Weerasinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 261 support the contention that an education provider can take into account discretionary factors when determining whether an applicant's academic result has been 'at least satisfactory'.


case_title: Weerasinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 261


case_text: I also reject the contention of the applicant that the Tribunal committed jurisdictional error by failing to make inquiries as to whether or not the University's letter and email response meant that the University was thereby certifying that the academic result was 'at least satisfactory'. There is no absolute obligation on the Tribunal to make inquiry ( Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333 ; (2004) 141 FCR 448). Once it is recognised that a distinction is to be drawn between a student achieving an academic result that is certified to be 'at least satisfactory', and the academic status accorded to a student, there was no ambiguity in relation to the material from the University and, therefore, no reason for the Tribunal to embark upon any inquiry of the University. 45 I find, therefore, that the Tribunal did not fall into jurisdictional error. It follows that the application must be dismissed with costs. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate: Dated: 23 June 2006 Counsel for the Applicant: Mr R Lindsay Solicitor for the Applicant: CGN Legal Counsel for the First Respondent: Mr J Allanson Solicitor for the First Respondent: Australian Government Solicitor Date of Hearing: 19 October 2005 and 15 February 2006 Date of Judgment: 23 June 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/788.html


case_text: In .au Domain Administration Ltd v Domain Names Australia Pty Ltd (2004) 207 ALR 521 at [12]-[26] Finkelstein J provided a useful summary of the approach that might be taken where a court is required to assess conduct by reference to a specific class or classes of consumers and did that by particular reference to Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202-203 per Deane and Fitzgerald JJ and Nike at [100]-[103]. The approach may be summarised in six points, as follows: (1) first, identify the relevant section or sections of the public by reference to which the issue is to be tested. The target section or sections of the public would, of course, vary according to the facts of each case: Parkdale at 209 per Mason J; Finucane v New South Wales Egg Corp (1988) 80 ALR 486 at 516. The relevant section or sections of the public may be confined by factors such as the time period over which the alleged representations were made and the geographical circulation of the advertisements containing the alleged representations. (For an example of geographical circulation defining the relevant test section, see Talmax Pty Ltd v Telstra Corporation Ltd [1997] 2 Qd R 444 at 446); (2) second, having identified the relevant section or sections of the public, consider who comes within that section or those sections. This may include the astute and the gullible, the intelligent and the not so intelligent, the well educated and the poorly educated: see also Parkdale at 199 per Gibbs CJ; (3) third, it is permissible, but not essential, to have regard to evidence that some person has in fact been misled, though this evidence will not be conclusive; (4) fourth, it is necessary to enquire whether any proven misconception has arisen because of the misleading or deceptive conduct; (5) fifth, where the persons alleged to have been misled are members of a class, it is necessary to isolate a representative member of the class and enquire whether that hypothetical person is likely to be deceived; (6) sixth, when considering the likely effect of the misrepresentation on this hypothetical person, he or she should be judged as an "ordinary" or "reasonable" member of the class, excluding reactions to the representation that are "extreme" or "fanciful".


case_text: When considering whether conduct is misleading or deceptive, a court must consider the conduct as a whole and should accordingly consider whether the entire representation in question, including the disclaimer, is misleading or deceptive: see Butcher at [152]. For a disclaimer to prevent the conduct in question from being misleading or deceptive, it must either communicate information to the relevant class such that they are not misled at all, or provide information to the relevant class so that, in an evidentiary sense, it is unable to be shown that the relevant class relied on the representation: Karmot Auto Spares Pty Ltd v Dominelli Ford (Hurstville) Pty Ltd (1992) 35 FCR 560 at 572; Alpine Holdings Pty Ltd v Warwick Entertainment Centre Pty Ltd (2003) 11 Tas R 242. When considering the effectiveness of a disclaimer its form and the manner of its execution, as much as its substance, are relevant factors: Keen Mar Corp Pty Ltd v Labrador Park Shopping Centre Pty Ltd [1989] ATPR 46-048.


