case_outcome: followed

case_text: ACI contended that, under the scheme created by Part XA of the Act, it is not appropriate to award compensation for non-pecuniary loss. It said that an award of that type has yet to be made. In response the Union referred to the judgment of Madgwick J in Australian Municipal Administrative Clerical Services Union v Greater Dandenong City Council (No 2) [2001] FCA 1076 at [10] where his Honour said, in the context of s 298U(e): "It must be borne in mind that conduct contravening Part XA may be of many different kinds and may occur in many different circumstances. The statutory phrase is aimed at giving the Court maximum power and flexibility [to] do what it thinks appropriate in the circumstances. Further, the phrase in section 298U(f); "any other consequential orders" in my opinion, refers to orders consequential upon any order of a kind falling within ... subs (b), (c) or (e)."


case_outcome: referred to

case_text: Further, as I noted in the first judgment published in this proceeding Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v ACI Operations Pty Ltd [2005] FCA 1662 at [76] , predecessor provisions limited the Court to an order for reimbursement of wages lost. "Compensation" is a broad concept which should not be interpreted in a narrow way. In an appropriate case the Court is able to order compensation for non-economic loss. There is nothing in the scheme of the Act to support the contrary view. I agree, with respect, with the views of Madgwick J as to the flexibility the Court possesses to, in effect, correct injustice by the ordering of compensation beyond the mere reimbursement of lost wages.


case_text: ACI submitted that if the Court held that it had the power to make an order for compensation which took into account non-economic loss it should be guided by the principles for the award of non-pecuniary loss which have been developed in unfair dismissal jurisprudence. It referred to the judgment of the Full Court of Industrial Relations Court of Australia in Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144 at 156 where the Court said: "There is an element of distress in every termination. To ensure compensation is confined within reasonable limits, restraint is required. But in this case there were unusual exacerbating circumstances that make it appropriate to include in the compensation an allowance for the distress unnecessarily caused to Ms Burazin. These circumstances include Ms Burazin having to suffer the humiliating experience of being escorted from Blacktown's premises by the police. Having regard to these circumstances, the compensation assessed by the trial judge should be increased by the sum of $2000, to $5,000." 6 ACI observed that the only evidence of non-economic loss before the Court was that contained in Mr Williams' affidavit of 14 October 2005 which referred to the financial stress occasioned by his termination. It said that there was no evidence about any "unusual exacerbating circumstances" associated with the manner of his termination. 7 The Union submitted that the passage in Burazin relied upon by ACI did not articulate a "benchmark test" but only stated why, on the facts before the Court, compensation for distress was appropriate. The Union contended that there is no warrant for limiting compensation for non-economic loss to situations which are "unusual and exacerbating." 8 The Union said that Mr Williams suffered an injury in two ways. First, it said that he was not permitted to leave his work premises in a dignified way but was pressed to leave the factory quickly with security summoned. Second, it said that Mr Williams' sudden unemployment caused him stress and tension as a result of his family losing the income of its sole breadwinner. 9 The Union conceded that Mr Williams gave no evidence about the impact of ACI's treatment on him on the day of his termination. It further accepts that some restraint is called for but contends that, in the circumstances, some compensatory order should be made. It also submitted that some compensation should be given to Mr Williams as a result of his affidavit evidence that his termination caused him shock and emotional strain and placed his relationship with his wife under pressure. 11 I make no order as to compensation in the circumstances of this case. To do otherwise would not be acting with restraint. In my view Burazin establishes that something more is required for compensation for non-economic loss than the usual element of distress which accompanies most terminations. Whilst "unusual and exacerbating circumstances" is not necessarily the yardstick, there must be something attending a termination which justifies an order for non-economic loss. Such an order may have been made in this case had Mr Williams given evidence of the effect on him of his ejection from his workplace by security personnel. Order There be no order as to compensation. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 24 February 2006 Counsel for the Applicant: Dr C Jessup QC with Mr S Moore Solicitor for the Applicant: CEPU Counsel for the Respondent: Mr F Parry SC with Mr C O'Grady Solicitor for the Respondent: Clayton Utz Completion of written submissions: 7 February 2006 Date of Judgment: 24 February 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/122.html


case_outcome: cited

case_title: Australian Securities and Investment Commission; In the Matter of Richstar Enterprises Pty Ltd v Carey (No 3) [2006] FCA 433

case_text: On 20 April 2006 orders were made, on the application of the Australian Securities and Investments Commission (ASIC), appointing receivers to the property of four individuals and four companies associated with the Westpoint Property and Finance Group Australian Securities and Investment Commission; In the matter of Richstar Enterprises Pty Ltd v Carey (No 3) [2006] FCA 433. By an interlocutory application filed in Court on 23 May 2006 in the same proceedings ASIC now applies for the appointment of receivers to a further Westpoint Company, Keypoint Developments Pty Ltd (ACN 115 507 232) (Keypoint). That company is named as ninth defendant. 2 The ASIC application is brought under s 1323 of the Corporations Act 2001 (Cth). Counsel for Keypoint indicated that it is not opposed. 3 Most of the affidavit evidence relevant to the appointment of receivers ordered on 20 April 2006 was also relied upon in the present application. The factual background disclosed by those affidavits is as set out in the earlier judgment and it is unnecessary to repeat it here.


case_text: The discretion of the Court to extend time is given for the purpose of enabling the court to do justice between the parties: WAAD v MIMIA [2002] FCAFC 399 at [7] , Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262; Gallo v Dawson [1990] HCA 30 ; (1990) 93 ALR 479 at 480. However, an extension of time within which to file an appeal will not be granted without a consideration of the putative appellant's prospects of successfully prosecuting his appeal: WAAD v Minister for Immigration & Multicultural & Indigenous Affairs at [9], Hughes at 264.


case_title: Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257


case_title: Joss v Scott (1986) 12 FCR 187

case_text: By Order 52 rule 15(2), the time limit may be extended 'for special reasons'. To justify an extension of time, there must be 'a special reason why the appeal should be permitted to proceed, though filed after the expiry date of 21 days:' Joss v Scott (1986) 12 FCR 187 at 195. In that case the expression 'special reasons' was characterised as 'an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served'.


case_text: The Tribunal's decision here is a privative clause decision, as defined by s 474(2) of the Act. Section 474 validly operates to prevent the judicial review of all decisions under the Act, except those vitiated by jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476. 24 By Order 52 rule 15(1) of the Federal Court Rules , the time limit for filing a notice of appeal is 21 days from the date of the judgment, which was given on 18 April 2007. Taking into account Order 3 rule 2(2), the notice of appeal was required to have been filed on or before 9 May 2007. The application for an extension of time was filed on 22 May 2007. This is a delay of 13 days.


case_outcome: applied

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


case_text: The decision of the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609, handed down between the hearing of this matter and the publication of these reasons, confirms the arguments of the respondents with respect to the medical certificates that the Tribunal considered had been forged and the application of s 424A. In that case, Gleeson CJ, Gummow, Callinan, Heydon and Crennan examined the operation of s 424A. Their Honours held at [18] that if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). 36 The inconsistencies referred to by their Honours in that case were those which existed between statutory declarations made by the appellants and oral evidence given at the hearing. Their Honours went on to say: [h]owever broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.


case_text: The respondent submitted that the appellant had overstated the duty imposed on the Tribunal by s 424A. In NATL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 112 , the Full Court held at [14] that "[t]he section does not require the provision of evidence. The test is whether an applicant is fairly informed of the information considered to be adverse: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396." (Emphasis added.) The respondent also relied on comments of Heerey and Allsop JJ in Paul [2001] FCA 1196 ; 113 FCR 396. The Tribunal' s 1 March 2006 letter clearly identified the information that the Tribunal considered would be, subject to the appellant's response, a reason for affirming the delegate's decision. The factual proposition referred to in the letter was clear: the Tribunal had received information that the appellant had changed money prior to his arrival in Sydney, whereas the appellant had stated that he learned of a danger in Pakistan from his family by telephone after he arrived in Sydney. According to the respondent, the letter also explained the relevance of the information: that the changing of money prior to his arrival suggested that the appellant planned to stay in Sydney before he spoke with his family and it was therefore not true that he decided to stay in Sydney due to fears arising from his conversations with his family.


case_text: The appellant submitted that this statement only applied to the statutory declaration and not to the contents of the protection visa application. He further submitted that it could not be taken to refer to the material which was provided during the course of the previous Tribunal matter, such as the document titled "Background". The appellant submitted that the general rule in this area is that, as Jacobson J said in NAZY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 357, s 424A(3)(b) may operate where there has been an express adoption of the material. Here, it was submitted, the only express written reference was to the statutory declaration attached to the protection visa application and perhaps, on a generous reading, the submissions in support of the visa application. The appellant submitted that the Federal Magistrate therefore erred by applying s 424A(3)(b) to material other than the statutory declaration. 24 The respondent submitted that there was no error in the Federal Magistrate's analysis of the treatment of the documents forwarded to the Tribunal by the appellant's lawyers (including the document titled "Background"). If those acting on behalf of an applicant send documents to the Tribunal, then the applicant has "given" the information for the purposes of s 424A(3)(b).


