case_text: In Damberg v Damberg [2001] NSWCA 87 (2001) 52 NSWLR 492 at [148] [160], Heydon JA (as his Honour then was), with whom Spigelman CJ and Sheller JA agreed, engaged in a lengthy examination of the question whether, and to what extent, admissions or agreements between the parties could bind a court. At [148], Heydon JA identified the problem as being 'the extent to which the parties, by their conduct of proceedings, can prevent the court from deciding a case in accordance with the law or the facts.' At [149], his Honour acknowledged that the pleadings define the issues in a civil case, and that a party failing to plead a claim or defence will generally be unable to rely on it at a later time. His Honour then proceeded to discuss the various ways in which admissions of fact can be made: informal out-of-court admissions at [151]; formal admissions in answer to interrogatories at [152]; and formal admissions pursuant to rules of court at [153]. His Honour pointed out that each kind of admission can be contradicted by other evidence, or the court can choose not to act on the admissions. At [154], his Honour said: 'A party may admit allegations made in pleadings by the opposing party, and may do so either expressly or by non-traverse. The effect of such admissions is to narrow the issues in dispute: they can thus have the effect of restricting the evidence to be tendered and can prevent evidence being called to the contrary.' 45 Heydon JA then mentioned concessions by a solicitor before a trial or by counsel during a trial, or admissions ordered by a court as an alternative to filing evidence to the contrary within a specified time. His Honour also made reference to a statutory power permitting agreed statements of facts. At [155], his Honour said: 'There are significant limitations on the extent to which the use of the above facilities can compel a court to decide a case on a basis contrary to fact.' 47 In Symes v The Proprietors Strata Plan No 31731 [2003] NSWCA 7 at [45] , Heydon JA (with whom Sheller JA and McClellan J agreed) referred to Damberg , saying: 'It is true that there are cases where the courts are averse to pronouncing judgments on incorrect factual hypotheses, because to do so amounts to the giving of advisory opinions and to encouraging collusive litigation: see the cases discussed in Damberg v Damberg [2001] NSWCA 87 ; (2001) 52 NSWLR 492 at [148] - [160] . However, these perils do not exist here. It has not been demonstrated that the hypothesis that No 3 wall was common property is plainly incorrect. There is some evidence that it was incorrect; on this appeal evidence strongly pointing in the contrary direction has been filed. Courts commonly act on admissions in relation to matters of fact which might be disputed if the parties desired to do so, but which they have chosen to arrive at a compromise about.' 49 In my view, to confine the non-acceptance of admissions on the pleadings to circumstances in which their falsity has been established would be too stringent a rule. I recognise that it is important that a party whose allegations in the pleadings have been admitted ought to be entitled to rely upon those admissions. Too great a willingness to depart from those admissions would lead to the lengthening of trials and to uncertainty in the administration of justice, both of which are very undesirable. It seems to me, however, that Heydon JA's formulation of the test in Damberg is the appropriate one, namely that the Court can (and perhaps should) decline to act on admissions when there is 'reason to doubt their correctness', or 'reason to question the correctness of the facts admitted or agreed.' 50 In a case such as the present, there are particular public policy reasons for adopting this less stringent test. The size of this piece of litigation, and the expense of retaining solicitors and counsel to conduct a full-scale defence in a long trial, provide a powerful incentive to the making of admissions, in the hope of securing leniency. In a case in which admissions on the pleadings are made by parties who lack the resources to conduct lengthy litigation in their own defence, the Court should be more ready to put aside the admissions if they appear to be unreliable. Further, in a case such as this, allegations are made of the existence, and the giving effect to, of arrangements or understandings between various parties. There is no alleged arrangement or understanding the existence of which is admitted by both (or, in one instance, all three) parties to it. At best for the ACCC, one party to an alleged arrangement or understanding has admitted the existence, and the implementation, of that arrangement or understanding. The other alleged party (or, in one instance, two parties) to each such admitted arrangement or understanding has defended itself against the allegation. In those circumstances, if the applicant fails to prove against the non-admitting party (or parties) the existence of the arrangement or understanding, then there is a considerable risk that the processes of the Court will be brought into disrepute, if the Court should be required to find against the admitting party that the arrangement or understanding existed and was implemented, but finds in favour of the denying party (or parties) that it did not exist. Members of the public would have some difficulty in understanding how the Court, in a civil case, could reach such contradictory findings. Again, this provides a substantial reason for refusing to act on admissions on the pleadings if, in the light of the evidence, those admissions may be unreliable. 51 Another factor pertinent to a case such as the present is that an admission may amount to a concession as to a matter of law, or a conclusion on a matter of mixed fact and law. If the law is complex, or there is difficulty in determining on which side of an indistinct line the particular facts fall, it is necessary to be wary of accepting an admission conflicting with conclusions drawn on the evidence, and with the benefit of full submissions as to the law.


case_outcome: cited

case_text: The word 'arrangement' is less clearly understood, and more susceptible of elasticity as to its meaning. In general, it appears to connote a consensual dealing lacking some of the essential elements that would otherwise make it a contract. For instance, a dealing that would otherwise be a contract may be described as an 'arrangement' if the parties to it intended not to create a legally binding relationship, but only to give expression to their intentions as to the obligations that each felt morally bound to adhere to in relation to what was to pass between them, or to be carried out by them. Of course, an arrangement might be a broader concept than this, because it is a term the boundaries of which have not been fixed in the traditional understanding of lawyers. The Oxford English Dictionary gives as the apparently appropriate meaning of the word 'arrangement' 'a settlement of mutual relations or claims between parties; an adjustment of disputed or debatable matters; a settlement by agreement', or alternatively, 'disposition of measures for the accomplishment of a purpose; preparations for successful performance.' The ordinary understanding of what amounts to an 'arrangement' makes it difficult to envisage that an arrangement could come about without express negotiations between the parties, although there have been suggestions that an arrangement can be tacit. See Federal Commissioner of Taxation v Cooper Brookes (Wollongong) Pty Ltd (1979) 41 FLR 277 at 301 302 per Fisher J, with whom Brennan and Deane JJ agreed, referred to by Franki J in Trade Practices Commission v TNT Management Pty Ltd (1985) 6 FCR 1 at 24 in the context of s 45(2) of the Trade Practices Act . At the very least, there must be some express communication between the parties, although what is said may not amount to offer and acceptance for the purposes of the law of contract. The need for express communication is also suggested by the use of the verb 'make' in conjunction with both 'contract' and 'arrangement' in s 45(2)(a) of the Trade Practices Act . It is hard to see how two parties could 'make' an 'arrangement' without doing so expressly, at least as to the substance of the arrangement, even if the acceptance by one party of what the other has communicated is implicit in some act, rather than expressed in words.


case_outcome: discussed

case_text: In Federal Commissioner of Taxation v Lutovi Investments Pty Ltd [1978] HCA 55 ; (1978) 140 CLR 434, the High Court was dealing with the meaning of the word 'arrangement' in legislation other than the Trade Practices Act . In a passage that has often been cited in judgments dealing with arrangements or understandings under the Trade Practices Act , Gibbs and Mason JJ (with whom Murphy J agreed) said at 444: 'It is, however, necessary that an arrangement should be consensual, and that there should be some adoption of it. But in our view it is not essential that the parties are committed to it or are bound to support it. An arrangement may be informal as well as unenforceable and the parties may be free to withdraw from it or to act inconsistently with it, notwithstanding their adoption of it.' 34 This passage cannot be relied upon to suggest that an arrangement or understanding under s 45(2)(a) of the Trade Practices Act need have no substance at all. Plainly, it contemplates that there must be something of substance from which the parties can withdraw, or with which they can act inconsistently. By their 'adoption' of whatever matter of substance is part of the arrangement or understanding, the parties will necessarily have adopted a provision that they see as an appropriate way to regulate their future conduct. To say that they are able to withdraw from the adoption of such a provision, or to act inconsistently with it, is to say nothing more than that an arrangement or understanding is not enforceable in a court of law in the way that a contract is. The notion of an arrangement or understanding that each party will act as it sees fit on every occasion is entirely foreign to s 45 of the Trade Practices Act .


case_text: There is some authority, apparently not conclusive, as to the circumstances in which the discretion might be exercised. As long ago as Gramophone Co Ltd v Magazine Holder Co (1911) 28 RPC 221, the House of Lords recognised that there were circumstances in which a court should not be bound to accept admissions. At 225, Lord Loreburn LC (with whom the Earl of Halsbury, Lord Atkinson and Lord Shaw agreed) said: 'It is the duty of a Court to decide cases according to the truth and fact, not according to any assumed or artificial state of facts which the parties may find it convenient to present. No doubt Courts of Law allow and indeed encourage parties to simplify litigation by making admissions and to a certain extent by waiving their rights, because, when there is a real controversy depending upon real facts, everyone ought to facilitate its authoritative settlement. But that is a very different thing from allowing people to obtain an adjudication upon the footing that something exists or has happened which in truth does not exist, or has never happened. The objection to such a course is most striking when the parties agree to admit as true something which lies at the root of the jurisdiction, and any judgment obtained upon the footing of its truth may be used as a weapon in terrorem against persons not parties to the admission. A Court of Justice can never be bound to accept as true any fact, merely because it is admitted between the parties.' 46 At [157], Heydon JA pointed out that 'the court is not bound to act on admissions made by the parties or on states of fact agreed between the parties.' His Honour then cited the Gramophone Co case, quoting an extensive passage from the speech of Lord Loreburn LC, including the passage I have quoted at [43]. At [158] and [159], his Honour referred to two other English cases, Adams v Naylor [1946] AC 543 and Royster v Cavey [1947] KB 204, in both of which it had been held that crucial admissions on which the cases had been conducted at first instance should not be accepted, because they were contrary to fact. By way of conclusion, at [160], Heydon JA said: 'In short, the courts are averse to pronouncing judgments on hypotheses which are not correct. To do so is tantamount to giving advisory opinions and to encouraging collusive litigation. On the other hand, the courts will act on admissions of or agreements about matters of fact where there is no reason to doubt their correctness. But they are reluctant to do so where there is reason to question the correctness of the facts admitted or agreed.'