case_text: The relevant legal principles have been well traversed by Australian courts. A two-step analysis is required. First, it is necessary to ask whether each or any of the pleaded representations is conveyed by the particular events complained of: Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45 at [105] ; National Exchange Pty Ltd v Australian Securities and Investments Commission [2004] ATPR 42-000 at [18] per Dowsett J (with whom Jacobson and Bennett JJ agreed) and Astrazeneca Pty Ltd v GlaxoSmithKline Australia Pty Ltd [2006] ATPR 42-106 at [37]. That is, do the 12 Events singularly or collectively convey either of the Coverage Representations and do the 3 Events singularly or collectively convey the CDMA Comparison Representation. 19 As noted, under the two-step analysis that has been described, the court cannot consider each event in isolation. Each event must be considered within the context of the advertising campaign of which it formed part: see Telstra Corporation Ltd v Optus Communications Pty Ltd (1996) 36 IPR 515 at 523-524; Trade Practices Commission v Optus Communications Pty Ltd (1996) 64 FCR 326 at 338; Astrazeneca at [24]; Johnson & Johnson Pacific Pty Ltd v Unilever Australia Ltd (No 2) [2007] ATPR 42-136 at [16]. In a national advertising campaign it would ordinarily be expected that there would be a dominant message and, in such a case, particular attention should be paid to that dominant message. In Telstra Corporation at 524, that principle was stated as follows: In television and print advertising where a false dominant impression is conveyed, its message will not be ameliorated by the accuracy of the detailed message which is derived from a careful analysis of all the constituent parts of the advertisement.


case_text: Secondly, it is necessary to ask whether the representations conveyed are false, misleading or deceptive or likely to mislead or deceive. This is a "quintessential question of fact": Australian Competition and Consumer Commission v Telstra (2004) 208 ALR 459 at [49].


case_text: Because the conduct complained of in the present matter was not directed at a specific individual both questions that have been identified must be considered by reference to the class or classes of consumers likely to be affected by the conduct: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 199 per Gibbs CJ; Nike at [102], [103], [105] and [106]; Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592 at [36] per Gleeson CJ, Hayne and Heydon JJ. 116 When considering whether conduct is misleading or deceptive, a court must consider the conduct as a whole and should accordingly consider whether the entire representation in question, including the disclaimer, is misleading or deceptive: see Butcher at [152]. For a disclaimer to prevent the conduct in question from being misleading or deceptive, it must either communicate information to the relevant class such that they are not misled at all, or provide information to the relevant class so that, in an evidentiary sense, it is unable to be shown that the relevant class relied on the representation: Karmot Auto Spares Pty Ltd v Dominelli Ford (Hurstville) Pty Ltd (1992) 35 FCR 560 at 572; Alpine Holdings Pty Ltd v Warwick Entertainment Centre Pty Ltd (2003) 11 Tas R 242. When considering the effectiveness of a disclaimer its form and the manner of its execution, as much as its substance, are relevant factors: Keen Mar Corp Pty Ltd v Labrador Park Shopping Centre Pty Ltd [1989] ATPR 46-048.


case_text: The relevant legal principles have been well traversed by Australian courts. A two-step analysis is required. First, it is necessary to ask whether each or any of the pleaded representations is conveyed by the particular events complained of: Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45 at [105] ; National Exchange Pty Ltd v Australian Securities and Investments Commission [2004] ATPR 42-000 at [18] per Dowsett J (with whom Jacobson and Bennett JJ agreed) and Astrazeneca Pty Ltd v GlaxoSmithKline Australia Pty Ltd [2006] ATPR 42-106 at [37]. That is, do the 12 Events singularly or collectively convey either of the Coverage Representations and do the 3 Events singularly or collectively convey the CDMA Comparison Representation. 16 Because the conduct complained of in the present matter was not directed at a specific individual both questions that have been identified must be considered by reference to the class or classes of consumers likely to be affected by the conduct: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 199 per Gibbs CJ; Nike at [102], [103], [105] and [106]; Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592 at [36] per Gleeson CJ, Hayne and Heydon JJ. 17 In .au Domain Administration Ltd v Domain Names Australia Pty Ltd (2004) 207 ALR 521 at [12]-[26] Finkelstein J provided a useful summary of the approach that might be taken where a court is required to assess conduct by reference to a specific class or classes of consumers and did that by particular reference to Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202-203 per Deane and Fitzgerald JJ and Nike at [100]-[103]. The approach may be summarised in six points, as follows: (1) first, identify the relevant section or sections of the public by reference to which the issue is to be tested. The target section or sections of the public would, of course, vary according to the facts of each case: Parkdale at 209 per Mason J; Finucane v New South Wales Egg Corp (1988) 80 ALR 486 at 516. The relevant section or sections of the public may be confined by factors such as the time period over which the alleged representations were made and the geographical circulation of the advertisements containing the alleged representations. (For an example of geographical circulation defining the relevant test section, see Talmax Pty Ltd v Telstra Corporation Ltd [1997] 2 Qd R 444 at 446); (2) second, having identified the relevant section or sections of the public, consider who comes within that section or those sections. This may include the astute and the gullible, the intelligent and the not so intelligent, the well educated and the poorly educated: see also Parkdale at 199 per Gibbs CJ; (3) third, it is permissible, but not essential, to have regard to evidence that some person has in fact been misled, though this evidence will not be conclusive; (4) fourth, it is necessary to enquire whether any proven misconception has arisen because of the misleading or deceptive conduct; (5) fifth, where the persons alleged to have been misled are members of a class, it is necessary to isolate a representative member of the class and enquire whether that hypothetical person is likely to be deceived; (6) sixth, when considering the likely effect of the misrepresentation on this hypothetical person, he or she should be judged as an "ordinary" or "reasonable" member of the class, excluding reactions to the representation that are "extreme" or "fanciful".