case_text: The respondent further submitted that any negative inference that the Tribunal may have drawn from information supplied by the appellant after the Tribunal hearing could not be considered "information" for the purposes of s 424A. Information in this context is "knowledge of relevant facts or circumstances communicated to, or received by, the Tribunal": SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at [205] , and not "the Tribunal's subjective appraisals, thought processes or determinations": SZEEU 150 FCR at [206]. Breach of s 424A regarding various items of "information" (i) The document titled "Background" 32 In the respondent's submission, the Tribunal's view about the authenticity of documents provided by the appellant is not knowledge of a fact or circumstance "communicated to, or received by, the Tribunal". Rather, it was an aspect of the Tribunal's subjective appraisal of the evidence. There is no requirement in s 424A that the Tribunal give the appellant written notice of such appraisals: SZEEU 150 FCR at [205]-[206]. 33 In any case, the documents themselves were given by the appellant for the purpose of the application for review. As such they fall within the s 424A(3)(b) exception. 34 No point was taken in reliance on s 425. With respect to all matters raised in this appeal I agree with the submissions of counsel for the respondent and, generally, with the reasons of the court below. 37 These comments would appear to be fatal to the arguments of the appellant in this case with respect to the medical certificates. The conclusion that the medical certificates may have been forged cannot be "information" for the purposes of s 424A , rather the medical certificates themselves and the handwriting are the "information". That the handwriting in the two reports appeared identical was, in the language of Allsop J in SZEEU [2006] FCAFC 2 ; 150 FCR 214, a "subjective appraisal" by the Tribunal leading, with other matters also appraised, to a "determination" that the reports were not "authentic". 38 For these reasons, all aspects of the appellant's appeal must fail. The appeal is dismissed with costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate: Dated: 24 January 2008 Counsel for the Appellant: Mr S E J Prince Counsel for the First Respondent: Mr Stephen Free Solicitor for the First Respondent: Sparke Helmore Date of Hearing: 22 February 2007 Date of Judgment: 24 January 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/6.html


case_text: The appellant submitted that, by selectively providing the information in the email, the Tribunal failed to ensure that the appellant was, in words taken from Paul v Minister for Immigration [2001] FCA 1196 ; (2001) 113 FCR 396 at 429, "fairly informed of information adverse to his or her case ... so that investigation may be made, and steps may be taken, somehow, if possible, to meet it." 20 As to the Tribunal's rejection of the genuineness of the two medical reports purportedly made by two different doctors, submissions were made to the Federal Magistrate by the appellant regarding a supposed failure to comply with s 424A on the basis that the information used by the Tribunal was not simply each of the two documents compared. The conclusion drawn from those documents, that the handwriting was identical, was the information which must be given to the appellant by virtue of s 424A(1)(b). His Honour rejected those submissions on the bases that either the "information" referred to was merely the Tribunal's thought processes rather than information, or because the information had been provided to the Tribunal by the appellant himself and so was excluded by operation of s 424A(3)(b). 21 The appellant submitted that the Federal Magistrate erred in his application of s 424A(3)(b) in relation to the medical certificates created by third parties and provided to the Tribunal by the appellant. 22 The appellant also alleged a further error in the application of s 424A(3)(b) on the basis that a submission given to the Tribunal by the appellant's agent was said to have adopted earlier material. Such adoption was held to apply to the statutory declaration that the appellant made for the purposes of the protection visa application, and all other documents provided by his advisors, together with the protection visa application and the application for review to the first Tribunal in 2003, including the document headed "Background". The foundation for holding that this material was information given by the applicant for the purposes of the review at hand was a statement by the appellant's agent in closing written submissions following the 2006 Tribunal hearing. The agent said [the appellant's] claims are set out in detail in the statutory declaration provided with his application to the Department of Immigration. A submission provided with this application contains additional information relating to his case. [The appellant] continues to rely on these submissions. 26 The respondent submitted that the appellant had overstated the duty imposed on the Tribunal by s 424A. In NATL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 112 , the Full Court held at [14] that "[t]he section does not require the provision of evidence. The test is whether an applicant is fairly informed of the information considered to be adverse: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396." (Emphasis added.) The respondent also relied on comments of Heerey and Allsop JJ in Paul [2001] FCA 1196 ; 113 FCR 396. The Tribunal' s 1 March 2006 letter clearly identified the information that the Tribunal considered would be, subject to the appellant's response, a reason for affirming the delegate's decision. The factual proposition referred to in the letter was clear: the Tribunal had received information that the appellant had changed money prior to his arrival in Sydney, whereas the appellant had stated that he learned of a danger in Pakistan from his family by telephone after he arrived in Sydney. According to the respondent, the letter also explained the relevance of the information: that the changing of money prior to his arrival suggested that the appellant planned to stay in Sydney before he spoke with his family and it was therefore not true that he decided to stay in Sydney due to fears arising from his conversations with his family.


case_text: The respondent accepted that the reference to "application" in section 424A(3)(b) means the application for review that is under consideration by the Tribunal: Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 at [17] . However, the respondent submitted that information which has previously been given for some other purpose, such as the original visa application, can become information given by the applicant for the purpose of the Tribunal application if the applicant expressly adopts that information as part of the application for review to the Tribunal: M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25] ; NBHH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1198 at [12] - [13] ; VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271 at [10] - [11] . In its reasons for decision the Tribunal referred to a statutory declaration, and accompanying submission, by the appellant that he had submitted with his primary visa application. The appellant's advisor had expressly adopted these earlier documents for the purposes of the application for review to the Tribunal in the submission received by the Tribunal on 7 March 2006. It followed that the information contained therein had been adopted and become information which the appellant "gave for the purpose of the application" for review and so fell within the exception in s 424A(3)(b). (iv) Failure to provide written notice of the Tribunal's view that documents provided by the appellant would be given no weight


case_title: M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131


case_title: NBHH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1198


case_title: VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271


case_text: may presently be assumed that O 62 r 11 has been properly invoked. Left to one side is a question as to whether the " preliminary decision " of the Deputy District Registrar, albeit a decision given effect by an order, is a " decision " within the meaning of r 11. Also left to one side is the question as to whether or not the Deputy District Registrar had power to make the decision that she did or to make the consequential order. Left unresolved is whether or not the Deputy District Registrar should have referred any question as to the validity of a retainer agreement to a Judge of this Court for resolution. That was the course which was said to be appropriate by the Family Court in Twigg v McIlwraith (1988) 89 FLR 473. As recognised by that Court, it was expected " [a]s a matter of commonsense as well as convenience to the litigants " that the question referred " be one of substance ". And it may further be assumed for present purposes that the " review " to be undertaken is a hearing de novo : Pacific Dunlop Ltd v Australian Rubber Gloves (unreported, FCA, Olney J, 17 August 1993); Boys v Australian Securities Commission [2001] FCA 1440 per Carr J. Whether such an assumption is correct, given the reservation expressed by Hely J in Cachia v Westpac Financial Services Ltd [2003] FCA 817 , need not be now resolved. See also: Miller v Wertheim [2004] FCA 988.


case_title: Cachia v Westpac Financial Services Ltd [2003] FCA 817


case_text: part of the dispute which presently manifests itself is an application by the Trustee to review a decision of a Deputy District Registrar of this Court. On 18 June 2009 Deputy District Registrar Cujes made orders that: 1. The full taxation proceed on the basis there exists a valid retainer agreement between the First Respondent (Mr Rickus) and his legal representatives for the purposes of the proceedings. 2. The First Respondent is granted leave, pursuant to Order 13 sub-rule 2(1) of the Federal Court Rules , to file and serve an amended bill of costs. Those orders were accompanied by a letter from the Deputy District Registrar also dated 18 June 2009 to the solicitors for both the Trustee and Mr Rickus. The letter recorded (in part) what the Deputy District Registrar referred to as her " preliminary oral decision ... in respect of ... the validity of " a written retainer as between Mr Rickus and his legal advisers. The letter helpfully recorded a finding that " the retainer between Mr Rickus and his lawyers was partly oral, partly written and/or partly to be implied by conduct ". Reference was made by the Deputy District Registrar to s 42 of the Legal Practitioners Act 1981 (SA) and to a decision of the Full Court of the Supreme Court of South Australia in Catto v Hampton Australia Ltd (In Liq) [2008] SASC 231. That decision was relied upon as authority for the proposition that " a successful litigant is entitled to recover from the other party amounts paid by the former in connection with the litigation, notwithstanding the unenforceability of any agreement between the litigant and solicitor... ". The letter concluded: I would continue to strongly urge the parties to attend a confidential conference or mediation with a view to, at the very least, narrowing and refining the issues in dispute, but hopefully reaching settlement on a commercial basis. The Trustee's application for review invokes O 62 r 11 of the Federal Court Rules which provides as follows: Every taxation of costs and every decision of a taxing officer shall be subject to review by a Judge. In summary form, the Trustee seeks to contend that: the Deputy District Registrar's decision is beyond power; and is, in any event wrong as a matter of law. Counsel for Mr Rickus contends that:


case_title: Miller v Wertheim [2004] FCA 988


case_text: litigation between the present parties has been ongoing for a considerable period of time. A number of judgments have already been given: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 1878 ; Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 2117 ; Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus (No 3) [2008] FCA 1986 , 69 ACSR 264 ; Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus (No 4) [2009] FCA 1085. The facts giving rise to the litigation need not be now repeated. At the comparative outset of the litigation, on 26 November 2007, orders were made that the Motor Trades Association of Australia Superannuation Fund Pty Ltd ("the Trustee") was to pay the costs of Mr Rickus " forthwith " and that such costs were to be paid on an indemnity basis: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 1878. It gives rise to a considerable degree of disquiet to learn that the making of those orders is still occasioning dispute between the parties.


case_text: litigation between the present parties has been ongoing for a considerable period of time. A number of judgments have already been given: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 1878 ; Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 2117 ; Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus (No 3) [2008] FCA 1986 , 69 ACSR 264 ; Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus (No 4) [2009] FCA 1085. The facts giving rise to the litigation need not be now repeated.