case_text: The word 'understanding' is obviously intended to connote a less precise dealing than either a contract or arrangement. This is so because of the meaning of the word 'understanding' itself, and because, in the terms of s 45(2)(a) , the parties to it may 'arrive at' it instead of making it. Once again, the Oxford English Dictionary supplies an appropriate definition: 'a mutual arrangement or agreement of an informal but more or less explicit nature.' It is the informal and less explicit nature of an understanding that led Smithers J to describe the concept of an understanding as 'broad and flexible' in L Grollo & Co Pty Ltd v Nu-Statt Decorating Pty Ltd (1978) 34 FLR 81 at 89. 29 Similarly, in Grollo at 89, Smithers J said as to an understanding that: 'It may arise merely where the minds of the parties are at one that a proposed transaction proceeds on the basis of the maintenance of a particular state of affairs or the adoption of a particular course of conduct'. 30 This view as to what is necessary for the formation of an understanding has been followed on many occasions. It is unnecessary to set out all of the authorities in which it has been referred to. I accept the correctness of what Smithers J said without hesitation. It is important, however, not to confuse what is required for the formation of an understanding within the meaning of s 45(2)(a) of the Trade Practices Act with what is required to be the content of an arrangement or understanding for the purposes of s 45(2)(a). Counsel for the ACCC were inclined to rely on authorities describing the formation of an understanding, when attempting to persuade the Court as to the required content. 31 Section 45(2)(a) of the Trade Practices Act , and the other provisions found in s 45 and s 45A , which are set out above, make a number of things very clear. To fall within s 45(2)(a) , an arrangement or understanding must be substantial enough to contain at least one 'provision'. The Oxford English Dictionary relevantly defines 'provision' as meaning: 'Each of the clauses or divisions of a legal or formal statement, or such a statement itself, providing for some particular matter; also, a clause in such a statement which makes an express stipulation or condition; a proviso.'


case_text: Some confirmation of this proposition is available from the authorities. On two occasions, the New South Wales Court of Criminal Appeal has said that s 87(1)(c) of the Evidence Act 1995 (NSW) (which is in the same form as s 87(1)(c) of the Evidence Act ) reproduces the pre-existing common law. See R v Macraild (unreported, NSW Court of Criminal Appeal, Sully, Dunford and Simpson JJ, 18 December 1997) at 9 and Watt v R [2000] NSWCCA 37 at [8] . The pre-existing common law is found in Tripodi v R [1961] HCA 22 ; (1961) 104 CLR 1 at 7 and Ahern v R [1988] HCA 39 ; (1988) 165 CLR 87 at 100. In both of these cases, the High Court of Australia made it clear that the statement by B could only be admissible against C if there were 'reasonable evidence' establishing the existence of the common purpose, apart from the statement itself. I do not necessarily accept, as the New South Wales Court of Criminal Appeals appears to have done, that the 'reasonable evidence' test is identical to the formulation 'reasonably open to find' preferred by the legislature. For present purposes, however, Macraild and Watt stand as authority for the proposition that, so far as they are consistent with the terms of s 87(1)(c) of the Evidence Act , Tripodi and Ahern are to be taken as providing authority on the proper construction of that provision. It follows that s 87(1)(c) must be applied on the basis that the admissibility of B's statement as against C can only be determined by reference to evidence other than the statement itself.


case_title: Royster v Cavey [1947] KB 204

case_text: At [157], Heydon JA pointed out that 'the court is not bound to act on admissions made by the parties or on states of fact agreed between the parties.' His Honour then cited the Gramophone Co case, quoting an extensive passage from the speech of Lord Loreburn LC, including the passage I have quoted at [43]. At [158] and [159], his Honour referred to two other English cases, Adams v Naylor [1946] AC 543 and Royster v Cavey [1947] KB 204, in both of which it had been held that crucial admissions on which the cases had been conducted at first instance should not be accepted, because they were contrary to fact. By way of conclusion, at [160], Heydon JA said: 'In short, the courts are averse to pronouncing judgments on hypotheses which are not correct. To do so is tantamount to giving advisory opinions and to encouraging collusive litigation. On the other hand, the courts will act on admissions of or agreements about matters of fact where there is no reason to doubt their correctness. But they are reluctant to do so where there is reason to question the correctness of the facts admitted or agreed.'


case_text: Counsel for the ACCC found it necessary to grapple with the use of the word 'commitment' in the judgment of the Full Court in Apco Service Stations Pty Ltd v Australian Competition and Consumer Commission [2005] FCAFC 161 (2005) ATPR 42-078 (' Apco Service Stations ') at [43] [47]. In that case, which concerned allegations that dealers in the Ballarat retail petrol market had been involved in an arrangement or understanding to fix the price of petrol, and which involved some of the parties to the present case, the trial judge had declined to make a finding that one dealer became committed to any price increase agreed on by the other dealers. In addition, his Honour had made a finding that the other dealers had no expectation that the uncommitted dealer's readiness to receive telephone calls about prices meant that the uncommitted dealer would substantially match those prices. The Full Court expressed the view that these findings led to the unavoidable conclusion that the uncommitted dealer was not a party to any understanding that it would fix its prices at the same level as the other dealers or at any particular level, or even that it would increase its prices at all. In expressing this view, at [45], the Full Court pointed out that the appellants in that case had not disputed that the trial judge had enunciated the correct legal principles. The trial judge had referred, and the Full Court also referred, to observations of Lindgren J in Australian Competition and Consumer Commission v CC (NSW) Pty Ltd [1999] FCA 954 (1999) 92 FCR 375 at [141] , which were specifically endorsed by a Full Court in Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 (2002) 118 FCR 236 at [79] . Lindgren J said: 'The cases require that at least one party "assume an obligation" or give an "assurance" or "undertaking" that it will act in a certain way. A mere expectation that as a matter of fact a party will act in a certain way is not enough, even if it has been engendered by that party. In the present case, for example, each individual who attended the Meeting may have expected that as a matter of fact the others would return to their respective offices by car, or, to express the matter differently, each may have been expected by the others to act in that way. Each may even have "aroused" that expectation by things he said at the Meeting. But these factual expectations do not found an "understanding" in the sense in which the word is used in ss 45 and 45A . The conjunction of the word "understanding" with the words "agreement" and "arrangement" and the nature of the provisions show that something more is required.'


case_text: In Symes v The Proprietors Strata Plan No 31731 [2003] NSWCA 7 at [45] , Heydon JA (with whom Sheller JA and McClellan J agreed) referred to Damberg , saying: 'It is true that there are cases where the courts are averse to pronouncing judgments on incorrect factual hypotheses, because to do so amounts to the giving of advisory opinions and to encouraging collusive litigation: see the cases discussed in Damberg v Damberg [2001] NSWCA 87 ; (2001) 52 NSWLR 492 at [148] - [160] . However, these perils do not exist here. It has not been demonstrated that the hypothesis that No 3 wall was common property is plainly incorrect. There is some evidence that it was incorrect; on this appeal evidence strongly pointing in the contrary direction has been filed. Courts commonly act on admissions in relation to matters of fact which might be disputed if the parties desired to do so, but which they have chosen to arrive at a compromise about.'


case_text: It is clear that the power given to the Court by O 18 r 4(1) of the Federal Court Rules to pronounce judgment based on the admissions of a party is discretionary. The use of the word 'may' in the rule itself indicates this. If authority be needed to make good the proposition that the power is discretionary, it is found in Termijtelen v Van Arkel [1974] 1 NSWLR 525 at 529 per Hope JA and at 534 535 per Bowen CJ in Eq. In that case, the Court of Appeal of New South Wales was examining three separate legislative grants of power to give judgment based on admissions arising from pleadings. Their Honours held that each of the three grants of power was a grant of discretionary power.


case_text: However broad and flexible an understanding might be, for the purposes of s 45(2)(a) of the Trade Practices Act it must be a consensual dealing between parties. Like an arrangement, it falls outside the sphere of contractual obligations of a kind normally enforceable in a court. Unlike an arrangement, it can be tacit, in the sense that it can be arrived at by each party, either by words or acts, signifying an intention to act in a particular way in relation to a matter of concern to another party. In order to be a consensual dealing, however, an understanding must involve a meeting of minds. In Top Performance Motors Pty Ltd v Ira Berk (Queensland) Pty Ltd (1975) 24 FLR 286 at 291, Smithers J (with whom Evatt J agreed) referred to what Diplock LJ said in British Basic Slag Ltd v Registrar of Restrictive Trading Agreements [1963] 2 All ER 807 at 819 in relation to English legislation in terms different from s 45(2) of the Trade Practices Act , and said: 'by parity of reasoning it would follow that the existence of an arrangement of the kind contemplated in s. 45 is conditional upon a meeting of the minds of the parties to the arrangement in which one of them is understood, by the other or others, and intends to be so understood, as undertaking, in the role of a reasonable and conscientious man, to regard himself as being in some degree under a duty, moral or legal, to conduct himself in some particular way, at any rate so long as the other party or parties conducted themselves in the way contemplated by the arrangement. It seems to me also that an understanding must involve the meeting of two or more minds. Where the minds of the parties are at one that a proposed transaction between them proceeds on the basis of the maintenance of a particular state of affairs or the adoption of a particular course of conduct, it would seem that there would be an understanding within the meaning of the Act.'