case_text: Part of this contextual approach requires consideration of any "hangover effect" caused by earlier advertising. That is, it is necessary to consider whether an impression obtained from an earlier but related advertisement may need to be taken into account in determining whether a later advertisement is misleading: see Duracell Australia Pty Ltd v Union Carbide Australia Ltd (1988) 14 IPR 293 at 299, cited in Singtel Optus Pty Ltd v Telstra Corporation Ltd [2004] FCA 859 at [43] ; and Optus Communications at 338.


case_title: Finucane v New South Wales Egg Corp (1988) 80 ALR 486


case_text: As the express words make clear, s 84(2)(b) of the Act is concerned with both actual and "ostensible or apparent authority": see Freeman & Lockyer (a firm) v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 at 503. 132 Consistent with that view of s 84(2)(b) of the Act , the ACCC contends that Telstra is liable on two grounds: first, that each of the Events was published by one of Telstra's dealers and secondly, by reason of the prominence of the Telstra branding in each of the Events. 133 A copy of a dealership agreement between Telstra Corporation Ltd and De Graaff Holdings Pty Ltd incorporating licence terms and mobile service terms ("the dealership agreement") was adduced into evidence as representative of the contractual arrangements between Telstra and its dealers. The terms of the dealership agreement are, unsurprisingly, confidential. For that reason, I do not propose to set out the terms of the agreement in any detail.


case_text: I have carefully reviewed each Event several times and have sought to assess the likely effect of each Event on mobile phone users, including potential mobile phone users. In undertaking that task I have been conscious of the fact that a detailed inspection of the transcript of the television and radio advertisements must give a misleading impression of what is conveyed. However, in reviewing each Event I also had at the forefront the following caution from Lindgren J in Gillette Australia Pty Ltd v Energizer Australia Pty Ltd (2002) 193 ALR 629 at [47] regarding television advertising: ... [A]part from the difference between a one-off viewing and repeated viewings, the circumstances in which a judge attends to a television commercial for the purposes of a case are not those in which members of the public do so. First, members of the public watch a commercial after and before viewing other things, rather than in isolation. Second, unlike the judge, they do not carefully view the commercial with a special interest in noting and memorising its features. Third, they view the commercial, not in the calm of chambers, but against a background of distractions, such as domestic activity, or simply a preoccupation with other more interesting or pressing concerns. Fourth, usually they do not know in advance that the commercial is about to commence. 41 Similar caution must be adopted when reviewing the other, non-television Events. 42 With that caution in mind, I shall now set out a more detailed description of each of the 12 Events.


case_title: Johnson & Johnson Pacific Pty Ltd v Unilever Australia Ltd (No 2) (2007) ATPR 42-136

case_text: As noted, under the two-step analysis that has been described, the court cannot consider each event in isolation. Each event must be considered within the context of the advertising campaign of which it formed part: see Telstra Corporation Ltd v Optus Communications Pty Ltd (1996) 36 IPR 515 at 523-524; Trade Practices Commission v Optus Communications Pty Ltd (1996) 64 FCR 326 at 338; Astrazeneca at [24]; Johnson & Johnson Pacific Pty Ltd v Unilever Australia Ltd (No 2) [2007] ATPR 42-136 at [16]. In a national advertising campaign it would ordinarily be expected that there would be a dominant message and, in such a case, particular attention should be paid to that dominant message. In Telstra Corporation at 524, that principle was stated as follows: In television and print advertising where a false dominant impression is conveyed, its message will not be ameliorated by the accuracy of the detailed message which is derived from a careful analysis of all the constituent parts of the advertisement.