case_title: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus (No 3) [2008] FCA 1986 , 69 ACSR 264


case_title: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus (No 4) [2009] FCA 1085


case_title: Pacific Dunlop Ltd v Australian Rubber Gloves (unreported, FCA, Olney J, 17 August 1993)


case_title: Twigg v McIlwraith (1988) 89 FLR 473


case_outcome: considered

case_text: In the alternative, even if the information included information first given prior to the first Tribunal hearing, the conduct of the appellant was such that that information became information the appellant gave for the purpose of the application for review. I have reached that conclusion because of the submission put to the first Tribunal by the solicitors acting for the appellant. I have reached that conclusion without having to rely on the questions asked of the appellant at the second Tribunal hearing and his response to those questions. The authorities draw a distinction between information given for the purpose of the application for review and information elicited by the Tribunal during the course of a hearing. I have not attempted to express the distinction in precise terms and it seems to me to be a somewhat elusive one. Nevertheless, it is one that the authorities suggest must be drawn. It is said to be a distinction between information which the applicant for review puts forward as part of his or her case and adopts, on the one hand, and information elicited by questions from the Tribunal on the other. It is sufficient for me to refer to M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 ; NAZY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 357; SZCJY v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 556 and finally, VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851 ; (2006) 154 FCR 302 (' VWBF '). I would only add that, in relation to the relevant principles, I respectfully agree with the observation of Heerey J in VWBF as follows (at [48]): 'If this matter were free from authority, there would be much to be said for the view that the applicant "gave" information for the purpose of the Tribunal review application if the information was delivered to the Tribunal by the applicant, whether in answer to a question asked by the Tribunal or whether volunteered.'


case_title: NAZY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 357


case_text: The Tribunal has referred to the fact that in the period before the hearing before it the appellant did not claim that political affiliations were important. That may have been relevant to its assessment of the appellant's credit either on that particular topic, or more generally. The Tribunal did not say so in express terms. The fact that the information (assuming for the moment it is information) is used by the Tribunal in the assessment of an applicant's credit, either on a particular topic or generally, may be the reason or part of the reason for affirming the decision that is under review within the provisions of s 424A of the Act: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 (' SZEEU ') per Weinberg J at 252 [158] and Allsop J at 262-263 [220]-[221]. In other words, the obligation in s 424A(1) may apply even though the information does not of itself lead to a positive factual finding but is of significance only by way of demonstrating an inconsistency with other information provided on a different occasion. 20 In the case of a challenge on the basis that it is said that the Tribunal failed to comply with s 424(1) of the Act, it is necessary for the applicant to show that in fact the information was the reason or part of the reason the Tribunal affirmed the decision that is under review. That is sometimes a difficult question to determine and I agree with Weinberg J in SZEEU (at 253 [163]) that in cases of doubt, the matter should generally be resolved in favour of the applicant. In this case, the first respondent did not argue that the obligation did not arise because the information (again, assuming it is information) was not a reason or part of a reason the Tribunal affirmed the decision that is under review. I think that it was, and I refer to the passages set out in [15] and [16] above. 21 The question whether the matter relied upon by the Tribunal in this case was information for the purposes of s 424A of the Act is a difficult one. It is possible to characterise what the Tribunal relied upon as: 1. The contrast between the information given by the appellant prior to the second Tribunal hearing and the information given by the appellant at the second Tribunal hearing. 2. The failure to mention allegations in the information given by the appellant prior to the second Tribunal hearing. 3. The inference to be drawn from the contrast between the information given by the appellant prior to the second Tribunal hearing and the information given by the appellant to the second Tribunal hearing, namely, that the appellant may not be a witness of credit either on the particular topic concerned or generally. 22 Although I accept that the matter relied upon by the Tribunal may have had an important bearing upon its conclusions, I find it difficult to characterise the matter as 'information' within s 424A of the Act. It seems to me that the matter is no more than an inference which the Tribunal drew from the way in which material, which is no doubt information, was provided to it. A number of the difficulties which arise from the use of the word 'information' in s 424A of the Act are identified and discussed by Weinberg J in SZEEU . As to the difficulties raised by a case of the present nature, I refer to his Honour's observations at 255 [176]-[178]. 23 I am inclined to think that the matter relied on by the Tribunal was not information for the purposes of s 424A , but I do not need to decide the point because even if the matter was information within the section, it falls within the exception in s 424A(3)(b). 24 The obligation in s 424A(1) does not apply to information that the appellant gave for the purpose of the application for review (s 424A(3)(b)). It is clear from the authorities that the obligation does apply to information the appellant gave prior to the application for review. In my opinion, the exception applies to information the appellant gave not only to the second Tribunal hearing but also to the first Tribunal hearing. Such information was information that the appellant gave for the purposes of his application for review to the Tribunal. In my opinion, on a fair reading of the Tribunal's reasons the matter (assuming it to be information) was information the appellant gave at the first Tribunal hearing. I refer to the passages in the Tribunal's reasons set out above (at [14]). In those circumstances the obligation in s 424A(1) did not apply to the information.


case_title: SZCJY v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 556


case_title: VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851 ; (2006) 154 FCR 302


case_text: It will be apparent that in so approaching the matter, the wrong question was asked. The correct question was not whether the applicants should, as a matter of discretion, have a review of Registrar Hedge's order the correct question was what the outcome of that review should be. The orders made by me on 13 August 2008 have not been entered. It follows that there exists a power to recall those orders and reconsider the matter. This is because it is apparent that in dealing with the application I "erred in a material matter in [my] approach to the case": see Pittalis v Sherefettin [1986] QB 868 at 880 per Fox LJ; Autodesk Inc v Dyason (No 2) [1993] HCA 6 ; (1993) 176 CLR 300 at 302 per Mason CJ.


case_text: The correctness of that statement, albeit in a slightly different context, has been accepted by a Full Court of this Court on at least two occasions: see Martin v Commonwealth Bank of Australia (2005) 217 ALR 634 at 635-636 [6]-[7] per North, Mansfield and Katz JJ, and Mazukov v University of Tasmania [2004] FCAFC 159 at [22] - [24] per Kiefel, Weinberg and Stone JJ. It seems to me that that reading is also consistent with the reasoning in Harris v Caladine [1991] HCA 9 ; (1990) 172 CLR 84 at 95 per Mason CJ and Deane J, 124-125 per Dawson J, 151 per Gaudron J and 164 per McHugh J. The consequence is that whilst s 35A(6) appears to confer a discretionary power on the Court to order a review by use of the words "may", in fact, the applicants are entitled, by right, to a review. Thus, "may" in s 35A(6) means "must".


case_title: Martin v Commonwealth Bank of Australia (2001) 217 ALR 634


case_title: Mazukov v University of Tasmania [2004] FCAFC 159


case_text: In Jageev Pty Ltd v Deane (1997) 72 FCR 398 at 399, Davies J considered the nature of the power to review conferred by s 35A(6): Although many matters are sent for hearing in the first instance before a registrar, it is beyond the jurisdiction of this Court to arrange affairs so that the decision of the registrar is equivalent to a decision of a judge. That is a constitutional problem which of course does not face State courts. The result is that ... the Court must provide a rehearing on the merits of any matter which comes before a registrar and with which one of the parties to the proceedings before the registrar is dissatisfied.


case_title: Pittalis v Sherefettin [1986] QB 868


case_text: There was no dispute as to the principles that apply to the construction of a collective agreement such as the AMOU Agreement. Both parties referred to the observations of Madgwick J in Kucks v CSR Ltd (1996) 66 IR 182, at 184, quoted with approval by Kirby and Callinan JJ in separate judgments in Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10 ; (2005) 222 CLR 241 , at 270-271 [96], at 282-283 [129]-[130]: 'It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.'


case_text: The resolution of the question of construction posed by the competing submissions is not easy. The many provisions referred to in argument are not free from the ' apparent inconsistencies ', if not ' illogicality ', that often characterise collective agreements negotiated between employers and employees' organisations: cf City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426, at 440 [57], per French J. The difficulties of construction are compounded by the fact that the AMOU Agreement does not specifically (let alone unambiguously) address whether or not SFC needs the prior agreement of AMOU to introduce crew based rosters. 60 Of course there is nothing unusual in an agreement, even one drafted with the benefit of considered legal advice, not specifically addressing an issue that turns out to be critical to the resolution of a dispute between the parties to the agreement. In this case, however, the omission of any explicit reference to SFC's ability (or inability) to introduce unilaterally crew based rosters is surprising. After all, the AMOU Agreement 2004 extolled the virtues of ' Vessel Teams ' (an expression similar in meaning to ' crew based rosters ') (cl 25.2). Moreover, I infer that SFC has been well aware for a considerable period of the safety benefits it says will flow from crew based rosters. Yet the AMOU Agreement apparently leaves the issue to be determined on the basis of inferences to be drawn from provisions not specifically concerned with the introduction of crew based rosters. 61 In order to evaluate the competing arguments it is necessary to consider the terms of the AMOU Agreement in the light of the surrounding circumstances and in the context of the Agreement as a whole. There are a number of matters that require careful consideration. 62 First , there is no dispute that under the AMOU Agreement 2004, SFC could have unilaterally introduced a crew based roster system in place of the system it had inherited. As I have noted, the virtues of ' Vessel Teams ' were expressly identified in cl 25.2 of the AMOU Agreement 2004, which also recorded that ' [SFC] and Officers [were] committed to working towards having self-managed work groups '. Apart from a notice provision, the only apparent qualifications to SFC's power as an employer unilaterally to introduce crew based rosters were the requirements that the changes: • be for ' good and sufficient reason ' (cl 44.1); and • not be inconsistent with any other provisions of the AMOU Agreement 2004 (none of which appear to have imposed restrictions on the introduction of crew based rosters as such). 63 Secondly , despite apparently having the power to introduce crew based rosters during the currency of the AMOU Agreement 2004, SFC did not do so. The reasons for SFC's unwillingness or inability to introduce the rosters were not revealed by the evidence.