case_text: In Apco Service Stations at [46], the Full Court said that the trial judge's findings amounted to no more than what Lindgren J described as a 'factual expectation', falling short of an 'understanding'. The Full Court then referred at [47] to the judgment of Lockhart J in Trade Practices Commission v Email Ltd (1980) 31 ALR 53 as a practical illustration of the proposition that a mere hope or expectation that a party will act in a particular way is insufficient to constitute an 'understanding' for the purposes of s 45(2) of the Trade Practices Act . The Full Court pointed out that Lockhart J in Email held that, whilst sending price lists to a competitor assisted the competitor to follow the sender's prices if it chose to do so, and to do so more quickly than might otherwise be the case, in the absence of any commitment such communications were not sufficient to give rise to the meeting of minds essential to an arrangement or understanding. The Full Court held that the same principle was applicable in the Apco Service Stations case. Information conveyed by some dealers to the uncommitted dealer may have been useful to the uncommitted dealer in enabling him to have his franchisees check competitors' prices and know when to raise his own prices if he chose to do so, but the absence of any expectation that he would do so was fatal to the existence of any understanding. 39 As I have said, the concepts of contract, arrangement and understanding relevant to the application of s 45(2)(a) of the Trade Practices Act are concepts representing points on a spectrum of consensual dealings. It is possible that the spectrum might be extended in one direction beyond contract, to include even more solemnly binding consensual obligations, such as deeds under seal. It is difficult to see that the spectrum of consensual dealings could extend in the other direction beyond the concept of 'understanding', whilst still remaining relevant for the purposes of s 45(2)(a). That end of the spectrum, therefore, lies somewhere between the outer limits of what constitutes an 'understanding' and the closest form of non-consensual dealing that could be imagined. It is possible that this closest form is the expectation that a party will act in a particular way, engendered by that party, to which Lindgren J referred in CC (NSW) Pty Ltd at [141]. It may be in the realm of parallel conduct, even conscious parallel conduct, such as the adoption of identical prices for homogeneous products, which clearly lies beyond the realm of 'understanding'. See the American authorities cited by Lockhart J in Email at 56 57.


case_title: Trade Practices Commission v TNT Management Pty Ltd (1985) 6 FCR 1


case_title: Watt v R [2000] NSWCCA 37


case_text: As Isaacs J observed giving the judgment of the Court in Craine v Colonial and Mutual Life Fire Insurance Company Limited [1920] HCA 64 ; (1920) 28 CLR 305 at 326: '"Waiver" is a doctrine of some arbitrariness introduced by the law to prevent a man in certain circumstances from taking up two inconsistent positions (see per James L.J. in Pilcher v. Rawlins (7 Ch App 259, at pp. 268 et seqq)). It is a conclusion of law when the necessary facts are established. It looks, however, chiefly to the conduct and position of the person who is said to have waived, in order to see whether he has "approbated" so as to prevent him from "reprobating"--in English terms, whether he has elected to get some advantage to which he would not otherwise have been entitled, so as to deny to him a later election to the contrary (see per Lord Shaw in Pitman v. Crum Ewing ((1911) AC 217, at p. 239)). His knowledge is necessary, or he cannot be said to have approbated or elected.' 40 This, of course, is not a case of election per se but it is a case in which the appellant sought to get from the Tribunal the benefit of having his new migration agent act for him, apparently on the evidence, by instructing that agent to seek an adjournment. Such was Mr Sardar's request of 28 April 2003. 41 I think that if the appellant wants to rely on that request having been made for an adjournment, as having been one which the Tribunal should have taken notice of, he must accept that it was reasonable for the Tribunal in the circumstances to take Mr Sardar as being the person authorised to receive communications in response to that request, including a rejection and to leave it to him to communicate with the appellant about it. Therefore, in addition to the reasons that his Honour gave for rejecting the argument concerning the refusal of the adjournment for these additional reasons above, I would also refuse that ground of appeal. I hasten to add that I agree with his Honour's analysis and the analysis for rejecting that ground as an independent ground. 42 The appellant argued that the letter of 31 March 2003 was not signed by a person within the meaning of s 407 of the Act, being a Registrar of the Tribunal, a Deputy Registrar or other officer of the Tribunal. In my opinion this ground is without substance. The letter stated that there was a contact officer, Ms Flores, who I infer, pursuant to my powers under the Evidence Act 1995 (Cth) from the form of the document was authorised to send the document. It is a business record. It records accurately that Ms Flores was an officer of the Tribunal as it stated. She was the person who sent the document or on whose behalf it was sent. Therefore it was a document that emanated from an officer of the Tribunal. I reject the ground of appeal that asserts to the contrary. 43 Next it was argued that there was non-compliance with the statutory regime prescribed by Division 4, Part 7 of the Act in relation to the way in which the letter of 31 March 2003 notified the hearing. It is necessary to set out the relevant sections of the Act, namely ss 425, 425A, 426A and 427(1): S 425 ' Tribunal must invite applicant to appear (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it: or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it: or (c) subsection 424C(1) or (2) applies to the applicant. (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal. S 425A Notice of invitation to appear (1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear. (2) The notice must be given to the applicant: (a) except where paragraph (b) applies by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention by a method prescribed for the purposes of giving documents to such a person. (3) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period. (4) The notice must contain a statement of the effect of section 426A. S 426A Failure of applicant to appear before Tribunal (1) If the applicant: (a) is invited under section 425 to appear before the Tribunal; and (b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear; the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. (2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled. S 427 Powers of the Refugee Review Tribunal etc. (1) For the purpose of the review of a decision, the Tribunal may: (a) take evidence on oath or affirmation; or (b) adjourn the review from time to time; or (c) subject to sections 438 and 440, give information to the applicant and to the Secretary; or (d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.'


case_outcome: distinguished

case_text: Counsel for the appellant argued that what had been said by Gaudron and Gummow JJ in Re Refugee Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at 117 [82] - [83] was apposite and that I should have regard to the fact that in that case a 4-month delay was not seen as disqualifying the prosecutor from relief to which she would otherwise have been entitled after jurisdictional error had been established. 60 In my opinion the facts in that case are quite remote from the facts in the present case. In this case it seems to me that the delays, in the history that I have set out, are substantial. They have no substantive meritorious explanation that would weigh the exercise of my discretion to ignore them to allow points which might be argued in favour of the appellant, including an error I found under s 424A, and the possible constructional error of some nicety in relation to the notification provisions, to be addressed. Both the error in relation to s 424A and possible error to which I have adverted are not, in my opinion, an injustice sufficient to overcome the delay of the appellant in this case. 61 I can take into account in considering that there is substantial unexplained delay or inadequately explained delay after many applications to the Court as in this case, as a matter to affect the exercise of my discretion. However, I am not going to do that in this particular case. 62 In my opinion there is a public interest in finality of litigation. It is important that litigants know that Courts are here to administer justice fairly and impartially, but once their cases have been heard or the procedures of the law have been put in motion and the litigants have had adequate opportunity to appear and present their cases and do not take the opportunity up for reasons which are not substantial enough, it is wrong to put the other party or parties to further expense by allowing the litigation to proceed. 63 It seems to me that it would be quite unfair to the respondent Minister, in this case having been engaged now in the fifth separate application to the Court, that the appellant has made, bearing in mind there were applications that were disposed of by Stone J, Emmett J the High Court and the trial Judge below and now by me, to decide this case on new arguments which are presented on the appeal for the first time to suggest errors in what had happened when the matter was heard by the Tribunal in 2003. 64 I see no error in the way that his Honour would have exercised his discretion had there been a jurisdictional error. But for the reasons that I have given, I am of the opinion that no adequate explanation for the delay has been given and that the interests of justice would not be served having regard to the delays with or without any such explanation by granting prerogative relief. I would refuse to exercise my discretion even were I satisfied that there were an additional error, to the one I have identified, in the new argument about notification sought to be raised. 65 I do not think that this case is a proper vehicle in which those arguments should be raised. The appellant had the opportunity to put fully his case to the Tribunal, in writing, in his application for review. He did not do so. He had the opportunity to attend and give evidence to the Tribunal, albeit that there is some explanation for his not doing so, the fact is he did not give his account to the Tribunal in writing even after the scheduled but unattended hearing. Maybe that was a result of his being unrepresented; that will enable him to have his remedies against whoever gave him bad advice. 66 In my opinion, the consequences of that bad advice should not be visited in the circumstances of this case on the respondents. The explanations, such as they are, that have been given do not satisfy me that in the exercise of my discretion I should grant relief. In my opinion the appeal should be should be dismissed with costs. 67 The Minister has asked that I fix $5500 as the amount of the costs to which, in an order for costs, she would be entitled. I am of the opinion that that is a reasonable sum and it is appropriate, in the exercise of my discretion, that I do fix it. Accordingly the orders I make are the appeal is dismissed; the appellant is to pay the costs of the first respondent in the sum of $5500. I certify that the preceding sixty seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 19 May 2006 Counsel for the Appellant: P King with C Carter Counsel for the First and Second Respondents: T Reilly Solicitor for the First and Second Respondents: Sparke Helmore Date of Hearing: 20 April 2006 Date of Judgment: 20 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/587.html