case_title: Karmot Auto Spares Pty Ltd v Dominelli Ford (Hurstville) Pty Ltd (1992) 35 FCR 560


case_title: Keen Mar Corp Pty Ltd v Labrador Park Shopping Centre Pty Ltd [1989] ATPR 46-048


case_text: Section 84(2)(b) is an enlarging provision intended to widen the common law principles relating to agency rendering a person's conduct that of the company if it can be said to have been "engaged in on behalf of" the company or "at the direction or with the consent or agreement of" a servant of the company: Trade Practices Commission v Sun Alliance Australia Ltd [1994] ATPR 41-286 at 41,848 and the cases cited therein and Lisciandro v Official Trustee in Bankruptcy (1996) 69 FCR 180 at 188-189 per Ryan and Drummond JJ.


case_text: The relevant legal principles have been well traversed by Australian courts. A two-step analysis is required. First, it is necessary to ask whether each or any of the pleaded representations is conveyed by the particular events complained of: Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45 at [105] ; National Exchange Pty Ltd v Australian Securities and Investments Commission [2004] ATPR 42-000 at [18] per Dowsett J (with whom Jacobson and Bennett JJ agreed) and Astrazeneca Pty Ltd v GlaxoSmithKline Australia Pty Ltd [2006] ATPR 42-106 at [37]. That is, do the 12 Events singularly or collectively convey either of the Coverage Representations and do the 3 Events singularly or collectively convey the CDMA Comparison Representation.


case_text: Because the conduct complained of in the present matter was not directed at a specific individual both questions that have been identified must be considered by reference to the class or classes of consumers likely to be affected by the conduct: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 199 per Gibbs CJ; Nike at [102], [103], [105] and [106]; Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592 at [36] per Gleeson CJ, Hayne and Heydon JJ. 17 In .au Domain Administration Ltd v Domain Names Australia Pty Ltd (2004) 207 ALR 521 at [12]-[26] Finkelstein J provided a useful summary of the approach that might be taken where a court is required to assess conduct by reference to a specific class or classes of consumers and did that by particular reference to Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202-203 per Deane and Fitzgerald JJ and Nike at [100]-[103]. The approach may be summarised in six points, as follows: (1) first, identify the relevant section or sections of the public by reference to which the issue is to be tested. The target section or sections of the public would, of course, vary according to the facts of each case: Parkdale at 209 per Mason J; Finucane v New South Wales Egg Corp (1988) 80 ALR 486 at 516. The relevant section or sections of the public may be confined by factors such as the time period over which the alleged representations were made and the geographical circulation of the advertisements containing the alleged representations. (For an example of geographical circulation defining the relevant test section, see Talmax Pty Ltd v Telstra Corporation Ltd [1997] 2 Qd R 444 at 446); (2) second, having identified the relevant section or sections of the public, consider who comes within that section or those sections. This may include the astute and the gullible, the intelligent and the not so intelligent, the well educated and the poorly educated: see also Parkdale at 199 per Gibbs CJ; (3) third, it is permissible, but not essential, to have regard to evidence that some person has in fact been misled, though this evidence will not be conclusive; (4) fourth, it is necessary to enquire whether any proven misconception has arisen because of the misleading or deceptive conduct; (5) fifth, where the persons alleged to have been misled are members of a class, it is necessary to isolate a representative member of the class and enquire whether that hypothetical person is likely to be deceived; (6) sixth, when considering the likely effect of the misrepresentation on this hypothetical person, he or she should be judged as an "ordinary" or "reasonable" member of the class, excluding reactions to the representation that are "extreme" or "fanciful".