case_text: As this passage implies, the language used in a collective agreement must be understood in context. The context includes the entire document of which the relevant provisions form part but it extends to the industrial context which gave rise to the agreement: Amcor v CFMEU, at 246 [2], per Gleeson CJ and McHugh J; Short v F W Hercus Pty Ltd [1993] FCA 51 ; (1993) 40 FCR 511 , at 518, per Burchett J (with whom Drummond J agreed). The words of the award or agreement cannot be interpreted in a vacuum divorced from industrial realities. Nonetheless, the words should make sense according to the conventions of the English language: City of Wanneroo v Holmes (1989) 30 IR 362, at 378-379, 380, per French J.


case_title: Kucks v CSR Ltd (1996) 66 IR 182


case_title: Short v F W Hercus Pty Ltd [1993] FCA 51 ; (1993) 40 FCR 511


case_text: The first respondent (' AMOU ') represents the Masters and Inner Harbour Engineers (collectively ' Maritime Officers ') employed by SFC. AMOU is an organisation registered under the Workplace Relations Act 1996 (Cth) (' WR Act ') and has corporate status conferred by the WR Act. 4 The second-named second respondent (' SUA ') represents the General Purpose Hands (' GPHs ') employed by SFC. The SUA is an organisation registered under the Industrial Relations Act 1996 (NSW) (' NSW Act ') and is not registered under the WR Act. (The first-named second respondent (' MUA ') has been represented in the proceedings by the same solicitors and counsel as SUA and there is no need to refer further to it separately.) 5 The third respondent (' AIMPE '), an organisation registered under the WR Act, represents the Outer Harbour Engineers (' OHEs ') employed by SFC. 16 On the following day, 29 May 2008, SFC served an application on the respondents by which it sought orders from the Australian Industrial Relations Commission (' AIRC ') pursuant to s 496 of the WR Act , requiring actual or threatened industrial action to stop or not take place. Before that application could be heard by the AIRC, I granted AMOU and SUA what is commonly known as an anti-suit injunction. This restrained SFC, pending the determination of proceedings in this Court, from taking further action in the AIRC to obtain orders pursuant to s 496 of the WR Act : Sydney Ferries Corporation v Australian Maritime Officers Union [2008] FCA 817. However, I set an early date of 13 June 2008 for the hearing of SFC's claims for final relief in this Court. 17 SFC subsequently filed an amended application in this Court which eliminated its claims for injunctions and penalties against the respondents. The amended application confined SFC's claim to declaratory relief in relation to the proper construction of the three Enterprise Agreements. 18 At the commencement of the hearing on 13 June 2008 the parties handed up consent short minutes of order resolving the proceedings between SFC and SUA and between SFC and AIMPE. After being satisfied that I had power to do so, I duly made declarations in accordance with the short minutes of order.


case_text: undertaking as to damages in support of a stay is required when it is necessary to protect against a perceived risk of loss ( Doric Products Pty Ltd v Lockwood Security Products Pty Ltd (2002) 54 IPR 495 at [8]; Atlantis Corporation Pty Ltd v Schindler [1997] FCA 455). Pfizer submits that the matters raised by the Commonwealth, such as a generic manufacturer who relies on the Patents Register and declines to take steps to be ready to enter the market in April 2007, are speculative and not sufficient reason to require the undertaking.


case_title: Doric Products Pty Ltd v Lockwood Security Products Pty Ltd (2002) 54 IPR 495


case_text: validity of reg 10.7(7) was considered by Lindgren J in H Lundbeck A/S v Commissioner of Patents [2006] FCA 163 ; (2006) 150 FCR 269. His Honour held that reg 10.7(7) is not invalid. Pfizer makes a ' formal submission ' that reg 10.7(7) is invalid but limits its submissions to that contention. Pfizer relies upon the submissions presented by the applicant in Lundbeck as reflected in his Honour's reasons but does not repeat them or otherwise explain why reg 10.7(7) is invalid. It is accepted by all parties that, for the purposes of this appeal, I will follow the Lundbeck decision that reg 10.7(7) is valid, prior to any determination to the contrary by the Full Court. Section 70(3) provides that, as a condition for extension, goods containing at least one of the claimed pharmaceutical substances must be included in the Australian Register of Therapeutic Goods ('the ARTG') and the period beginning on the date of the patent and ending on ' the first regulatory approval date ' for the substance must be at least 5 years. Section 77 provides for the calculation of the term of extension by reference to the period beginning on the date of the Patent and ending on the earliest ' first regulatory approval date ' as defined in s 70, reduced by 5 years.


case_text: words ' first inclusion in [the ARTG]' themselves are neither ambiguous nor obscure (see [ 31 ] above). This is acknowledged by Pfizer's submission that uncertainty arises ' not so much from the terms of s 70(5) itself but from the nature of the ARTG '. Accordingly, s 15AB(1)(b)(i) has no application ( Newcastle City Council v GIO General Limited [1997] HCA 53 ; (1997) 191 CLR 85 at 112). Use of the extrinsic materials to confirm the ordinary meaning of the words does not assist Pfizer (s 15AB(1)(a)). Indeed, Pfizer did not rely on the extrinsic materials for this purpose. Section 15AB(1)(b)(ii) is also not applicable. The ordinary meaning conveyed by the words ' first inclusion in [the ARTG]', taking into account their context and the purpose or object underlying the Act, does not lead to a ' manifestly absurd ' or ' unreasonable ' result ([ 65 ] below). Pfizer submits that, independent of s 15AB of the Acts Interpretation Act , the extrinsic materials are part of the legal and historical context of the Act. For this reason, it submits that it is appropriate to consider the extrinsic materials at the outset to ascertain and give effect to the purpose of the Act, or ' the mischief which the statute was intended to cure ' ( Newcastle City Council at 99, 112-3). In Newcastle City Council , the relevant Law Reform Commission Report on insurance contracts made the legislative objective plain (at 102). In the present case, it is difficult to detect any clear legislative purpose or intention with respect to the relevant entry in the ARTG. Although Pfizer points to the use of the words ' marketing in Australia ', ' the Australian market ' and ' first registration as a therapeutic good ', the extrinsic materials also refer to the time available to ' exploit ' the invention, the period during which patentees can ' earn a return ' and ' first inclusion in [the ARTG]'. To the extent that the policy of the IP Amendment Act is discussed, the discussion is equivocal as to whether the intention was to grant an extension from the date of an approval enabling marketing in Australia rather than the date of approval for a more limited form of exploitation such as manufacture for export. This is not a case where a ' strained construction ' is necessary to give effect to the legislative purpose ( Newcastle City Council at 113). To the contrary, the extrinsic materials tend to confirm the clear, ordinary meaning of "first inclusion in the ARTG". Pfizer applies for an order that the Commissioner of Patents be restrained from amending the Patents Register to reflect the shorter extended term of the Pfizer patents ('the stay order'). The Commonwealth filed a motion on 16 November 2005 seeking to intervene in relation to the stay order. The Commonwealth submits that, unless Pfizer can establish that no person could potentially suffer damage by the stay in rectification of the Patents Register, an undertaking as to damages should be required before a stay is granted. The undertaking is only sought in respect of one of the Pfizer patents, Australian Patent No 540769 in respect of the product NORVASC. Such potential damage would include, but not be limited to, damage to generic pharmaceutical companies which may wish to market NORVASC and damage to the Commonwealth in respect of the costs of the Pharmaceutical Benefits Scheme.


case_text: Pharmaceuticals Pty Limited is an Australian pharmaceutical company with a commercial interest in the expiry date of at least one of the Pfizer patents. Spirit was joined as a respondent to this proceeding on 1 March 2006 ( Pfizer Corp v Commissioner of Patents (2006) 67 IPR 646). Spirit seeks to adduce evidence of Dr Walters, a person experienced in matters relating to the ARTG, to establish the regulatory requirements of Listed Goods and the extent to which a patentee with an export only listing can exploit a patent. The evidence is said to answer Pfizer's contention that there is no requirement to lodge extensive data in support of an application for inclusion in the ARTG as Listed Goods, which is a requirement for goods to be Registered Goods. Spirit also wishes to respond to any suggestion that an export only listing does not allow exploitation of the patent which compensates for regulatory and product development delays. Such evidence was tendered by Pfizer before the Commissioner and was referred to in the decision. Pfizer now contends that the issue is one of statutory construction to which this evidence is not relevant. Pfizer submits that all parties now accept that there can be different inclusions in the ARTG. Pfizer accepts that it is necessary to provide data in support of an application for Listed Goods and that an export only listing enables the patentee to exploit the invention, albeit on a less than "fully effective" basis. The point that Pfizer wishes to make is that the provision of data for Registered Goods is more onerous and extensive. This itself is said to result in regulatory delay before there can be marketing in Australia and full exploitation of the patent.


case_outcome: affirmed

case_title: Re Pfizer Corporation (2005) 67 IPR 201

case_text: Commissioner of Patents, by her delegate the Deputy Commissioner of Patents, decided that an amendment should be made to the Register of Patents ('the Patents Register') to correct the extension of term of four patents ('the Pfizer patents') in the name of the applicants (collectively 'Pfizer') ( Re Pfizer Corporation (2005) 67 IPR 201). This appeal by Pfizer from that decision raises two issues, which arise with respect to all four patents: • The validity of reg 10.7(7) of the Patents Regulations 1991 (Cth) ('the Patents Regulations '). • The date from which an extension of term of a pharmaceutical patent is calculated.