case_text: In substance, what was asserted in the submissions considered by his Honour was that the invitation to a hearing in the letter of 31 March 2003 did not comply with the statutory requirements of the Act as it failed to give a prescribed notification period to the applicant. That ground has not been pressed, as I understood the argument today before me. Next the appellant submitted that the Tribunal had failed to give a prescribed notification period under s 425A(3) to him and therefore by reason of the decision of the High Court in SAAP v The Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 there was a jurisdictional error. 30 His Honour noted that the Minister's submissions pointed out that the contravention of s 425A(3) alleged then was that the appellant had got more than the prescribed statutory period of notice. His Honour then noted submissions on the merits that the applicant had made to him. His Honour considered and rejected the argument that there had been a non-compliance with s 424A in relation to the material in [36] of the Tribunal's reasons. However, I think that argument was well-founded and the trial judge erred in rejecting it. His Honour dismissed the argument on the basis that [36] was not 'integral' to the Tribunal's reasoning process. In my opinion, that is unlikely to be correct because of the way in which the Tribunal expressed its reasons. In [36], it stated that its earlier conclusion (that in light of the consideration that the material put forward by the applicant for review did not justify a finding that he was the subject of persecution for his political activities or that there was a real chance of him being persecuted if returned to India) was supported by the travel activities of the appellant which led to the final conclusions in [37] and [38]. 48 The appellant says that by failing to notify the appellant in the letter of 31 March 2003 of the effect of s 426(2) the Tribunal fell into the same kind of jurisdictional error as occurred in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162. It was said that one of the purposes of the requirement of giving notice was to ensure that the natural justice to which the appellant was entitled by force of s 422B(1) would be provided and any failure to adhere strictly to this code constituted a jurisdictional error. 56 I do not think there was any injustice whatsoever in the failure to tell the appellant of the travel matters, the subject of [36] of the Tribunal's reason. In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162, it was held that where jurisdictional error occurs, it is not a proper basis, in the exercise of discretion, to refuse relief because to do so would be in the opinion of the Court futile or that the case is so weak that it does not warrant appellate intervention. 57 However, the critical passages in that case, for present purposes are what the majority said about the issue of discretion in a case where, unlike that case, there had been delay or other circumstances which would actuate the exercise of the discretion. McHugh J said, 215 ALR 183-184 [80]: '[80] The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands. Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome.' 58 Hayne J, with whom Kirby J on this point expressly agreed 215 ALR 203 [174], said at 215 ALR 212 [211]: 'For the reasons given earlier the decision reached by the tribunal is invalid. There is no basis, in this case, on which the undoubted discretion to refuse relief sought should be exercised against its grant. There has been no suggestion of delay, waiver, acquiescence or other conduct of the appellant said to stand in their way.'


case_outcome: considered

case_text: I note that in [36] of the Tribunal's reasons there is material that was not submitted for the purposes of the review, within the meaning of the authorities, especially SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2. 16 Dissatisfied with this result, the appellant applied to this Court for judicial review by an application filed on 19 June 2003. The grounds for review in the application made to the Court on that occasion did not assert that the appellant had been aggrieved by the failure of the Tribunal to hear him give evidence. The grounds of review asserted, relevantly, that the Tribunal had affirmed the decision of the Department, the appellant was aggrieved by that; the Tribunal had failed to take into consideration the merits of the case; it had failed to act on proper principles of fairness and natural justice and it did not act in good faith to make the decision. 17 Grounds for those contentions were set out as being: the decision made by the Tribunal was an improper exercise of the powers conferred by the Act and the regulations and it involved an error of law, being an incorrect interpretation of the applicable laws and the incorrect application of the law to the facts. The application did not get any more specific than that. 31 In SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs , [2006] FCAFC 2 Allsop J at [233], with whom Weinberg J agreed at [155], said that if it could be shown that a reason given by the Tribunal for affirming the decision under review which failed to follow the procedure mandated by section 424A was entirely independent of another basis which did not fall foul of any jurisdictional error, the independent basis could support the decision under review notwithstanding the other jurisdictional error. 32 The appellant also argued to his Honour that he had not been given an opportunity to give evidence at the hearing before the Tribunal. His Honour concluded that it was open to the Tribunal to refuse the request for the adjournment that had been made by Mr Sardar and, inter alia, adopted the opinion expressed by McHugh and Heydon JJ in their reasons for refusing special leave which I have set out above.


case_outcome: followed

case_title: SZEYH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 93

case_text: An applicant for review is bound by the way in which his agent acts on his behalf even though the agent may do things that cause the applicant to be unaware of what is happening. As Jacobson J said in SZEYH v Minister of Immigration and Multicultural and Indigenous Affairs [2006] FCA 93 at [25] : 'In NADK of (2002) v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184 a Full Court dealt with a claim by an applicant that his migration agent did not notify him of the hearing. The Full Court concluded at [16] that " the asserted fact that the applicant was unaware of the Tribunal's hearing was of no legal relevance" .' 34 I do not see any error in what his Honour said. However, the appellant argued that because of the irregularity of what purported to be the appellant's signature on the form 956 sent in by Mr Sardar on 28 April 2006, the Tribunal ought to have realised that the appellant had not authorised Mr Sardar to receive communications and then in some way it should then have not merely communicated with Mr Sardar or perhaps not communicated with him at all but sought to communicate with the appellant. A number of hurdles appear to this argument. 35 The first involves the fact the appellant, on the material before the Court, namely that I have set out, appeared to authorise Mr Sardar to make the application. There is no evidence that his signature is a forgery. I accept the signature looks different. I have already dealt with an application to adduce further evidence on appeal and rejected it for reasons I gave earlier today. Accordingly, on the material before me, in the conduct of this appeal, there is no evidence that the signature, albeit that it was different to the ordinary signature appearing on other documents at least that the Tribunal had before it, would have, in the ordinary course, been looked at by the Tribunal as being or be thought by it to be anything other than regular. 36 Secondly, the appellant sought an adjournment from the Tribunal which was rejected. Communication of the rejection was made to the agent. If Mr Sardar, was unauthorised, to be the appellant's agent because the signature on the form 956 was a forgery or if the Tribunal had accepted the reasoning which I am asked to accept that a glance at the form 956 would have shown Mr Sardar had put forward a signature that could not be relied on as that of the appellant, then communications with him should have been of no moment to the Tribunal. The fact is Mr Jivani was previously notified of the hearing and had sent back, as recently as 17 April 2003, a form of response to an invitation to hearing indicating that the appellant knew of the hearing and wished to give evidence. Mr Jivani had not sought any adjournment. 37 A party is not entitled to blow hot and cold about a position such as that which is relied on here. What the appellant is seeking to do is approbate the application for an adjournment as being made on his behalf but reprobate its source, namely Mr Sardar. Albeit this is an application for judicial review, it is difficult to understand why a person in the position of the Tribunal, having received an application for adjournment apparently made on behalf of the appellant and having communicated the refusal of that application to the person who made it, should be bound to go behind that communication and communicate directly with the appellant in the circumstances of the notification of the application at about 4 o'clock in the afternoon before the hearing and its consideration and rejection early the next morning.


case_text: The Minister responded by arguing that in SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78 at [7] - [8] Bennett J had explained why a failure to comply strictly with a 14 day notification period when a rescheduling or adjournment occurred before an appellant had actually given evidence at a hearing was the exercise of power under s 427(1)(b) of the Act. Her Honour applied a remark of the Federal Magistrate in that case that it was clear that the Tribunal had seen itself as exercising its adjournment power in rescheduling when video conferencing facilities were not available due to technical difficulties on the day and at the time appointed for the hearing. 50 I think that the present facts are different in that the re-schedulings that have occurred in the history of the appellant's notifications all happened well before any hearing had been appointed, apart from the first which was done at his request on the day before the hearing. I am fortified in this view by the fact that the language of ss 425A and 426A use the expression 'scheduled and rescheduling' rather than the word 'adjourned' as in s 427(1)(b). 51 Bennett J did not, of course, have this argument before her when deciding the case to which I have just referred. In my opinion there is some substance in the argument, but I do not propose to decide it as I think it is appropriate to decide this matter on a different ground. I have already referred to the substantial delays which this matter has had in its progress. The appellant, for whatever reason, sought an adjournment without appearing before the Tribunal on 29 April 2003. I understand the argument that that occurred because his migration agent asked for an adjournment, it was refused and the appellant was not able to attend, whether because he was not told of the adjournment having been refused, or was unable to make it to the hearing that day for other reasons. 52 Then, when the matter first came before this Court, the appellant put forward material to Stone J seeking an adjournment which gave no basis in the medical certificate on which the Court could exercise its discretion and he left it to the Court to do as it might. Thereafter, the appellant delayed a period of over 10 months before filing an application seeking leave to appeal. No explanation is before the Court for that delay. 53 Once again it appears from the material accepted by his Honour in evidence, that an application was made to Emmett J on medical grounds that an adjournment should be had of that application. Once again that was refused. Then almost 3 months later, on 4 February 2005, an application for special leave to appeal was filed in the High Court and after that was refused another 2 months delay occurred before an application was filed before the Federal Magistrates Court. 54 Although the appellant asserts that he wants to give evidence to the Tribunal and did in fact accept its invitation to do so on two occasions by the responses sent in by Mr Jivani, there is nothing in the material before me to suggest any reason for the unexplained delays and the failure of the appellant to look after his own interests, particularly after the first unfortunate experience before the Tribunal of not having someone present when the hearing was set down. To then treat this Court, on two occasions, as not requiring him to attend, even when he had, accepting that he did have, some kind of medical problems, is, in my opinion, a substantial factor to be weighed in considering whether the time of the Court should be taken up by further applications or appeals. 55 I have taken into account that this is the first occasion on which the appellant has been legally represented and competently so, but the delays that had occurred up to the time at which the matter was heard by his Honour below were such that I can see no reason why, in the exercise of the discretion to grant prerogative relief under s 39B of the Judiciary Act 1903 (Cth), I should do so. The period of delay was not explained before his Honour beyond what was in the appeal papers. His Honour's independent reason for refusing to grant relief, albeit on the assumption contrary to what I have found, at least on the s 424A point, that there was a jurisdictional error, seems to me to be perfectly well warranted.