case_title: Singtel Optus Pty Ltd v Telstra Corporation Ltd [2004] FCA 859


case_title: Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177


case_title: Talmax Pty Ltd v Telstra Corporation Ltd [1997] 2 Qd R 444


case_title: Telstra Corporation Ltd v Optus Communications Pty Ltd (1996) 36 IPR 515


case_title: Trade Practices Commission v Optus Communications Pty Ltd (1996) 64 FCR 326


case_title: Trade Practices Commission v Sun Alliance Australia Ltd [1994] ATPR 41-286


case_text: Consistently with Dr Cusick's approach, Deltapine's argument centred around the possible redaction of material said not to be relevant to this proceeding. It seems to me with respect however that this rather misses the point. If a document is relevant to the issues in the present proceeding, that does not exclude the risk that disclosure to Professor Adang may lead (without any subjective bad faith on his part) to commercial damage to Bayer. On the contrary, the more relevant the document to this proceeding, the more sensitive and potentially damaging it would be to Bayer. Knowledge once acquired cannot be isolated within the mind behind some internal Chinese wall: see Mobil Oil Australia Pty Ltd v Guina Developments Pty Ltd [1996] 2 VR 34 at 38. 20 I think Bayer have made out a case for refusing disclosure. The hard fact is that Professor Adang is a direct commercial competitor in the field of the Patent. The documents in question are admitted to be confidential. 21 It is not clear whether refusal of disclosure to Professor Adang means that he will not be giving evidence for Deltapine. Deltapine did not assert as much before me. However, I accept that at the very least his value as a witness would be substantially affected. But I am confident that no substantial injustice will be caused to Deltapine because they propose to lead evidence from three other experts, Professor Richard Roush, Director of the Statewide IPM Program at the University of California at Davis, Professor Sarjeet Gill, Chair of the Department of Cell Biology and Neuroscience, University of California at Riverside and Dr Paul Ebert of the School of Life Sciences, University of Queensland, all of whom appear to be eminently qualified. Bayer has consented to Deltapine providing its confidential documents to both Professor Gill and Dr Ebert. Deltapine does not wish to disclose Bayer's confidential documents to Professor Roush.


case_text: The danger of hindsight was also referred to by Lord Diplock in Technograph Printed Circuits Ltd v Mills-Rockley (Electronics) Ltd [1972] RPC 346 at 362 (and approved by the High Court in Aktiebolaget Hässle v Alphapharm Pty Ltd [2002] HCA 59 ; (2002) 194 ALR 485 at 491) in these terms: 'Once an invention has been made it is generally possible to postulate a combination of steps by which the inventor might have arrived at the invention that he claims in his specification if he started from something that was already known. But it is only because the invention has been made and has proved successful that it is possible to postulate from what starting point and by what particular combination of steps the inventor could have arrived at his invention. It may be that taken in isolation none of the steps which it is now possible to postulate, if taken in isolation, appears to call for any inventive ingenuity. It is improbable that this reconstruction a posteriori represents the mental process by which the inventor in fact arrived at his invention, but, even if it were, inventive ingenuity lay in perceiving that the final result which it was the object of the inventor to achieve was attainable from the particular starting point and in his selection of the particular combination of steps which would lead to that result.


case_text: Having regard to the terms of the claims in suit and to the principles of construction set out in the authorities (see Kimberly-Clark Australia Pty Ltd v Arico Trading International Pty Ltd [1999] HCA 66 ; (2001) 201 CLR 1 at 16; Populin v HB Nominees Pty Ltd (1982) 41 ALR 471 at 475-476; Stena Rederi Aktiebolag v Austral Ship Sales Pty Ltd (2007) 73 IPR 257 at 263-264), I am persuaded that for the wear assembly to work in a practical manner and withstand the forces brought to play on it, it would be impractical to require the boss to be attached only to the front face or bevelled ramp. The expression "digging edge" should not be interpreted so narrowly.


case_text: The respondents say there was a lack of fair basis in the present case because the specifications of the patents in suit do not provide real and reasonably clear disclosure of the invention. The relevant principles as to fair basis were set out in Lockwood Security Products Pty Limited v Doric Products Pty Limited [2004] HCA 58 ; (2004) 217 CLR 274 at 294ff. 89 I do not accept this submission of the respondents. For reasons given above, I consider the disclosure is not limited to a rigid lock which operates as a "shear" member. Rather, it includes a lock with an adjustment assembly which in fact operates in the way claimed. Accordingly, the specification provides a sufficient disclosure for the adjustment assembly in the terms of the claim. 90 I direct the parties to consult with a view to agreeing upon and sending to my Associate in chambers Short Minutes of Order giving effect to the above reasons. If the parties are unable to agree, they are to send to my Associate in chambers competing Short Minutes of Order with brief reasons.