case_text: no particular theory or rule of statutory interpretation obviates the need for close attention to the text and structure of the provision in question ( Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58 ; (2005) 221 ALR 448 at [30] ), the extrinsic materials are part of the context of the Act and relevant in interpreting the meaning of ' first inclusion in [the ARTG]'. The extrinsic materials, for whatever reason, do not give any clear indication of how the IP Amendment Act took its final form. That makes it difficult, if not impossible, to fix upon the references to ' marketing approval in Australia ' and ' bend ' the language of the Act to meet that purpose ( Stevens at [34]). What is clear from the Response, which is given effect in the IP Amendment Act, is that the extension of term scheme was introduced in recognition of the need to compensate for the time before which a patentee of a pharmaceutical substance can exploit the invention. Pfizer's submission that the relevant approval must be one which allows marketing in Australia in order to give effect to the policy of the IP Amendment Act ignores the fact that inclusion in the ARTG as Listed Goods permits the patentee to exploit the patent. This may not extend to marketing in Australia but it does enable a commercial return to the patentee. The consequence that this is less than full exploitation of the product in Australia is not contrary to the policy of the Act or the purpose of an extension to extend the "effective life" of the patent. The patentee's decision to obtain an early export only listing and thereby a shorter extended term is its choice and may have sound commercial reasons.


case_text: concern is that, if the entry in the Patents Register is amended and Pfizer succeeds on any appeal, the Commissioner would have no power to re-amend the Register. Pfizer's concern arises because of potential problems once the Patents Register is rectified by amending the date of expiry of the patents to the earlier date. This was the subject of consideration by the Full Court in Woolworths Limited v BP plc [2006] FCAFC 52 ; (2006) 150 FCR 134 (' Woolworths No 1 ') and Woolworths Limited v BP plc [2006] FCAFC 132 ( 'Woolworths No 2 ') in the context of the Trade Marks Act 1995 (Cth). Sundberg and Bennett JJ in Woolworths No 1 at [52] and the Full Court in Woolworths No 2 at [149] were of the view that the Court has power to order the Register of Trade Marks to be rectified on appeal. No detailed submissions have been made as to the application of the Woolworths decisions in the context of the Act. Pfizer has not informed the Court whether it still seeks the stay order.


case_title: Woolworths Limited v BP plc [2006] FCAFC 52 ; (2006) 150 FCR 134


case_text: Applicants file an affidavit upon the receipt of the Settlement Sum in accordance with the Terms of Settlement and Further Terms of Settlement. Upon the filing of that affidavit, the Further Amended Application filed on 22 February 2008 be dismissed. In the principal proceeding, the application is brought by the applicants as a representative party on behalf of 102 group members although some of those group members represent more than one individual or corporation. By the Further Amended Application and the Further Amended Statement of Claim, the applicants claim relief said to arise out of conduct on the part of the respondent involving negligence; negligent misstatement; contraventions of ss 912A , 945A , 1012A and 1041H of the Corporations Act 2001 (Cth) (the " Corporations Act "); contraventions of s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) (the "ASIC Act"); and contraventions of s 851 of the Financial Services Reform Act 2001 (Cth), in connection with the investment by the group members as clients of the respondent, in four financial products issued by Westpoint Corporation Pty Ltd or entities related to that corporation. The financial products were promissory notes described as Market Street Mezzanine Finance Promissory Notes, Ann Street Mezzanine Finance Promissory Notes, Bayshore Mezzanine Finance Promissory Notes and York Street Mezzanine Finance Promissory Notes. The claims have been the subject of a mediation between the applicants and the respondents sponsored by the Australian Securities and Investments Commission. That mediation resulted in the parties entering into the Terms of Settlement document of 19 June 2009 and Further Terms of Settlement. Under the Terms of Settlement document of 19 June 2009 the parties agree to distribute a settlement fund of $5,976,426.00 in full satisfaction of the claims of the group members which would provide for a return of 62.5 cents in the dollar in respect of each claimant's investment. Ms Sue Youngsook Lee was inadvertently included within the claim group. She was not an investor in any of the above Westpoint products. By order, she was removed from the class of group members. The group members now consist of 101 group members. Total claims constitute $9,512,281.27. Consistent with the Further Terms of Settlement, having regard to the removal of Ms Lee's claim, an amount of $5,945,176.00 will be distributed to the group members. The rateable distribution of 62.5 cents will not alter. The applicants now seek the Court's approval pursuant to s 33V(1) of the Federal Court of Australia Act 1976 (the "Act") of the Terms of Settlement represented by the two Settlement Agreements. In considering that question, I have considered all of the affidavit material relied upon by the applicants in support of the sanction. I also considered the principles identified by Jacobson J in Taylor v Telstra Corporation Ltd [2007] FCA 2008 at [56] to [66]; the observations of Goldberg J in Williams v FAI Homes Security Pty Ltd (No. 4) (2001) 180 ALR 459; Darwalla Milling Co Pty Ltd v F Hoffmann-Laroche Ltd (No. 2) (2007) 236 ALR 322 per Jessup J; and Vernon v Village Life Ltd [2009] FCA 516. The nine factor test described by Goldberg J in Williams v FAI Homes Security Pty Ltd (No. 4) as "helpful in the Australian jurisdiction" derives from a nine factor test adopted by the United States Court of Appeals for the third circuit in Re General Motors Corp Pick-Up Truck Fuel Tank Products Liability Litigation 55 F3d 768 at 785. There is some debate in the authorities about the emphasis to be given to the nine factor test in applying the essential test the Court must address. However, the essential question is whether the settlement is fair and reasonable having regard to the claims made by the group members who will be bound by the settlement in the context of the facts pleaded; the prospects of success in the principal proceeding; the likelihood of group members obtaining judgment for an amount significantly in excess of the settlement distribution; the likely duration and cost of proceedings; and the weaknesses, substantial or procedural, in the case advanced by the group members and whether the settlement sum falls within a realistic range of likely outcomes. The Court will also have regard to the terms of any advice received by group members from counsel as well as any expert advice in relation to the issues raised by the proceeding. The Court will not second-guess the advice of the applicants' advisers. The Court takes the advice into account in determining whether the settlement is fair and reasonable, that is to say, whether the agreed settlement falls within the range of fair and reasonable likely outcomes, taking everything into account.


case_title: Williams v FAI Homes Security Pty Ltd (No. 4) (2001) 180 ALR 459


case_title: Darwalla Milling Co Pty Ltd v F Hoffmann-Laroche Ltd (No. 2) (2007) 236 ALR 322


case_title: Vernon v Village Life Ltd [2009] FCA 516


case_title: Re General Motors Corp Pick-Up Truck Fuel Tank Products Liability Litigation 55 F3d 768 at 785


case_text: Legal professional privilege is confined to professional communications made on a confidential basis for legal advice and services. The concept of legal privilege is founded on the special significance that the Court attaches to the informed resolution of disputes in the court system and the application of the law to those disputes. In consequence, the communications which arise from that professional relationship are given special significance: see, for instance, Baker v Campbell [1983] HCA 39 ; (1983) 153 CLR 52 at 128 for a discussion of the rationale underlying the privilege. In essence, the purpose of legal privilege is to facilitate the giving of advice in the conduct of adversarial litigation to ensure that there is open communication between clients and legal advisers. 12 I consider that Documents 10-14 inclusive are privileged for the above reasons. 13 Document 15 is an affidavit by a son of the bankrupt whose only involvement in the bankruptcy of his parents was that he filed an initial debtor's petition in the estate of his father, which was subsequently set aside. I consider the same principles apply to this document as to the preceding documents.


case_text: Moreover, notification of the Decision cannot be treated as a separate 'decision' from the Decision for the purposes of s 476 of the Migration Act : Chung v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 442. As Conti J said in Chung (at [19]): "For a decision-maker merely to communicate his or her decision to a person to be affected thereby, pursuant to his or her duty so to do, does not involve the making of a decision so to do within s 474(3) , particularly where the decision-maker is subject to a statutory obligation so to do, whether explicit or implicit." 13 This appeal was conducted by the parties on the basis that ss 494B and 494C of the Migration Act prescribed the methods by which the appellant was to be notified of the Decision. Sections 494B and 494C were inserted into the Migration Act by Schedule 3 to the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 (Cth). They took effect on 10 August 2001 and, as a matter of statutory construction, applied to the notification of the Decision by the Minister in 2005: Pearce DC and Geddes RS, Statutory Interpretation in Australia, 5 th ed, para [7.23]. 20 No appellable error has been identified. It is inappropriate for the Court to pre-empt a decision of the Tribunal as to whether it has jurisdiction. That is a question for the Tribunal: see Chung at [20]. 21 For those reasons, the appeal should be dismissed and the appellant should pay the respondent's costs of the appeal. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon. Associate: Dated: 6 August 2007 Counsel for the Appellant: Mr A Krohn Solicitor for the Appellant: Erskine Rodan & Associates Counsel for the Respondent: Mr W Mosley Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 6 August 2007 Date of Judgment: 6 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1162.html


case_text: The appellant was notified of the Decision some 8 years after the Decision was made. The appellant does not dispute he received notification in September 2005. Counsel for the appellant contended that the notification regime in the Migration Act is strict and peremptory and that the Minister failed to comply with ss 494B and 494C . He concedes the argument is technical. The Minister contends that the notification complied with ss 494B and 494C and referred the Court to the decision of Allsop J in Zhan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 327 at [49] . I adopt the reasoning of Allsop J in Zhan at [47]-[49]. In my view, the Federal Magistrate was correct to conclude that there was notification of the decision in 2005. The letter enclosing the decision was sent within three days of its date in the manner prescribed by ss 494B(4). The fact that it enclosed the Decision made some years earlier is unfortunate but does not render the notification invalid. As noted earlier, upon being notified of the Decision in September 2005, the appellant had a period of 28 days within which to seek a review of the Decision: s 412. He did not do so. 15 Finally, the Decision was and is a 'primary decision' within the meaning of that term in Division 2 of Part 8 of the Migration Act . Accordingly, the Federal Magistrates' Court had no jurisdiction in relation to the Decision: s 476 of the Migration Act . 16 The appeal should be dismissed on this ground alone.