case_outcome: referred to

case_text: agree with both parties that, as the two limbs of rule 6(b) are separated by the disjunctive, 'or', the applicant only needed to show that the proposed premises satisfied one of the two limbs of rule 6(b). The Tribunal was in error on this point however as, for reasons given below, I have concluded that the Tribunal's ultimate conclusion was not affected by this error, nothing turns on it. The real issue in the appeal is the meaning of the phrase 'nearest other premises' which occurs in both rule 6(b)(i) and 6 (b)(ii). In particular, the issue was whether the phrase had the same or different meaning in each subrule. Despite a cogent argument put by Mr Zipser, counsel for the applicant, I have concluded that the meaning of the phrase is determined by the context of the subrule in which it occurs and for that reason 'nearest other premises' has a different meaning in each subrule. It would seem that the Minister's new determination yields a result consistent with the result that would flow from the applicant's interpretation but this does not seem to me to assist in the interpretation of the rules that apply to the current application. As indicated above, the rules under consideration here were implemented pursuant to the Third Community Pharmacy Agreement. The 2006 determination is made pursuant to the Fourth Community Pharmacy Agreement. The preamble to Part 4 of the Fourth Community Pharmacy Agreement notes that, in addition to correcting difficulties associated with the previous location rules, the amendments to the location rules contained in the agreement 'are intended to provide greater flexibility to respond to community need for pharmacy services and to improve access to pharmacy services'. In addition, the Fourth Community Pharmacy Agreement indicates several objectives of the Location Rules that are not evident in the Third Community Pharmacy Agreement for instance to ensure that 'all Australians have access to PBS medicines'. It seems clear that the Fourth Community Pharmacy Agreement has different objectives from the Third Agreement even if those objectives have evolved from those in the earlier Agreement. There is no basis on which to suggest that the later rules can be relied on to clarify the meaning of the earlier rules. In the circumstances the caution advocated by Gummow J in Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348 at 382 is well advised. The orders in this matter must be that the respondent's notice of contention is upheld, the application is dismissed and the applicant must bear the respondent's costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 28 September 2006 Counsel for the Applicant: B Zipser Solicitor for the Applicant: McCarthy Holzberger Counsel for the Respondent: R M Henderson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 27 June 2006 Date of Judgment: 28 September 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1289.html


case_text: respondent also referred to Murphy v Farmer [1988] HCA 31 ; (1988) 165 CLR 19 in connection with the weight that should be given to the principle referred to in [8]. In Murphy the appellant had submitted that there was a presumption that the word 'false' should mean the same thing in s 229 of the Customs Act 1901 (Cth) as it did in s 234 of that Act. The majority held (at 27): 'Plainly, there is some force in that argument. On the other hand, as Gibbs J. commented in Clyne v Deputy Commissioner of Taxation, the presumption that a word is used with a uniform meaning in a statute is not one "of very much weight... it all depends on the context". In the same case, Mason J. pointed out that the "presumption readily yields to the context".' (footnotes omitted) In the circumstances it is appropriate to consider the history of the rules and the policy that they were intended to promote.


case_outcome: approved

case_text: support of its construction of rule 6 the respondent referred to Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462 and a decision of Deputy President McMahon of the Administrative Appeal Tribunal in Re Levis and Australian Community Pharmacy Authority (1998) 51 ALD 757. Both of these cases were concerned with earlier versions of the rules than those presently under consideration. The rules considered by Branson J in the Pharmacy Guild case were made by a determination under s 99L of the Act on 2 May 1995 and were set out in her Honour's reasons at 465-466 as follows: '3. For the purposes of paragraph 99K(1)(b) of the Act, the rules with which the Authority must comply in making a recommendation on an application by a pharmacist for approval under s 90 of the Act in respect of particular premises are set out in paragraphs 4 to 9. 4. Approval of a pharmacist under section 90 of the Act in respect of particular premises must not be recommended except as provided for in paragraphs 5 to 8. ... 6 . ... approval of a pharmacist under section 90 of the Act in respect of particular premises must be recommended if the pharmacist is already approved under section 90 of the Act in respect of other premises from which the pharmacist proposes to cease supplying pharmaceutical benefits immediately before granting the approval if: ... (c) the premises in respect of which approval is sought are not less than two kilometres, measured door to door by the shortest lawful access route, from the nearest other premises in respect of which a pharmacist is approved under s 90 of the Act ... ' Branson J rejected the submission that these provisions required the decision maker to determine which were the 'nearest other premises' by a straight line measurement before establishing the measurement of the shortest lawful access route from those premises to the premises in respect of which approval was sought. Her Honour found no warrant for such an approach in the words of the provision and held that in relying on evidence as to which pharmacy in the vicinity of the proposed premises was the 'closest' the decision maker took into account an irrelevant consideration. Her Honour commented (at 478): 'The issue before it was not whether the Oyster Bay pharmacy was the closest relevant pharmacy to the [proposed premises] but whether the distance from the nearest other relevant premises measured door to door by the shortest lawful access route to the [proposed premises] was less than 2 kilometres. The provisions considered in Re Levis were not relevantly different and Deputy President McMahon relied upon the decision in the Pharmacy Guild case in reaching a similar conclusion. I respectfully accept that the context of the phrase 'nearest other premises' justified Branson J's conclusion in the Pharmacy Guild , and that this meaning might coherently be adopted in respect of the present provisions. However, the present provisions are different from those considered by Branson J and the significance of that difference must be examined. Whereas previously the relevant rules used only one criterion to test distance from the nearest other premises, rule 6, in 6(b)(i) and 6(b)(ii) respectively, uses both the straight line measurement and the lawful access measurement. Accordingly, there is a competing principle to the principle of contextual analysis applied by Branson J namely the 'sound rule of construction' referred to in [8] above. The issue is which of the two competing principles should prevail?


case_text: support of its construction of rule 6 the respondent referred to Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462 and a decision of Deputy President McMahon of the Administrative Appeal Tribunal in Re Levis and Australian Community Pharmacy Authority (1998) 51 ALD 757. Both of these cases were concerned with earlier versions of the rules than those presently under consideration. The provisions considered in Re Levis were not relevantly different and Deputy President McMahon relied upon the decision in the Pharmacy Guild case in reaching a similar conclusion.


case_text: I have reached the conclusion stated above, the starting point of my analysis (and the applicant's submissions) is the generally accepted principle that, unless there is a reason to conclude otherwise, such as an indication in the statute itself, 'it is a sound rule of construction to give the same meaning to the same words appearing in different parts of a statute'; Registrar of Titles (WA) v Franzon [1975] HCA 41 ; (1975) 132 CLR 611 at 618 per Mason J. If that principle were to be applied, the first step in the application of either subrule would be to identify the ' nearest other premises' in respect of which a pharmacist is approved under s 90 of the Act. On that basis the premises so identified would be the same whether one was applying subrule 6(b)(i) or 6(b)(ii). The Act does not say how one is to determine which other premises is the 'nearest' and therefore, subject to other indications to the contrary, one would give the word its ordinary English meaning. In the subrules under consideration 'nearest' is used in respect of proximity or distance; it is the superlative form of the adjective, 'near' which, according to the Oxford English Dictionary, means 'to, within or at a short distance' or 'close to a place, thing or person in respect of space or time'. The 'nearest' other premises are the 'closest' other premises or those which are the shortest distance away. The shortest distance between two places is colloquially referred to as being a 'beeline' or 'as the crow flies', meaning a direct route that has no obstacles and is roughly a straight line measurement. On this analysis, the nearest other premises to the proposed premises are not necessarily those that are the quickest to reach from the proposed premises. The statement that 'X pharmacy is the closest' (or nearest), but that it would be 'quicker to get to Y pharmacy' is immediately understandable as making that distinction.


case_text: background to these rules was explained by Hill J in Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287. His Honour referred to an agreement made in 1990 between the Government and the Pharmacy Guild of Australia which was intended to reduce the number of pharmacies approved to supply pharmaceutical benefits. His Honour continued at 294: '... the Government ultimately accepted recommendations made to it that pharmacy numbers should be reduced by encouraging pharmacists to either amalgamate or close to reduce the number of inefficient pharmacies and to strengthen the more viable pharmacies that remained. Provision was to be made for closure payments and, where an amalgamation or closure payment was made, no new approval in respect of the premises was to be granted unless certain approval criteria were met.' The subsequent development of this policy through two subsequent agreements and the change in emphasis from 'a preoccupation with concentration of pharmacies in a particular locality ... to a desire to introduce more competition between pharmacies' was referred to in the AAT decision under review. The Third Community Pharmacy Agreement, made in 2000, refers in clause 21(d) to a purpose in amending the rules governing pharmacy relocations as being "to enhance competition consistent with the maintenance of a viable and well distributed community pharmacy network". I do not accept that the applicant's interpretation interpolates into rule 6 an unarticulated criterion for determining which premises are the nearest. In my view the reasons for interpreting 'nearest other premises' as set out in [8]-[10] are coherent and acceptable subject to there being indications in the statute or otherwise that a different meaning was intended. In addition, I do not accept that the applicant's interpretation defeats the purpose of having the two subrules with their different modes of measurement. On the applicant's interpretation once the 'nearest' premises have been identified, if the straight line measurement is at least 1.5 kilometres then the application must be approved. If, however, that measurement is less than 1.5 kilometres then the distance from the proposed premises by lawful access measurement must be determined. If that distance is 2 kilometres or more then a positive recommendation must be made under rule 6(b)(ii). For instance, using a common example, assume pharmacy A is only 500 metres by straight line measurement from the proposed premises but is directly across a river so that the shortest means of lawful access is across a bridge some 3 kilometres downstream. In that example the criterion in subrule 6(b)(ii) would be met and a positive recommendation made even though subrule 6(b)(i) has not been met.