case_outcome: considered

case_text: The issue of obviousness which arises in this case is whether a hypothetical person skilled in the relevant art in light of the common general knowledge as at 6 November 1995 would have regarded it as obvious, in the production of an improved wear assembly, to utilise a screw as a means of eliminating looseness in the wear assembly and thereby arrive at the claimed invention in Jones III: see s 7(2) of the Act ; Lockwood Security Products Pty Limited v Doric Products Pty Limited (No. 2) [2007] HCA 21 ; (2007) 235 ALR 202 at 231. When addressing this question, the Court must be careful not to substitute its own deduction or perception for that of the hypothetical person. Furthermore, as the High Court has stated on several occasions, "[a] scintilla of invention remains sufficient in Australian law to support the validity of a patent": see Lockwood 235 ALR at 217 and cases cited therein. 69 The applicants contend that the person skilled in the relevant art in this case is someone who works in the earthmoving industries who would be involved in the design and manufacture of wear assemblies and therefore would be familiar with factors relevant to their design and development. It is said by the applicants that Professor Wightley is not a person skilled in the relevant art because he had no experience in the design, operation or manufacture of wear assemblies attached specifically to excavators. 70 The respondents' contention is that only Professor Wightley and Messrs Meyers, Ashworth and McClanahan are persons skilled in the relevant art. It is said that Professor Wightley is a mechanical engineer with extensive experience in design and manufacture of replacement wear parts for use in the mining industry generally; Mr Meyers is a mechanical engineer with experience in the design, manufacture, sale and maintenance of replaceable wear parts for excavators; and Messrs Ashworth and McClanahan are relevantly skilled mechanical engineers. On the other hand, say the respondents, Mr Alden, the expert called by the applicants, is a structural engineer, which means he is not skilled in the relevant art. In addition, the respondents argue that the only witness called by the applicants on the issue of obviousness was Mr McClanahan (the co-inventor of the patents), and that the evidence called by the respondents in relation to this point was therefore not directly challenged by any qualified expert. 71 In my opinion, Professor Wightley and the other mechanical engineers whose evidence was adduced by the respondents have sufficient expertise to express the opinions as persons skilled in the art. However, for reasons given below, I do not accept Professor Wightley's evidence and the respondents' submission that the solution provided by the invention in Jones II and Jones III was obvious. 72 The applicants say that the invention in this case is an improved wear assembly which is constituted by the combination of elements set out in claims 1 and 51 of Jones II and claim 1 of Jones III. Each of these claims in suit, it is said, involves a combination of elements in a way that constitutes a new inventive thing, despite the fact that each of the elements (other than the lock adjustment assembly) was contained in the Toplok shroud, which the applicants' properly acknowledged formed part of the common general knowledge. In simpler terms, the new combination achieved by the patents in this case provided a new benefit beyond what had previously been provided, and was therefore inventive. 73 The applicants submit that the invention the subject of Jones II and Jones III was based on perceptions that: • the Toplok shroud provided a good foundation upon which to develop an improved wear assembly that could serve not only as a shroud but also as an adapter; • the forces to which an adapter may be exposed could produce looseness in mounting of the wear assembly to a Toplok style of mounting; and • this looseness could be overcome by an adjustment assembly that moved the relative positions of the bearing surfaces of the Toplok style lock so as to pull the wear assembly over the mount. 74 The applicants' argument is that the use of this type of adapter with a Toplok style of mounting was not part of the common general knowledge at the relevant date. Furthermore, the applicants say that, since there were at the relevant date many wear assemblies available to be used as the starting point to develop an improved assembly which overcame looseness between the wear member and the boss, the use of Toplok as the starting point was not required by any design principle, and was therefore not obvious. Indeed, as Professor Wightley acknowledged in cross-examination, even if an inventor were confined to the Toplok shroud as a starting point, there were several other locking methods known which may have been used instead of the method ultimately used in the invention. One such alternative method was the use of two piece pins, wedges and spools to take up any looseness in the wear assembly.