case_text: Section 601EE(2) would not confer power on the Court to make an order creating substantive obligations. The true function of the subsection is as described by Keane JA, with whom the other members of the Queensland Court of Appeal agreed, in Mier v F N Management Pty Ltd [2006] 1 Qd R 339 at [15]-[16] as follows: 15. ... In Joye v Beach Petroleum NL (1996) 67 FCR 275 at 287, 290, the Full Court of the Federal Court approved the statement of McPherson SPJ in Re Crust 'N' Crumb Bakers (Wholesale) Pty Ltd [1992] 2 Qd.R. 76 at 78 that: Winding up is a process that consists of collecting the assets, realising and reducing them to money, dealing with proofs of creditors by admitting or rejecting them, and distributing the net proceeds, after providing for costs and expenses, to the persons entitled. 16. It follows, in my view, that where a statute makes reference, without more, to the "winding up" of an entity, it is referring to the application of a procedure containing these essential characteristics. It follows that s 601EE(2) must be read as empowering a court to make such orders as it considers appropriate in order to apply such a procedure to an unregistered managed investment scheme. It may also be accepted that the terms of the section allow for further orders to be made as needed so long as they are required for the "due conduct and completion of the winding up". The necessary corollary is that an order that could not reasonably be seen as advancing this procedure would not be authorised by s 601EE(2).


case_text: The "law of the Commonwealth" for the purposes of the possible application of s 109 is not the 2002 Order, but s 601EE(2), under which that order is said to have been made: P v P [1994] HCA 20 ; (1994) 181 CLR 583 ; see especially per McHugh J at 635: The inconsistency is between the federal law and the State law and not the order of the federal court and the State law. 20 For the reasons already stated, s 601EE(2) was not, and could not have been, a source of power of the 2002 Order insofar as it provided for the payment of the Liquidator's costs and remuneration by the Trust out of the Fund. That source was s 108(2)(a)(iii) of the Legal Profession Act 1993 , an Act of the Tasmanian Parliament dealing with the obligations of the Trust, an entity established under Tasmanian law. Section 109 has no application because no Commonwealth law is relevantly in a condition of possible inconsistency with a State law. 21 The Order governing the winding up should reflect the change in the Trust's obligations consequent upon the 2007 legislation, which is valid.


case_text: In Re GDK Financial Solutions Pty Ltd; Australian Securities and Investments Commission v GDK Financial Solutions Pty Ltd (2006) 236 ALR 699 at [43], Finkelstein J pointed out that the section does not confer substantive obligations. His Honour said: 43. ...I do not accept that the power conferred by s 601EE(2) is without restriction. In particular, I do not accept that the section permits the court to impose an otherwise nonexistent obligation on a person to provide information to a receiver appointed to wind up a managed investment scheme. It is a well established principle of statutory construction that, in the absence of clearly expressed language to the contrary, courts will presume that legislation is intended to leave individual rights intact. 15 Section 601EE(2) does not confer on this Court the power to impose a legally enforceable obligation to pay the remuneration and costs of a liquidator on persons who previously bore no such obligation. Once that truism is accepted, the form of the 2002 variation to the 2001 Order is perfectly understandable. After the Tasmanian Parliament had enacted s 108(2)(a)(iii) of the Legal Profession Act 1993 , it would have been confusing and misleading to leave the 2001 Order in its existing form. Viewed objectively in the light of the surrounding circumstances, the purpose of the variation was to make the Order show what the source of the Liquidator's remuneration was now to be, given the recent enactment of s 108(2)(a)(iii). 16 Subsequent variations to the 2001 Order in 2007 and 2008 do not affect this conclusion. The variation in 2007 simply provided procedures for detailing expenses which consisted of legal fees. It also provided a further avenue for review by the Court, additional to those contained in par 2(c)(i) and (ii) of the 2001 Order (which provided, in general terms, for ASIC, Piggott Wood & Baker, any investor in the scheme, or the Liquidator to apply to the Court for directions). The 2007 provision, par 2(c)(iii), for the Court's review is specifically directed to the District Registrar's review of the Liquidator's claim for costs and remuneration.


case_text: Mr Lang's notice of injury and compensation claim adequately disclose the nature of his claimed injury though they may be sparse on the circumstances giving rise to that injury. It is not necessary for me to speculate as to the reason for this as it is not directly relevant to the issue that I must decide. In Canute v Comcare [2006] HCA 47 ; (2006) 229 ALR 445 the High Court considered the concept of 'injury' under the SRC Act and said, at [10]: 'First, the Act does not oblige Comcare to pay compensation in respect of an employee's impairment; it is liable to pay compensation in respect of "the injury". Secondly, the term "injury" is not used in the Act in the sense of "workplace accident". The definition of injury is expressed in terms of the resultant effect of an incident or ailment upon the employee's body. Thirdly, the term "injury" is not used in a global sense to describe the general condition of the employee following an incident.' (emphasis added)


case_title: Comcare v Nichols (1999) FCA 209

case_text: Counsel for Mr Lang referred to Comcare v Nichols (1999) FCA 209 in which Heerey J applied Phillips v The Commonwealth of Australia [1964] HCA 22 ; (1964) 110 CLR 347 in the context of the SRC Act . In the latter case the High Court held, at 350: '... the application of the same principles may well mean that in some cases the onus of proving critical facts may rest upon the Commonwealth . Such a case would be where the Commissioner has purported to terminate an employee's right to compensation under an antecedently existing determination by reason of a material change of circumstances.'


case_text: Counsel for Mr Lang submitted that although the Tribunal identified the correct test for determining whether existing benefits may be cancelled, it failed to apply this test. The Tribunal referred to the decision in Commonwealth of Australia v Borg [1991] FCA 710 ; (1994) 20 AAR 299 at 370, where Jenkinson J said that a decision to cancel compensation should not be made unless the decision maker "was persuaded that one of the entitling circumstances had on or before" the date of the decision "ceased to exist". According to Mr Lang, however, the Tribunal failed to do this. 28 Despite this, however, it does not appear that in substance the Tribunal adopted a lesser standard than that mentioned in Borg . The Tribunal expressly accepted Dr Griffith's evidence that "in the absence of structural injury (of which there is no evidence) it is reasonable to expect that the aggravation would have resolved long before 29 November 2004." This finding, in conjunction with the reports of Dr Andrews and Dr Kitchin clearly formed the basis for the Tribunal's decision, rather than any paucity of evidence adduced by Mr Lang. Whilst the Tribunal ostensibly applied a 'balance of probabilities' standard, in light of the principle in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272, its finding in substance was that Comcare had discharged its evidentiary onus.


case_title: Frosch v Comcare [2004] FCA 1642

case_text: In support of its submission that 'the injury must be the injury as identified by the notice and claim', Comcare relied on Telstra Corporation Ltd v Hannaford [2006] FCAFC 87 and Frosch v Comcare [2004] FCA 1642. In Frosch at [8] , Whitlam J commented, with respect to similar requirements in s 53 of the SRC Act: 'the essential information to be imparted under s 53 will be the nature of an injury or ailment and its connection with the employment.' I do not take issue with these comments but in my view they do not support Comcare's case. 47 Mr Lang notified Comcare as to his injury and broadly outlined his view as to how this injury occurred; see [4]-[5] above. Although his description was somewhat incoherent in my view, it is sufficient to meet the test outlined in Frosch. Mr Lang's notice indicated the nature of his injury and its connection to his employment, and is consistent with the concept of injury to which the High Court referred. 48 Comcare's determination in 1984 that accepted liability for Mr Lang's injury made no mention of the circumstances in which the injury was incurred, save to say that it was in the course of Mr Lang's employment. Comcare described the injury as 'aggravation of a pre-existing condition of pain in mid thoracic region'. This is the same condition/symptom discussed in Dr Talbot's report. Comcare's liability was not restricted to a 'nature and conditions' claim made by Mr Lang. 49 Counsel for Comcare argued that the mere fact that Mr Lang's fall in 1981 coincided with the date of his claim does not mean that Mr Lang's compensable injury included injuries sustained in the fall. This, of course, is correct, however Mr Lang claims (with some support from the expert medical evidence) that this fall contributed to the injury that was notified and accepted as a compensable injury and that this injury is a continuing cause of incapacity.


case_text: Despite this, however, it does not appear that in substance the Tribunal adopted a lesser standard than that mentioned in Borg . The Tribunal expressly accepted Dr Griffith's evidence that "in the absence of structural injury (of which there is no evidence) it is reasonable to expect that the aggravation would have resolved long before 29 November 2004." This finding, in conjunction with the reports of Dr Andrews and Dr Kitchin clearly formed the basis for the Tribunal's decision, rather than any paucity of evidence adduced by Mr Lang. Whilst the Tribunal ostensibly applied a 'balance of probabilities' standard, in light of the principle in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272, its finding in substance was that Comcare had discharged its evidentiary onus.