case_text: does not mean that the relevant person is to be a technician or person with only practical and non-academic qualifications. In fields such as chemistry, such a person can be a person or group with high level qualifications and a capacity for original research ( Aktiebolaget Hässle v Alphapharm Pty Ltd [2002] HCA 59 ; (2002) 212 CLR 411 , [30] and NSI Dental Pty Ltd v University of Melbourne [2006] FCA 1216 , [151]).


case_title: Austral Ships Pty Ltd v Stena Rederi Aktiebolag [2005] FCA 805 ; (2005) 66 IPR 420

case_text: the specification, including the claims, is not to be read in the abstract, but instead construed with common sense, in light of the common general knowledge in the art as at the priority date: Bennett J in Austal Ships Pty Ltd v Stena Rederi Aktiebolag [2005] FCA 805 ; (2005) 66 IPR 420 at [71] . Her Honour, in Sachtler GMBH & Co KG v RE Miller Pty Ltd ( [2005] FCA 788 ; 2005) 65 IPR 605 referred to the cases dealing with the principles for construing claims at [41], and at [42] set out in some detail the principles apposite to the construction of the claims in a patent. The Court is to place itself "in the position of some person acquainted with the surrounding circumstances as to the state of art and manufacture at the relevant time," and educate itself about the meaning of the technical terms: Kimberly-Clark Australia Pty Ltd v Arico Trading International Pty Ltd [2001] HCA 8 ; (2001) 207 CLR 1 , [24].


case_text: principles were summarised by Hely J in Flexible Steel Lacing Co v Beltreco Ltd [2000] FCA 890 ; (2001) 49 IPR 331 , where his Honour said at 350:


case_title: Flour Oxidising Co Ltd v Carr & Co Ltd (9108) 25 RPC 428

case_text: task of establishing lack of novelty by material that had been published earlier, was the subject of observations by Parker J in Flour Oxidising Co Ltd v Carr & Co Ltd (1908) 25 RPC 428 , who said at [457]: [W] here the question is solely a question of prior publication, it is not, in my opinion, enough to prove that an apparatus described in an earlier specification could have been used to produce this or that result. It must also be shown that the [prior] specification contains clear and unmistakable directions so to use it.


case_text: and Lindgren JJ discussed in Pfizer Overseas Pharmaceuticals v Eli Lilly & Co (2005) 68 IPR 1 what was required to establish lack of novelty, at [313]: 313 The law relating to novelty under the 1990 Act was considered by the Full Court in Bristol-Myers Squibb. In the joint judgment of Black CJ and Lehane J, their Honours referred to what had been said by Aickin J in Meyers Taylor Pty Ltd v Vicarr Industries Ltd [1977] HCA 19 ; (1977) 137 CLR 228 at 235; [1977] HCA 19 ; 13 ALR 605 at 611; [1977] HCA 19 ; 1A IPR 181 at 186: The basic test for anticipation or want of novelty is the same as that for infringement and generally one can properly ask oneself whether the alleged anticipation would, if the patent were valid, constitute an infringement. In the case of a paper anticipation such as a specification or publication, there can be no direct application of the reverse infringement test. An hypothetical infringement may be posited on the assumption that somebody does or makes what the alleged anticipation suggests. Their Honours cited Lord Westbury in Hill v Evans (at [63]): [63] ... the antecedent statement must be such that a person of ordinary knowledge of the subject would at once perceive, understand, and be able practically to apply the discovery without the necessity of making further experiments and gaining further information before the invention can be made useful. If something remains to be ascertained which is necessary for the useful application of the discovery, that affords sufficient room for another valid patent. Their Honours also referred to Flour Oxidizing Co Ltd v Carr & Co Ltd (1908) 25 RPC 428 ; Canadian General Electric Co at 104 and General Tire & Rubber Co v Firestone Tyre and Rubber Co Ltd (1971) 1A IPR 121; [1972] RPC 457. After reviewing those authorities, they said (at [67]): [67] What all those authorities contemplate, in our view, is that a prior publication, if it is to destroy novelty, must give a direction or make a recommendation or suggestion which will result, if the skilled reader follows it, in the claimed invention. A direction, recommendation or suggestion may often, of course, be implicit in what is described and commonly the only question may be whether the publication describes with sufficient clarity the claimed invention or, in the case of a combination, each integer of it. Their Honours at [317] referred to the observations of Crennan J in Imperial Chemicals Industries Pty Ltd v Cmr of Patents (2004) 213 ALR 399 ; 63 IPR 476 ; [2004] FCA 1658 , where her Honour there quoted Sachs LJ in General Tire & Rubber Co at [61]: [61] ... a signpost, however clear, upon the road to the patentee's invention will not suffice. The prior inventor must be clearly shown to have planted his flag at the precise destination before the patentee.


case_title: Imperial Chemicals Industries Pty Ltd v Cmr of Patents [2004] FCA 1658 ; (2004) 213 ALR 399

case_text: Honours at [317] referred to the observations of Crennan J in Imperial Chemicals Industries Pty Ltd v Cmr of Patents (2004) 213 ALR 399 ; 63 IPR 476 ; [2004] FCA 1658 , where her Honour there quoted Sachs LJ in General Tire & Rubber Co at [61]: [61] ... a signpost, however clear, upon the road to the patentee's invention will not suffice. The prior inventor must be clearly shown to have planted his flag at the precise destination before the patentee.


case_title: Kimberly-Clark Australia Pty Ltd v Arico Trading International Pty Ltd [2001] HCA 8 ; (2001) 207 CLR 1


case_text: person skilled in the art for the purposes of determining the scope of a patent's claims is a hypothetical, non-inventive worker in the relevant field of technology in Australia, who is equipped with the common general knowledge in the art ( Minnesota Mining and Manufacturing Co and 3M Australia Pty Ltd v Beiersdorf (Aust) Ltd [1980] HCA 9 ; (1980) 144 CLR 253).


case_title: NSI Dental Pty Ltd v University of Melbourne [2006] FCA 1216


case_title: N.V. Philips Gloeilampenfabrieken v Mirabella International Pty limited [1995] HCA 15 ; (1995) 183 CLR 655

case_text: N.V. Philips Gloeilampenfabrieken v Mirabella International Pty Limited [1995] HCA 15 ; (1995) 183 CLR 655 ( Philips ), the High Court (Brennan, Deane, and Toohey JJ with Dawson and McHugh JJ dissenting) held that the primary or threshold requirement of a patentable invention under s 18(1) of the Act was that it should be an alleged invention, meaning an alleged manner of new manufacture the subject of letters patent and grant of privilege within s 6 of the Statue of Monopolies 1623 (Imp). In the majority judgment at 663-6: The primary focus of inquiry should, as we have indicated, be upon the opening words ("... a patentable invention is an invention that ...") of that sub-section which impose a threshold requirement which must be satisfied before one reaches that contained in the body of par (a). The effect of those opening words of s 18(1) is that the primary or threshold requirement of a "patentable invention" is that it be an "invention". Read in the context of s 18(1) as a whole and the definition of "invention" in the Dictionary in Sch 1, that clearly means "an alleged invention" that is to say, an "alleged" "manner of new manufacture the subject of letters patent and grant of privilege within s 6 of the Statute of Monopolies... [W] hat is involved in an alleged manner of new manufacture, that threshold requirement of "an alleged invention" will, notwithstanding an assertion of "newness", remain unsatisfied if it is apparent on the face of the relevant specification that the subject matter of the claim is, by reason of absence of the necessary quality of inventiveness, not a manner of new manufacture for the purposes of the Statute of Monopolies. That does not mean that the threshold requirement of "an alleged invention" corresponds with or renders otiose the more specific requirements of novelty and inventive step (when compared with the prior art base) contained in s 18(1)(b). It simply means that, if it is apparent on the face of the specification that the quality of inventiveness necessary for there to be a proper subject of letters patent under the Statute of Monopolies is absent, one need go no further. ... The High Court in Philips dismissed an appeal from a majority of the Full Federal Court that the subject matter of the patent in suit as disclosed by the specification when read as a whole, was merely a new use of a particular known product. The respondents' cross-claim that the applicant's Patent is invalid on the grounds that it is not a patentable invention or a manner of manufacture with the meaning of s 18(1) of the Act is framed as follows: Not a patentable invention (section 181(1)) The alleged invention so far as claimed in each claim of the Patent is not a patentable invention within the meaning of the Act in that, so far as claimed in each and every claim, it does not satisfy the threshold requirement of 'an invention' and is not properly the subject of letters patent. Particulars (1) The Patent does not, on the face of the specification, disclose an invention. (2) The alleged invention amounts to no more than the incorporation of a 'guard member' to overlie a series of barrier elements for the purpose of guarding the barrier elements against collisions which the barrier elements are expected to incur in their usual operation. Mr Yates SC, counsel for the respondents, submitted that all that was claimed as the invention is, in fact, the use of a guard rail: All that's being provided is a guardrail to barriers for the purpose of protecting the barriers, including protecting the connection between barriers. So it is simply a guardrail for the barrier system, and that, we submit, is simply just another use of a known product for its known purpose, and for which its properties make it suitable.