case_text: The dangers inherent in drawing conclusions with the benefit of hindsight have been emphasised in the authorities. As Aickin J pointed out in Meyers Taylor Pty Ltd v Vicarr Industries Ltd [1977] HCA 19 ; (1977) 137 CLR 228 at 242: '... subsequent analysis of an invention "the dissection of the invention" is not often helpful in resolving the question of obviousness. It has been criticized as being a mistaken approach, see Blanco White, Patents for Inventions , 4 th ed. (1974), at par.4-214. This matter was also discussed by Menzies J in Commonwealth Industrial Gases Ltd. v M.W.A. Holdings Pty. Ltd. where he commented on the undesirability of analysis by hindsight because once one sees an invention it may very often appear very simple and one may then wonder why no one previously had thought of so simple an improvement device.'


case_title: Populin v HB Nominees Pty Ltd (1982) 41 ALR 471


case_title: Stena Rederi Aktiebolag v Austral Ship Sales Pty Ltd (2007) 73 IPR 257


case_title: Technograph Printed Circuits Ltd v Mills-Rockley (Electronics) Ltd [1972] RPC 346


case_outcome: related

case_text: These reasons arise from an application by the applicants ("Brother") for an order for costs on an indemnity basis, having been substantially successful in proceedings against the respondent ("Dynamic Supplies") concerning infringement of trade marks and other matters: see Brother Industries, Ltd v Dynamic Supplies Pty Ltd (2007) 73 IPR 507. The application for indemnity costs relies not only on Dynamic Supplies' rejection of several offers of compromise made by Brother before the hearing but also on the manner in which the litigation was conducted by Dynamic Supplies. 2 Three offers of compromise were made by Brother to Dynamic Supplies before the hearing on trade mark infringement. The first and second offers were in virtually identical terms, so it is convenient and sufficient for the purposes of O 23 r 11(4) of the Federal Court Rules 1979 (Cth) simply to look at the first and third offers, which are substantially different, and compare them with the relief ultimately granted in the orders of the Court. O 23 r 11(4) provides that if an offer is made by an applicant and not accepted by a respondent, and the applicant obtains a judgment on the claim to which the offer relates which is not less favourable than the terms of the offer, then, unless the Court otherwise orders, the applicant is entitled to an order against the respondent for costs incurred in respect of the claim up to the day when the offer was made taxed on a party-party basis and after that day taxed on an indemnity basis. The objective of this provision is clearly to encourage settlement of litigation. 3 When considering the application of the above provision, the task of the Court is to consider the relevant offer of compromise, compare it with the orders actually made by the Court and determine whether the offer made is less favourable to the offeree than the final relief in the proceeding. If it is, then indemnity costs will not be awarded, subject to the discretion of the Court.


case_text: Under s 43(2) of the Federal Court Act 1976 (Cth), the Court has a discretion as to costs orders. As a general principle, costs are awarded on a party-party basis unless there are special or unusual circumstances. Some of the broad classes of circumstances in which the exercise of discretion to award indemnity costs may be appropriate are set out in the judgment of Sheppard J in Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 233-234. These include the undue prolongation of a case by groundless contentions, an imprudent refusal of an offer of compromise and the making of allegations which ought never to have been made. Another relevant consideration for the award of indemnity costs is where the applicant, properly advised, should have known that he or she had no chance of success: see Fountain Selected Meals (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401.


case_text: The authorities establish that, where an applicant's offer of compromise is not accepted by the respondent and the applicant subsequently obtains a more favourable result from the Court, an order for payment for costs on an indemnity basis does not automatically follow: see Dukemaster Pty Ltd v Bluehive Pty Limited [2003] FCAFC 1 at [7] . Where the requirements of O 23 r 11(4) are satisfied, the entitlement to an order for costs on an indemnity basis in respect of costs incurred after the date of the offer is subject to the discretion of the Court. When considering the exercise of this discretion, it is necessary to take into account whether it was imprudent or unreasonable to expect the offeree to accept the offer of compromise, having regard to the context and circumstances in which it was given: see Seven Network Ltd News Ltd [2007] FCA 1489 at [39] .


case_title: Fountain Selected Meals (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397


case_title: Seven Network Ltd News Ltd [2007] FCA 1489


case_text: Although not specifically addressed in the appellant's submissions for completeness I should express my view that, in relation to these photographs, the Tribunal did not come under an obligation under s 424A(1) because of the exemption in s 424A(3)(a). It is clear that the information in the photographs was 'not specifically about the applicant or another person' and, as Merkel and Hely JJ commented in Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572 at [138] : '... the reference in s 424A(3)(a) to the class of persons is not another criterion to be met but ... is designed to underline the specificity required by precluding any argument that reference to a class could be taken as a reference to all individuals (including for example, an applicant) falling within it.' In this regard see also VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 559 at [14].