case_text: Mr Lang's final ground of appeal concerned the Tribunal's failure to give its reasons in respect of several material facts, including (and this was the focus of Mr Lang's submissions) the failure to give reasons for its rejection of Dr Talbot's report as relevant evidence. The Tribunal is entitled to accept or reject the respective pieces of evidence before it, or to accord certain pieces of evidence different weight. It is under no obligation to refer to all of the evidence before it, particularly where, as here, neither party made submissions on it. It would have been open for the Tribunal to reject Dr Talbot's evidence or simply to prefer the evidence of Dr Griffiths. The Tribunal is, however, obliged by s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) to include in its reasons findings on all material questions of fact. As noted in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 331 per Gleeson CJ and at 345-6 per McHugh, Gummow and Hayne JJ, with respect to a similar requirement found in s 430 of the Migration Act 1958 (Cth), this is not an obligation to make a finding on every question of fact that is regarded as objectively material by a court conducting judicial review of the Tribunal's decision. 54 Even if the Tribunal excluded consideration of the 1981 fall at the directions hearing it still had an obligation to give reasons for rejecting evidence that was plainly central to Mr Lang's claim and crucial to a medical report that supported that claim. Mr Lang was entitled to seek review of that decision.


case_title: Phillips v The Commonwealth of Australia [1964] HCA 22 ; (1964) 110 CLR 347


case_text: If Comcare's submission about the directions hearing is incorrect, then plainly the Tribunal was required to indicate why it was that it preferred Dr Griffith's evidence. Given that the Tribunal had before it two medical reports that came to diametrically opposed conclusions it was obliged to explain why it either excluded one from its consideration or, if it considered both reports, why it preferred that of Dr Griffith. Its failure do so makes it impossible to understand the Tribunal's reasoning processes, and is itself an error of law; Telepacific Pty Limited v Commissioner of Taxation (2005) 218 ALR 85 at [54]. 56 For this reason Mr Lang's application must be allowed and the matter referred to the Tribunal for reconsideration according to law. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 6 February 2007 Counsel for the Applicant: D Richards Solicitor for the Applicant: Legal Aid (Australian Capital Territory) Counsel for the Respondent: L Walker Solicitor for the Respondent: Deacons Date of Hearing: 15 November 2006 & 21 December 2006 Date of Judgment: 6 February 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/47.html


case_text: In support of its submission that 'the injury must be the injury as identified by the notice and claim', Comcare relied on Telstra Corporation Ltd v Hannaford [2006] FCAFC 87 and Frosch v Comcare [2004] FCA 1642. In Frosch at [8] , Whitlam J commented, with respect to similar requirements in s 53 of the SRC Act: 'the essential information to be imparted under s 53 will be the nature of an injury or ailment and its connection with the employment.' I do not take issue with these comments but in my view they do not support Comcare's case.


case_text: Mr Lang's initial claim was determined in accordance with the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act). That Act has been superseded by the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) which commenced on 24 June 1988 and which governs the present application. Section 124 of the SRC Act provides that a person is only entitled to compensation under the Act for an injury sustained prior to its commencement if the person would have been entitled to compensation under the relevant preceding Act, in this case the 1971 Act. 11 The Tribunal provided a short summary of Mr Lang's medical history. It found that Mr Lang suffered from conditions which caused pain in the thoracic region of his spine prior to his alleged fall in 1981. The clinical notes of Mr Lang's general practitioners in the relevant period, Dr Reeve and Dr Herath, supported this finding. 12 The Tribunal also referred to a report of Dr Andrews, Consultant Neurologist, in August 1982 which indicated that any aggravation of Mr Lang's condition due to his work for the Commonwealth would have only lasted a short period of time (a few months) and to a report of Dr Kitchin that Mr Lang's complaint, in March 1983, was of thoracic degenerative disease. 43 Section 54 of the 1971 Act provides that no compensation is payable under the Act unless a claim in writing for the compensation was served, as prescribed, on the Commissioner within the relevant time. This provision is a procedural pre-requisite to an entitlement to compensation under the Act: see Ward v Military Rehabilitation and Compensation Commission [2007] FCA 7 at [25] in relation to a similar provision under the 1930 Act. 44 Comcare submitted that the 1981 fall had not been notified or claimed by Mr Lang and accordingly that liability for that injury had not been accepted by Comcare in 1984. Accordingly, the fall could not have been the subject of Comcare's determination in 2004 and therefore could not be relevant to the Tribunal's review. I accept that the Tribunal's enquiry was limited to a consideration of whether Mr Lang was, as at the date of the Tribunal's decision, entitled to compensation for the injury as claimed however it does not follow from this that any damage to Mr Lang's back that may have been caused by the 1981 fall was necessarily outside of this enquiry.


case_text: is a good deal of law on the circumstances in which the Court will inquire into, or examine, a judgment. The circumstances will vary according to the circumstances in which the judgment came to be entered. A Court will be far more inclined to inquire into and examine a judgment entered by default or consent, than it will in the case of a judgment entered after a contested trial on the merits followed by an appeal or perhaps even an unsuccessful application to set aside the judgment to the Court which entered it. Those are in effect the two ends of the spectrum. It has been said that, in the former case, a bona fide allegation that there was no pre-existing debt will be sufficient for the Court to inquire into or examine the judgment (see Corney v Brien [1951] HCA 31 ; (1951) 84 CLR 343 (" Corney v Brien ") at 357-358 per Fullagar J). It has been said that, in the latter case, the Court will not inquire into or examine a judgment unless there is evidence of fraud, collusion or a miscarriage of justice: Petrie v Redmond (1942) 13 ABC 44 at 48-49 per Latham CJ (with whom Rich and McTiernan JJ agreed); Corney v Brien at 356-357 per Fullagar J. The principles must be applied in a flexible fashion, having regard to the myriad of circumstances which may arise (see the discussion by J L Goldring in "Going Behind a Judgment" (1973) 47 ALJ 377).


case_outcome: discussed

case_text: letter refers to the applicant's husband, but it does not refer to the applicant. On the face of it, the letter does not refer to the applicant and cannot be defamatory of her. Furthermore, no facts which might identify her as a subject of the letter were identified. For this reason, the applicant has not shown a prima facie case or a case with a reasonable probability of success in relation to the first publication. In Ebert v The Union Trustee Company of Australia Ltd [1960] HCA 50 ; (1960) 104 CLR 346 , Dixon CJ, McTiernan and Windeyer JJ said (at 350): "Section 52 ( j ) makes it necessary that a debtor served with a bankruptcy notice, if he does not comply with its requirements, should satisfy the Court of Bankruptcy that he has a counter-claim, set-off or cross demand which equals or exceeds the amount of the judgment debt. The debtor clearly must satisfy the Court that there exists in him a counter-claim, set-off or cross demand. 'Cross demand' is the word relied upon here. The appellant cannot satisfy the Court that a cross demand exists by showing no more than that she propounds one and states how she suggests that she can make it out. In Re Duncan ; Ex parte Modlin Street J. said that the debtor need not satisfy the Court that there are reasonable grounds for believing that he will establish his cross action, but only that he has a bona fide claim which he is fairly entitled to litigate. This perhaps is expressed too favourably to the debtor. In Re A Debtor Roxburgh J. said: 'But not every demand will suffice. A demand made in bad faith would not be good enough. The debtor must satisfy the Court that he has a genuine demand. ... But in my opinion a demand must be more than bona fide: the Court must be satisfied that it has a reasonable probability of success'. Perhaps the standard may be expressed by saying that the debtor must show that he has a prima facie case, even if then and there he does not adduce the admissible evidence which would make out a prima facie case before a court trying the issues that are involved in his counter-claim, set-off or cross demand." (Citations omitted.) Had my conclusion on the first point been otherwise, it would have been necessary to consider a number of alternative arguments advanced by the respondent. I will identify these arguments. In the case of two of these alternative arguments, they are alternative reasons for the conclusion that the applicant does not have a cross demand within the provisions of the Act with respect to the first publication. First, the respondent submitted that the applicant does not "have" a cross demand at the present time. It is accepted by the applicant that the limitation period under the Limitation of Actions Act 1936 (SA) (" Limitation of Actions Act ") has expired and did so in December 2004 (that is, after six years). The applicant relies on her ability to seek an extension of time under s 48 of the Limitation of Actions Act . The respondent contends that the effect of the Limitation of Actions Act is to exclude liability or bar a right of action and, in those circumstances, the applicant does not have a cross demand even though she may apply for an extension of time under s 48. I do not propose to decide this point. I do not need to decide the point and I have not had the benefit of submissions on both sides of the issue.


