case_text: Considered together, the foregoing considerations illustrates that a case of design infringement in the fashion industry can be expensive and difficult to prosecute if a defendant chooses to make it so. To adapt what Stone J said in Microsoft Corporation v Ezy Loans Pty Ltd (2004) 63 IPR 54 at 78, "[i]t is important to more than the applicants that [design] infringers are not encouraged to think that by ignoring court proceedings they can escape the consequences of ... infringements of the rights of others in the pursuit of profits". 62 In these circumstances, I would award an amount of additional damages. Any assessment is necessarily unscientific, but the figure of $50,000 reflects the relevant matters. 63 In summary, for the reasons stated, I would uphold Review's infringement claim regarding the Review Design and dismiss the cross-claim. Judgment in favour of Review should be given in the sum of $85,000. In the circumstances of this case, including the respondents' attitude and conduct in these proceedings, I would grant the injunctive and declaratory relief sought. 64 The trial of this proceeding is, however, not yet concluded. There remain the claims regarding registered design No 306802 to be determined. Accordingly, at this stage I would order merely that the parties file and serve submissions as to the future conduct of the proceeding. I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate: Dated: 24 October 2008 Counsel for the Applicant: Mr C Golvan SC with Mr Wise Solicitor for the Applicant: Middletons The Respondents: Unrepresented Dates of Hearing: 5 - 14 February 2008 Date of Final Submissions (with leave) 22 October 2008 Date of Judgment: 24 October 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1589.html


case_outcome: applied

case_text: generation later, in Co-Operative Insurance Society Ltd v Argyll Stores Holdings Ltd [1998] AC 1 at 14, Lord Hoffman, with whom the other members of the House agreed, in the course of a speech which contains much detailed reflection on the subject of considerations relevant to the granting of mandatory injunctions, referred to that passage from Lord Upjohn's speech and stated: Precision is of course a question of degree and the courts have shown themselves willing to cope with a certain degree of imprecision in cases of orders requiring the achievement of a result in which the plaintiff's merits appeared strong; like all the reasons which I have been discussing, it is, taken alone, merely a discretionary matter to be taken into account: see Spry on Equitable Remedies (4th ed.) at p. 112. It is, however, a very important one. It is not at this interlocutory stage possible to determine whether the merits of the Conservation Council's case are strong and the extent to which, as a matter of discretion, that should influence the framing of any injunctive relief. In conferring the jurisdiction under s 475 to grant mandatory injunctive relief Parliament has envisaged an exercise of the judicial power of the Commonwealth by a court that is one of law and equity. Where a contravention is proved, the granting of a mandatory injunction requires the exercise of a judicial discretion. However, the jurisdiction is statutory, not an incident of the general law of equity.


case_text: Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664 Murphy, Wilson, Brennan, Deane and Dawson JJ jointly observed: Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it ( Gould and Birbeck and Bacon v. Mount Oxide Mines Ltd. (In liq.) [1916] HCA 81 ; (1916) 22 CLR 490 , at p 517; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial ( Miller v. Cameron [1936] HCA 13 ; (1936) 54 CLR 572 , at pp 576-577; and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings ( Gould and Birbeck and Bacon (1916) 22 CLR, at pp 517, 518 ; Sri Mahant Govind Rao v. Sita Ram Kesho (1898) LR 25 Ind App 195, at p 207 ). But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence. Particulars may be amended after the evidence in a trial has closed ( Mummery v. Irvings Pty. Ltd. [1956] HCA 45 ; (1956) 96 CLR 99 , at pp 111, 112, 127), though a failure to amend particulars to accord precisely with the facts which have emerged in the course of evidence does not necessarily preclude a plaintiff from seeking a verdict on the cause of action alleged in reliance upon the facts actually established by the evidence ( Leotta v. Public Transport Commission (N.S.W.) (1976) 9 ALR 437 , at p 446; 50 ALJR 666 , at p 668). Burnett Water is concerned not to disregard the pleadings and to fight the case on the issues so identified. To that end, in November last year it requested the Conservation Council to furnish particulars of the statement of claim. The Conservation Council answered that request but not in a way which Burnett Water submits was sufficient. That the Court has power to order the furnishing of further and better particulars of a statement of claim is not in doubt. Order 12 r 5 of the Federal Court Rules confers such power. The question is whether in the circumstances that power should be exercised or whether Burnett Water has sought to play what was memorably described in the 12 th (1975) Edition of Bullen & Leake and Jacob's Precedents of Pleadings (at 113-114) as "the particulars game"? The observations then made by the learned authors concerning particulars and that "game" remain true today: The tendency of modern practice is to give full particulars as may be necessary of the matters pleaded, and to respond to a request for further and better particulars of pleading more fully than heretofore. There is a growing understanding among practitioners that giving the necessary particulars of pleading not only helps in preparing a case and in stating it with certainty and confidence but also manifests the strength of a party's case, while withholding particulars suggests a possible weakness in the case and a desire to spring surprise as to the oral evidence at the trial. On the other hand, practitioners are also aware, from their knowledge and experience, that particulars of pleadings beyond those that are really necessary may fetter the hands of a party too closely, or lay on him an increased burden of proof, or may disclose more than is tactically wise of his case at that stage. Hence there quite often develops a struggle, which goes under the popular title of the "particulars game," under which one party seeks to compel the opposite party to reveal more fully the case which he has pleaded and to tie him down to narrower issues, whereas the opposite party seeks to keep the issues as wide and as general as possible and to withhold as much of his own case as he can. [Footnote references omitted]