case_text: As long as the information derived from the photographs was even part of the reason for the Tribunal's rejection of the appellant's application then a failure to comply with s 424A will amount to jurisdictional error; see SZEEU at [182] per Weinberg J and [215]-[216] per Allsop J. In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 McHugh J and Hayne J (with whom Kirby J agreed on this point) were quite clear that the bearing of a breach of procedural fairness on the ultimate decision is not relevant to the question of relief; see also Re Refugee Tribunal; ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at 109, [59] . The adverse inferences that the Tribunal drew about the appellant's credibility were central to its ultimate decision and it is not necessary for me to consider whether there is a discretion to refuse relief where there is a completely independent ground for the decision; see however M Izzo, "High Court on procedural fairness: SAAP and VEAL", (2006) 13 AJ Admin L 186.


case_text: The Federal Magistrate dismissed the appellant's claim that there had been a breach of s 424A because, in his Honour's view the use that the Tribunal made of these photographs that was only one of a number of factors that led the Tribunal to form an adverse view of the appellant's credibility. As pointed out in the appellant's written submissions his Honour's judgment was delivered before the judgment of the Full Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 and therefore it is not surprising that he failed to apply the principles identified by the majority of the Full Court in that case. 22 As long as the information derived from the photographs was even part of the reason for the Tribunal's rejection of the appellant's application then a failure to comply with s 424A will amount to jurisdictional error; see SZEEU at [182] per Weinberg J and [215]-[216] per Allsop J. In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 McHugh J and Hayne J (with whom Kirby J agreed on this point) were quite clear that the bearing of a breach of procedural fairness on the ultimate decision is not relevant to the question of relief; see also Re Refugee Tribunal; ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at 109, [59] . The adverse inferences that the Tribunal drew about the appellant's credibility were central to its ultimate decision and it is not necessary for me to consider whether there is a discretion to refuse relief where there is a completely independent ground for the decision; see however M Izzo, "High Court on procedural fairness: SAAP and VEAL", (2006) 13 AJ Admin L 186.


case_text: The meaning of 'information' in the context of ss 424 and 424A of the Migration Act was considered by the Full Federal Court in Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 ; (2001) 105 FCR 212. Win concerned the Tribunal's treatment of an anonymous letter containing allegations adverse to the appellant's credibility that was sent to the Department of Immigration and Multicultural Affairs. The Court found that the meaning of 'information' in s 424A was the same as that in s 424. The Court referred (at 217) to the Macquarie Dictionary's definition of the word 'information', which included 'Knowledge communicated or received concerning some fact or circumstance' (see also Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109 at [53] ). The definition in the Oxford English Dictionary , also referred to by the Full Court, included 'Knowledge communicated concerning some particular fact, subject or event; that of which one is apprised or told.' The Full Court considered that 'information', for the purpose of ss 424 and 424A encompassed 'assertions made by a person ... that particular aspects of an applicant's account of events are untrue'. It is clear that the Full Court's focus in Win was not upon the anonymous letter itself, but upon the assertions contained within the letter. This approach was followed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 where (at 477) Finn and Stone JJ also focused on what does not constitute information: 'The word does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps ...'


case_title: VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 559


case_title: Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 ; (2001) 105 FCR 212


case_text: Culley v Australian Securities and Investments Commission [2009] FCA 1208 , Mr Brian Culley brought an appeal to this Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). The Administrative Appeals Tribunal ("the Tribunal") had affirmed a decision of a delegate of the respondent ("ASIC") which prohibited Mr Culley from managing a corporation for a period of two years. The delegate's decision was made under s 206F of the Corporations Act 2001 (Cth) ("the Act"). Mr Culley appealed to this Court on six questions of law. The first four questions arose from matters dealt with in the Tribunal's reasons. Each was resolved adversely to Mr Culley. The fifth and sixth questions asked: "(5) Whether the statutory power of disqualification contained in s 206F of the Corporations Act is subject to an implied requirement that it be exercised within a reasonable time; and (6) Whether the respondent failed to exercise its statutory power of disqualification contained in s 206F of the Corporations Act within a reasonable time".