case_text: bankruptcy notice issued by the respondent claims that the applicant owes him the sum of $71,654.83 by reason of a final judgment entered by the Supreme Court of New South Wales. On 16 October 2007, the Supreme Court of New South Wales entered a judgment in favour of the respondent against the applicant in the sum of $60,000, together with interest, calculated at the rate of 2 per cent per annum from 21 November 1999 in the sum of $8,728.80. The amount of interest claimed in the bankruptcy notice is $11,654.83. The respondent's action which resulted in the judgment was a claim against the applicant and her husband for damages for defamation. An appeal by the applicant and her husband against the judgments entered against them was dismissed by the Court of Appeal of New South Wales: Goyan v Motyka [2008] Aust Torts Reports p81-939. The applicant's husband is Mr Michael Goyan. He was also served with a bankruptcy notice, wherein the respondent claimed that he was indebted to the respondent in the sum of $71,654.83. As I have said, he also was sued for defamation by the respondent in the same action in the Supreme Court of New South Wales. Mr Goyan issued an application against the respondent in the Federal Magistrates Court of Australia on 29 April 2008, seeking the same orders as are sought by the applicant in this proceeding. The proceedings by the applicant and her husband have been dealt with together and, for the most part, the same documents have been filed in each proceeding. As will be seen, on the day listed for the hearing of the applications, the applicant's husband consented to an order that his application be dismissed. The history of the proceeding The circumstances of the defamation action in New South Wales are set out in the reasons for judgment of Tobias JA in Goyan v Motyka [2008] Aust Torts Reports p81-939. Giles JA agreed with Tobias JA, as did Handley AJA, although Handley AJA added some brief additional comments. Tobias JA described the background to the action in the following way (at 61,370-61,372 [2]-[19]): "On 1 May 2000 the respondents, Dr Wolodymyr Motyka (Dr Motyka) and his mother-in-law Mrs Edvokia Ostrowskyj (Mrs Ostrowskyj), together 'the respondents', commenced proceedings against the appellants, Maria Goyan (Mrs Goyan) and Michael Goyan (Mr Goyan), together 'the Goyans', alleging that they had published certain defamatory matters relating to the appellants in 1999 and 2000. At a hearing in 2002 pursuant to s 7A of the Defamation Act 1974 (the Act), a jury determined that a number of letters had been published by one or other and, in one case, both of the Goyans, which conveyed imputations defamatory of each of Dr Motyka and Mrs Ostrowskyj. Pursuant to s 7A(4) of the Act, the primary judge, James J, determined whether any of a number of defences pleaded by the Goyans were established and the amount of damages, if any, which should be awarded to each of Dr Motyka and Mrs Ostrowskyj. Relevantly, the only defence that was seriously pressed at the hearing before the primary judge was that of common law qualified privilege and, with somewhat less enthusiasm, unlikelihood of harm (s 13 of the Act). Those defences were rejected. His Honour also found that Mrs Goyan's publication of the material complained of was actuated by malice. Having rejected the Goyans' common law qualified privilege defence and having found that Mrs Goyan's publications were in any event actuated by malice, the primary judge assessed damages in favour of Dr Motyka against each of the Goyans in the sum of $60,000 together, in favour of Mrs Ostrowskyj against Mrs Goyan in the sum of $45,000 and against Mr Goyan in the sum of $15,000, in each case together with interest. The Goyans appeal to this Court to review his Honour's findings with respect to the defence of common law qualified privilege, including his finding of malice against Mrs Goyan. They also assert that the quantum of damages awarded to each of the respondents was excessive. The factual background of the dispute In about 1971 Dr Motyka, who lived in Adelaide at the time, helped found an organisation called the Ukrainian Studies Foundation of Australia (the USFA), a company limited by guarantee. Its charter was to promote Ukrainian studies as an academic discipline at a tertiary level. It was, therefore neither a social, community nor cultural organisation. Dr Motyka was one of the original directors of the USFA and served as its chairman from 1990 to 2002. He and his wife moved to Newcastle in about 1979 when he took up an academic position in Accounting at the University of Newcastle. He holds the degree of Doctor of Philosophy in Commerce. Mrs Motyka is a registered medical practitioner. The Goyans also lived in Adelaide. Mr Goyan was a member of the USFA from 1971 and served on its Board in 1987-1988 and 1991. Between about 1976 and 1985 Mrs Ostrowskyj was the head of an organisation known as the Ukrainian Women's Association of South Australia (the UWA). In about 1985 she moved to Newcastle and in 1987 helped found the Ukrainian Women's Association, Newcastle and Hunter Region, which she has headed since its inception. Between 1998 and 2001 she was the head of the National Executive of the UWA in Australia. A Mrs Valentina Nakazny (Mrs Nakazny) had served as the Treasurer of the UWA, Newcastle and Hunter Region. However, she was removed from that office and expelled from the UWA some six or seven years before the publication of the matters complained of in this case. Mrs Nakazny was originally named as a defendant in the statement of claim but the proceedings against her were abandoned after she died. It appears that the present litigation emanates from a dispute between the parties over the organisation of the USFA. Mr Goyan and other USFA members in Adelaide believed they had formed the South Australian "branch" of that organisation. They organised themselves accordingly, conducted annual general meetings of the 'branch' and elected representatives to act as their chairman, treasurer and so forth. At the times relevant to the litigation, Mr Goyan was serving as the elected chairman of the 'branch'. South Australian members of the USFA, led by Mr Goyan, sought control over the funds which those members had raised and which were held in an account in the name of the USFA with the Hoverla Ukrainian Credit Co-operative in South Australia (the Credit Co-operative). In late 1998 an officer of the Credit Co-operative forwarded to the USFA in Sydney a copy of a document which it had received, purporting to record that Mr Goyan and a Mrs Berketa had been authorised to operate on USFA's account with the Credit Co-operative. However, Dr Motyka and the Board of the USFA did not consider there to be 'branches' of the organisation: merely that there were some members of the USFA in Adelaide. They considered that the Board should keep control of all of the funds raised in the name of the USFA by its members, wherever they resided. According to the constitution of the USFA, so they claimed, representatives of the organisation could only be appointed by the Board or at the annual general meeting. The Board therefore asserted that so-called elections held with respect to the South Australian 'branch' were invalid. The Board further deemed that the South Australian representatives had no power to access the USFA's account with the Credit Co-operative except with Board approval, which had not been given. Dr Motyka's evidence on this issue as summarised by the primary judge at [83] was as follows: 'Dr Motyka gave evidence that there was only one account with the Hoverla Credit Co-operative, an account held by the legal entity being the company even if it contained two 'components', an investment account and an operating account, and that the only persons authorised to operate on any component of the account were persons authorised by the Board of the USFA. Dr Motyka denied that there was a local account capable of being operated by members of the USFA in South Australia.' There was disagreement as to Mr [sic] Motyka's characterisation of the account of the USFA with the Credit Co-operative as being only one account with two components. Mr Goyan believed there to be two accounts, and claimed he was seeking access to only one of them. During the USFA's Annual General Meeting in Sydney on 30 January 1999 (the January AGM), Dr Motyka made reference to there having been an unauthorised attempt to change the signatories to the organisation's account. Mr Goyan was at that meeting and took this reference to relate to him although he was not referred to by name. He also complained at the meeting of difficulties with, and inadequate accounting by, the Board. On 25 February 1999 Mr Goyan wrote a letter in English to the Board of the USFA (the 25 February letter) in which he purported to set the record straight regarding the accounts and in which he repeatedly referred to Dr Motyka as a liar. The USFA responded in a letter dated 30 March 1999 written by Dr Motyka in Ukrainian (the 30 March letter). The letter informed Mr Goyan that he had breached the constitution of the USFA in a number of respects, including illegitimately representing himself to be the head of the USFA's South Australian 'branch' and illegally attempting to change the signatories to the USFA's account with the Credit Co-operative. The letter further alleged that Mr Goyan had been distributing letters, some on USFA letterhead, which made untrue allegations against the Board and its members and which injured the good name and reputation of the USFA. Finally, the letter requested that Mr Goyan appear before the Board in Sydney at its next meeting on 17 April 1999 and contained an offer to pay for his return journey from Adelaide so that he could do so. Mr Goyan responded by letter dated 12 April 1999 in English (the 12 April letter) indicating that he would not be attending the Sydney meeting. In that letter he accused Dr Motyka of being high handed and intimidating and implied that he was attempting to alienate all the members of the USFA in order that he might have access to the organisation's funds for himself. Mr Goyan did not attend the meeting on 17 April 1999 and was informed in a letter dated 30 May 1999 that the Board had resolved that he be expelled as a member of the USFA." Tobias JA said that in 1999 and 2000 the applicant and her husband wrote a number of letters in both English and Ukrainian in the course of the disputes referred to in his statement of the factual background of the dispute. The letters were distributed to Dr Motyka and his family and other members of the Ukrainian Studies Foundation of Australia ("USFA") and the Ukrainian Women's Association of South Australia and to other members of the Ukrainian community. There were many letters but only a limited number were complained of by the respondents. Mr Goyan published a book in 2000 in which he reproduced many of the letters (in a mix of Ukrainian and English). The translated title of the book was " A Good Name is One's Greatest Wealth " and its cover bore the logo of the USFA. Tobias JA then set out the publications which had been found by the jury to have conveyed defamatory imputations. They were as follows: A letter dated 17 November 1999 from the applicant and addressed to "Dear Reader", which produced a letter dated 15 November 1999 that the applicant had received from Mrs Nakazny (see [9] of Tobias JA's reasons above). The letter from Mrs Nakazny was apparently written in response to a letter Mrs Goyan had sent to the Board of the USFA. A letter the applicant wrote to Mrs Nakazny on 21 November 1999. A letter the applicant wrote to Mrs Rosa Stenanyszyn on 28 January 2000. A letter the applicant and her husband co-signed and addressed openly to the Ukrainian community on 28 August 2000. The book containing letters dated 25 February 1999 and 12 April 1999.


case_text: power to inquire into a judgment arises not only in cases where the judgment reflects a pre-existing debt or liquidated claim, but also in cases where the judgment follows from the determination of an unliquidated claim and the judgment itself creates the debt: In re Newman; Ex parte Brooke (1876) 3 Ch D 494 ; Wenkart v Abignano [1999] FCA 354 at [23] . Plainly, a claim for damages for defamation falls into the latter category.