case_outcome: cited

case_text: Burnett Water correctly notes in its submissions, there is ample authority to support the striking out of a pleading of this kind on a strict application of a pleading rule such as O 11 r 2(a) of the Federal Court Rules : H 1976 Nominees v Galli [1979] FCA 74 ; (1979) 30 ALR 181 at 186-187; Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109 at 114-115 and McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 ; (1999) 165 ALR 409 at 418, [23] . Particulars are not a substitute for the allegation of material facts: H 1976 Nominees v Galli [1979] FCA 74 ; (1979) 30 ALR 181 at 186-187. Equally though, as Burnett Water fairly concedes, there is a discernable tendency in modern times against striking out when a pleading even with such a technical fault can be seen fairly to convey when read as a whole, including its so-called particulars, the case which a respondent has to answer: Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 41-691 at 42,827-9.


case_outcome: considered

case_text: are features of the jurisdiction so conferred which set aside considerations which might, under the general law of equity, dispose a court not to grant injunctive relief at all. Thus, s 479(2) provides: Mandatory injunctions (2) The Federal Court may grant an injunction requiring a person to do a particular act or thing: (a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do the act or thing; and (b) whether or not the person has previously refused or failed to do the act or thing; and (c) whether or not there is a significant risk of injury or damage to human beings or the environment if the person refuses or fails, or continues to refuse or fail, to do the act or thing. In light of this provision Parliament must be taken to have considered that there were public interests arising from the objects of the EPBC Act in the case of, materially, a proved contravention of a condition of an approval for the taking of an "action" which, in particular cases, would transcend the considerations referred to in s 479(2) and, notwithstanding those considerations, warrant the granting of a mandatory injunction. As Black CJ and Finkelstein J reminded in Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116 ; (2006) 154 FCR 425 at 431, [18] , s 475 of the EPBC Act makes provision for a remedy of a kind that has come to be known as a public interest injunction.