case_text: and Lindgren JJ discussed in Pfizer Overseas Pharmaceuticals v Eli Lilly & Co (2005) 68 IPR 1 what was required to establish lack of novelty, at [313]: 313 The law relating to novelty under the 1990 Act was considered by the Full Court in Bristol-Myers Squibb. In the joint judgment of Black CJ and Lehane J, their Honours referred to what had been said by Aickin J in Meyers Taylor Pty Ltd v Vicarr Industries Ltd [1977] HCA 19 ; (1977) 137 CLR 228 at 235; [1977] HCA 19 ; 13 ALR 605 at 611; [1977] HCA 19 ; 1A IPR 181 at 186: The basic test for anticipation or want of novelty is the same as that for infringement and generally one can properly ask oneself whether the alleged anticipation would, if the patent were valid, constitute an infringement. In the case of a paper anticipation such as a specification or publication, there can be no direct application of the reverse infringement test. An hypothetical infringement may be posited on the assumption that somebody does or makes what the alleged anticipation suggests. Their Honours cited Lord Westbury in Hill v Evans (at [63]): [63] ... the antecedent statement must be such that a person of ordinary knowledge of the subject would at once perceive, understand, and be able practically to apply the discovery without the necessity of making further experiments and gaining further information before the invention can be made useful. If something remains to be ascertained which is necessary for the useful application of the discovery, that affords sufficient room for another valid patent. Their Honours also referred to Flour Oxidizing Co Ltd v Carr & Co Ltd (1908) 25 RPC 428 ; Canadian General Electric Co at 104 and General Tire & Rubber Co v Firestone Tyre and Rubber Co Ltd (1971) 1A IPR 121; [1972] RPC 457. After reviewing those authorities, they said (at [67]): [67] What all those authorities contemplate, in our view, is that a prior publication, if it is to destroy novelty, must give a direction or make a recommendation or suggestion which will result, if the skilled reader follows it, in the claimed invention. A direction, recommendation or suggestion may often, of course, be implicit in what is described and commonly the only question may be whether the publication describes with sufficient clarity the claimed invention or, in the case of a combination, each integer of it. Crennan J agreed with French and Lindgren JJ that Claim 10 of the Patent in Suit was invalid because it was invalid because it was obvious or disclosed no inventive step, and with the other findings of their Honour. Save the finding with respect to fair basis, Crennan J was of the view that Claim 10 was fairly based on the matter described in the specification. I turn then to consider the evidence concerning lack of novelty, in the light of the above exposition of principle. It is necessary to set out that evidence at some length. The Wasserstrom Patent is dated July 2, 1996. It is to be found in exhibit 2 at pages 39 to 49.


case_title: Ryan v Lum (1989) 14 IPR 513

case_text: seeking revocation of the patent, the respondent bears the onus of proof in establishing successfully a ground of invalidity ( Ryan v Lum (1989) 14 IPR 513 , 518-520). Section 138 of the Act relevantly provides: (1) Subject to subsection (1A), the Minister or any other person may apply to a prescribed court for an order revoking a patent. (1A) A person cannot apply for an order in respect of an innovation patent unless the patent has been certified. (2) At the hearing of the application, the respondent is entitled to begin and give evidence in support of the patent and, if the applicant gives evidence disputing the validity of the patent, the respondent is entitled to reply. (3) After hearing the application, the court may, by order, revoke the patent, either wholly or so far as it relates to a claim, on one or more of the following grounds, but on no other ground: (a) that the patentee is not entitled to the patent; (b) that the invention is not a patentable invention; (c) that the patentee has contravened a condition in the patent; (d) that the patent was obtained by fraud, false suggestion or misrepresentation; (e) that an amendment of the patent request or the complete specification was made or obtained by fraud, false suggestion or misrepresentation; (f) that the specification does not comply with subsection 40(2) or (3). Subsection 40(3) provides: (3) The claim or claims must be clear and succinct and fairly based on the matter described in the specification. Lack of novelty by reason of prior publication


case_title: Sachtler GMBH & Co KG v RE Miller Pty Ltd [2005] FCA 788 ; (2005) 65 IPR 605


case_text: a patent has been infringed rests on the proper interpretation of each claim, as it is these that define the width and precise scope of the alleged invention: Sartas No 1 Pty Ltd v Koukourou & Partners Pty Ltd [1994] FCA 1529 ; (1994) 30 IPR 479 , 485 per Gummow J.


case_text: One available inference is that he simply gave the Federal Magistrates Court proceedings no thought or consideration prior to November 2007. If an extension of time is sought, it remains a matter for the party seeking the extension to set forth a factual basis upon which the discretion may properly be exercised. Rules of court, particularly those relating to time, should never be allowed to become an " instrument of tyranny ": see Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27 at 30. But prima facie , they must be obeyed. The factual basis upon which Mr von Arnim is seeking an extension of time is, it is considered, not sufficient to justify an exercise of discretion in his favour. Even had an extension of time been granted, leave to appeal would also not have been granted. 14 The fact remains, however, that the trustee was given notice and no election was made within the 28 day period prescribed by s 60(3) of the Bankruptcy Act . 15 The orders of the Court are: 1. The proceedings be dismissed. 2. The Applicant to pay the Respondent's costs, including reserved costs, as agreed or taxed. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 7 April 2008 Counsel for the Applicant: The Applicant did not appear Solicitor for the Respondent: S Taleski (NV Lawyers) Date of Hearing: 7 April 2008 Date of Judgment: 7 April 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/472.html


case_text: act is unlawful within s 9 (1) if an act: • Involves a distinction, exclusion, restriction or preference. • That is based on race, colour, descent or national or ethnic origin; and • The existence of that racial distinction is the basis of the relevant act in the sense that the act occurred by reason of or by reference to the racial distinction. The inquiry is not one as to motive rather the inquiry is into whether the racial distinction is a material factor in the making of the relevant decision or the performing of the relevant act (Doyle CJ in Aboriginal Legal Rights Movement Inc v South Australia (No 1) (1995) 64 SASR 551 at 553).


case_text: an employer/employee relationship exists between parties is determined by the nature of their relationship and whether indicia of employment are evident. This issue has been the subject of much judicial comment. The leading Australian case on the topic is Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1 ; (1986) 160 CLR 16 per Mason J at 24 and Wilson and Dawson JJ at 36, recently considered by the Full Court of the Federal Court in ACT Visiting Medical Officers Association v Australian Industrial Relations Commission [2006] FCAFC 109 at [19-21] , where incidents of the employment relationship were identified as: • the measure of control that the putative employer is entitled to exercise over the worker • the mode of remuneration • the provision and maintenance of equipment • the obligation to work • the hours of work • the provision for holidays • the deduction of income tax • the delegation of work • the right to have a particular person do the work • the right to suspend or dismiss the person engaged • the right to the exclusive services of the person engaged • the right to dictate the place of work.


case_outcome: applied

case_text: is clear that superior courts of justice, including the Federal Court of Australia, have the power to control and supervise proceedings brought within their jurisdiction, including the power to stay proceedings which are an abuse of process (cf Jago v District Court (NSW) [1989] HCA 46 ; (1989) 168 CLR 23 per Mason CJ at 25, 28, Deane J at 58, Gaudron J at 74, 76; Williams v Spautz [1992] HCA 34 ; (1991-1992) 174 CLR 509 at 518 per Mason CJ, Dawson, Toohey and McHugh JJ; Walton v Gardiner [1992] HCA 12 ; (1992-1993) 177 CLR 378 at 393; Lord Diplock in Hunter v Chief Constable of the West Midlands Police (1982) AC 529 at 536; Miller v University of New South Wales [2003] FCAFC 180 at [77-81] ; and note the consideration of this issue by the majority of the High Court in Batistatos v Road Traffic Authority of New South Wales [2006] HCA 27 at [5-8] and by Kirby J at [121-128]). There was no suggestion at any stage of the case that the plaintiff had acted vexatiously, or that there had been an abuse of process in any sense other than that the defendants had been irretrievably prejudiced by reason of the delay in the commencement of the proceedings. The majority noted the application of s 52 Limitation Act 1969 (NSW) suspending the running of limitation periods for the duration of a person's disability. They noted also however: 'the "right" of the plaintiff with a common law claim to institute an action is not at large. It is subject to the operation of the whole of the applicable procedural and substantive law administered by the court, whose processes are enlivened in the particular circumstances. This includes the principles respecting abuse of process.' [[2006] HCA 27 at [65]] In concluding that there was no error of principle in the decision of the Court of Appeal, the majority of the High Court said: '... in the circumstance of the present case, attention must be directed to the burdensome effect upon the defendants of the situation that has arisen by lapse of time. The Court of Appeal held that this was so serious that a fair trial was not possible. The result was that to permit the plaintiff's case to proceed would clearly inflict unnecessary injustice upon the defendants. What Deane J said in Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32 ; (1988) 165 CLR 197 at 247, with respect to the staying of local proceedings, is applicable also to a case such as the present one. His Honour emphasised that there is no 'requirement that the continuance of the action would involve moral delinquency on the part of the plaintiff'; what was decisive was the objective effect of the continuation of the action. In assessing that effect there must be taken into account the consideration expressed by Dixon in Cox v Journeaux [No 2] [1935] HCA 48 ; (1935) 52 CLR 713 and set out earlier in these reasons. Bryson JA in terms did so. He went on to remark in that connection that the defendants had not shown that the plaintiff's action was "clearly without foundation". But, he concluded that there was "in practical terms nothing of utility to place in the balance against the defendants' claim for a permanent stay.' [[2006] HCA 27 at [69-71]]


case_title: Batistatos v Road Traffic Authority of New South Wales [2004] NSWSC 796

case_text: J at first instance rejected the submissions of the defendants in relation to ground (ii) that the plaintiff's claim was so obviously untenable that it could not possibly succeed or so manifestly faulty that it did not admit of argument ([2004] NSWSC 796 at [26]). Accordingly, his Honour declined to make an order summarily dismissing the plaintiff's claim. The conclusion of Hoeben J on this issue was endorsed by the NSW Court of Appeal ([2005] NSWCA 20 at [48]). That particular aspect of the decision of the Court of Appeal was not appealed to the High Court. Hoeben J noted that the defendants carried the onus in relation to the application, and that: 'It is not for the plaintiff to establish that a fair trial can be had but for the defendants to establish that their chances of having a fair trial are so low that to allow the proceedings to continue would be unjustifiably vexatious and oppressive to them .' [[2004] NSWSC 796 at [41]] His Honour was not satisfied however that the circumstances of the case were so exceptional that to allow the matter to proceed would be vexatious and oppressive to the defendants, and refused to permanently stay the plaintiff's claim either pursuant to Pt 13 r 5 or the inherent jurisdiction of the court. The defendants appealed this aspect of the decision to the Court of Appeal of New South Wales.


case_text: any event, the caution with which courts approach an application for a permanent stay of proceedings before them is also well-known. It has been described as an exercise of discretion by a court in only the most exceptional circumstances. As Dixon J said in Cox v Journeaux (No 2) [1935] HCA 48 ; (1935) 52 CLR 713 at 720: 'The inherent jurisdiction of the Court to stay an action as vexatious is to be exercised only when the action is clearly without foundation and when to allow it to proceed would impose a hardship upon the defendants which may be avoided without risk of injustice to the plaintiff. The principle, in general paramount, that a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed, must be observed. A litigant is entitled to submit for determination according to the due course of procedure a claim which he believes he can establish, although its foundation may in fact be slender. It is only when to permit it to proceed would amount to an abuse of jurisdiction, or would clearly inflict unnecessary injustice upon the opposite party that a suit should be stopped.' [see also Batistatos at 71, Jago at 31] In concluding that there was no error of principle in the decision of the Court of Appeal, the majority of the High Court said: '... in the circumstance of the present case, attention must be directed to the burdensome effect upon the defendants of the situation that has arisen by lapse of time. The Court of Appeal held that this was so serious that a fair trial was not possible. The result was that to permit the plaintiff's case to proceed would clearly inflict unnecessary injustice upon the defendants. What Deane J said in Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32 ; (1988) 165 CLR 197 at 247, with respect to the staying of local proceedings, is applicable also to a case such as the present one. His Honour emphasised that there is no 'requirement that the continuance of the action would involve moral delinquency on the part of the plaintiff'; what was decisive was the objective effect of the continuation of the action. In assessing that effect there must be taken into account the consideration expressed by Dixon in Cox v Journeaux [No 2] [1935] HCA 48 ; (1935) 52 CLR 713 and set out earlier in these reasons. Bryson JA in terms did so. He went on to remark in that connection that the defendants had not shown that the plaintiff's action was "clearly without foundation". But, he concluded that there was "in practical terms nothing of utility to place in the balance against the defendants' claim for a permanent stay.' [[2006] HCA 27 at [69-71]] Although as a general rule the applicants are entitled to bring their claims before the Court and have their claims heard, as I have already noted this entitlement is subject to principles in respect of abuse of court process. In reviewing the material before me however, I keep in mind the warning of Dixon J in Cox v Journeaux and approach the matter with caution. Key questions of evidence before the Court, for the purposes of this analysis, may be summarised as follows: 1. What is the likelihood of Mr Allan Hockey giving evidence? 2. To paraphrase Bryson JA in Batistatos , is there useful evidence available upon which to conduct a trial, or is the position that a trial of the proceedings could not rise above a debate about the effect of scraps of information with the result that no more than a formal enactment of the process of hearing and determining the plaintiff's claim could take place? This second question should be particularly considered in light of evidence to which the applicants refer, including: A) Records before the Court, as contained in the affidavit of Mr David Sutton sworn 22 November 2005, and the further evidence given by Mr Sutton arising from cross-examination on 17 July 2006. B) The affidavit of Mr Patrick Killoran sworn 12 May 2006. C) Affidavits of Sir Llewellyn Edwards, Hugh Lionel Fawsett and Sir Leo Arthur Hielscher. d) Queensland Government Cabinet documents from the relevant period. E) Affidavits of Bernadette Irene Albert, Evelyn May Barker, Shane Arthur O'Connor, Eric Michael Porter, Maxwell Athol Smith and Paul Toolis. It is clear that obtaining evidence from Mr Hockey would be very important to the conduct of this case from the perspective of both the applicants and the respondents. Mr Hockey was appointed Acting Superintendent of the Doomadgee Aboriginal Mission Reserve from 1 November 1958. I understand he remained in that management position until some time in 1983, and that he eventually left Doomadgee on 6 April 1983. His management role means that he would be able to give key evidence as to the role of the respondent in the conduct of the Doomadgee Mission over that period, and to explain relevant documents and records from that period. The importance of that evidence is enhanced by the fact that a number of key witnesses involved in the management of Doomadgee mission, and liaison between the Doomadgee Mission and the respondent during the relevant period have died (for example, Mrs Hockey and Mr Bedford), or are elderly, frail and unable to give evidence (for example, Mr Killoran). It is clear however that Mr Hockey himself is now elderly, and in frail health. At the hearing on 14 July 2006 the ability of Mr Allan Hockey to give evidence at a hearing of the substantive matter was in dispute. Counsel for the applicants indicated that he had spoken with a third party who had been in contact with acquaintances of Mr Hockey, and was able to provide evidence that Mr Hockey was capable of giving evidence relevant to the issues in dispute. I indicated that, if this were the case, the best evidence would be that from Mr Hockey himself. I adjourned the hearing to allow the parties the opportunity to contact Mr Hockey and ascertain his ability to give evidence, whether at the hearing itself, by a preservation of evidence hearing, by affidavit or otherwise.


case_text: the Court of Appeal of New South Wales pointed out ([2005] NSWCA 20 at [13]): • grounds (i) and (iii) were the same in substance, as there was no suggestion that the proceedings in Batistatos were an abuse of process other than because the defendants were irretrievably prejudiced by reason of the delay in the proceedings being brought; and • ground (ii) indicated reliance by the defendants on the power of the Court to summarily dispose of proceedings in Pt 13 r 5, the test for which was whether the case was so clearly untenable that it could not possibly succeed (Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; [1964] 112 CLR 125 at 129-130).


case_text: am not required at this stage to consider whether s 46PR HREOC Act would be of assistance to the applicants, or whether comments of the Full Court in Hagan v Trustees of the Toowoomba Sports Ground Trust (2001) FCA 123 at 20 would be relevant in relation to the evidence which the applicants would seek to elicit from Mr Hockey. However it is, in my opinion, important to consider realistically what evidence is before or likely to come before the Court. From the evidence of Dr Illes, it appears that even non-traditional questioning of Mr Hockey could be harmful to his health. On the facts before me I am of the view that Mr Hockey would not be able to give evidence in any form capable of being used by this Court, whether by affidavit, elicited by examination and cross-examination or otherwise as foreshadowed by Mr O'Gorman, or in person, by telephone or otherwise. The ability of Mr Hockey to give evidence could be critical in that he could potentially explain such documents as exist relating to the management and operations of Doomadgee Mission. He appears to be the only person living with an intimate knowledge of the management of Doomadgee Mission during the relevant period, or who has the first hand knowledge to be in a position to explain documents relating to management of the Mission during that time.


case_title: Herron v McGregor (1986) 6 NSWLR 246

case_text: delivering the lead judgment of the Court of Appeal, Bryson JA noted that, notwithstanding that the relevant limitation periods applicable to the plaintiff had not expired, it was nonetheless competent for the Court to entertain an application for a permanent stay on the proceedings due to effluxion of time ([2005] NSWCA 20 at 51-52, 57, citing McHugh JA in Herron v McGregor (1986) 6 NSWLR 246 at 253-255).


case_text: is clear that superior courts of justice, including the Federal Court of Australia, have the power to control and supervise proceedings brought within their jurisdiction, including the power to stay proceedings which are an abuse of process (cf Jago v District Court (NSW) [1989] HCA 46 ; (1989) 168 CLR 23 per Mason CJ at 25, 28, Deane J at 58, Gaudron J at 74, 76; Williams v Spautz [1992] HCA 34 ; (1991-1992) 174 CLR 509 at 518 per Mason CJ, Dawson, Toohey and McHugh JJ; Walton v Gardiner [1992] HCA 12 ; (1992-1993) 177 CLR 378 at 393; Lord Diplock in Hunter v Chief Constable of the West Midlands Police (1982) AC 529 at 536; Miller v University of New South Wales [2003] FCAFC 180 at [77-81] ; and note the consideration of this issue by the majority of the High Court in Batistatos v Road Traffic Authority of New South Wales [2006] HCA 27 at [5-8] and by Kirby J at [121-128]).