case_text: this regard, the EPBC Act is not unique. It is an analogue of s 80 of the Trade Practices Act 1974 . Observations made by the members of the Full Court in ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 474 ; (1992) 38 FCR 248 are pertinent. Materially, in that case, the following observations, presently pertinent by analogy, were made in relation to the framing of injunctive relief: Mr Justice Lockhart, French J agreeing, stated, at 259-260: Plainly injunctions should be granted in clear and unambiguous terms which leave no room for the persons to whom they are directed to wonder whether or not their future conduct falls within the scope or boundaries of the injunction. Contempt proceedings are not appropriate for the determination of questions of construction of the injunction or the aptness of the language in which they are framed: see Trade Practices Commission v Walplan Pty Limited [1985] FCA 389 ; (1985) 7 FCR 495 ; Trade Practices Commission v Glo Juice Pty Limited (1987) 73 ALR 407 at 412-414; and Commodore Business Machines Pty Limited v Trade Practices Commission (1990) 92 ALR 563. Decisions under the Act have applied these principles and the judgments refer to the dangers of orders being cast in broad terms which "train the heavy guns of the law upon the respondent" ( Glo Juice at 418) without giving him adequate guidance. As Toohey J. observed in Maclean v Shell Chemical (Australia) Pty Limited (1984) 2 FCR 593 (at 599): "Any injunction granted should be in such terms that is reasonably capable of being obeyed. ... (The order sought) would create uncertainty and place the respondent in a position where it would not know with any precision what was required of it. It follows that, faced with an application to enforce such an injunction, the court would be in an equally difficult position." See also Trade Practices Commission v Walplan Pty Limited . In Commodore a Full Court of this Court said at 574: "The injunction sought in the application was in the following terms: 'An injunction restraining (Commodore) from engaging in the practice of resale price maintenance in respect of the supply of Amiga computers (as defined in the statement of claim) supplied by ( Commodore ).' An injunction in that form might be suggested by the relief granted by the Commonwealth Industrial Court in Festival Stores v Mikasa (NSW) Pty Ltd [1972] HCA 69 ; (1971) 18 FLR 260. On appeal, reported [1972] HCA 69 ; (1972) 127 CLR 617 at 631-2, Barwick C.J. rejected an attack on the propriety of an order which enjoined a wholesaler 'from engaging in the practice of resale price maintenance in respect of tableware marketed ... under the trade name 'Mikasa'.' Nevertheless, such an injunction as that sought by the Commission in this case would have been open to the objection that it was of an undesirable width because, in respect of the supply of Amiga computers, it did no more than reproduce, but this time with the risk of sanctions for contempt, that which the Act in terms forbade by s 48. Any practice of awarding injunctions in such a form is to be discouraged. Such injunctions conflict with the general precept, applicable to the exercise of power under s 80 of the Act as much as to the framing of injunctions in aid of legal and equitable rights, that a final injunction should bear upon the case alleged and proved against the defendant, and should indicate that conduct which is enjoined or commanded to be performed, so that the defendant knows what is expected of him as a matter of fact. Further, where the injunction is in the form of an interlocutory order, it is undesirable to frame the injunction in such a way as to leave the issues in the case open for determination on a contempt proceeding, rather than at a final hearing: see generally Epitoma Pty Ltd v Australasian Meat Industry Employees Union [1984] FCA 202 ; (1984) 3 FCR 55 at 65-6; 54 ALR 730 (Full Court); Trade Practices Commission v Glo Juice Co Pty Ltd (1987) 73 ALR 407 at 412-16 (Burchett J) and Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1987) 75 ALR 331 at 347 (Pincus J)." The drafting of injunctions is ultimately a practical question. In some cases it presents no difficulties to the draftsman, but in others the exercise is far from easy. Mr Justice Gummow made the following observations (at 266-267): In Mr Heydon's work "Trade Practices Law" para. 18.740, the view is expressed that whilst in concept the statutory remedy provided for in s. 80 of the Act is different from the equitable remedy of injunction as administered in the inherent jurisdiction of courts of equity, nevertheless "in many practical respects it is not, however, fundamentally distinct from the equitable remedy." I agree with that observation. ... Sub-section 80(1) confers upon the Court the power to grant an injunction where it is satisfied that a person has engaged or is proposing to engage in conduct that constitutes or would constitute conduct of the description in paras. (a)-(f). The power of the Court to grant an injunction is controlled by the words "in such terms as the Court determines to be appropriate." Thus, the terms of the injunction will not be "appropriate" if, on its face, it operates upon a range of conduct some of which does, but some of which does not, have the relationship required by s. 80 with contravention of the Act. The injunction should not prohibit conduct falling outside the boundaries drawn by s. 80: Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150 at 161. The same limitation applies to mandatory injunctive relief. It is, in my view, no support for the grant of an injunction which, from the outset, has an operation outside the boundaries of s. 80, to say that it is open for the party enjoined to apply under sub-s. 80(3) to vary the injunction so as to bring its operation wholly within proper limits. The party in question should not be placed under any such obligation in the first place. In the course of his expressing agreement with the judgement of Lockhart J, French J observed (at 268) of the power to grant injunctive relief conferred by s 80 of the Trade Practices Act , "The remedy is flexible and may be applied in service of a variety of functions to support the policy of the Act." Attention needs to be given to the language of s 475 when considering both the nature of the power conferred and the remedy which may appropriately be granted pursuant to that power. In context, if a failure to do an act namely, the construction of a dam incorporating an installed fish transfer device suitable for lungfish constitutes an offence or other contravention of the EPBC Act because the dam as constructed does not have installed such a fish transfer device, thereby breaching a condition of the approval for the taking of that act, the Court may grant an injunction requiring the person to do the act, ie to incorporate in the dam a fish transfer device suitable for lungfish. There is no evidence that Burnett Water challenged condition 3 of the Minister's approval on the basis that it was manifestly unreasonable because it required the performance of a task that was impossible or was cast in terms that were so uncertain as to be devoid of sensible meaning. Indeed, had the installation of such a device been impossible, that may, given the objects of the EPBC Act and the protection afforded to the lungfish, have called into question whether the Minister should have approved the construction of the dam at all. The relief sought by the Conservation Council in para 2 of the application is cast in more precise terms than the terms of condition 3 of the Ministerial approval. It is enough at present that the relief sought bears a reasonably arguable relationship with that which the statute permits the Court to grant and the circumstances of the case. In my opinion, it does. The claim for this relief is neither frivolous nor vexatious nor an abuse of process either for the purposes of O 20 r 5 of the Federal Court Rules or for the purposes of s 31A(2) of the Federal Court of Australia Act 1976 (Cth). The proposed relief certainly does more than just recite the terms of the statute. It is more precise than that which in the circumstances of ICI Australia Operations Pty Ltd v Trade Practices Commission was regarded as appropriate. Whether it is appropriate to grant relief in terms of para 2 of the application, other terms (and that further or other relief was sought was foreshadowed in oral submissions by the Conservation Council) or at all depends on the proof of a contravention, on the construction of condition 3 and on the evidence led at trial. Given that para 2 does not warrant being summarily struck out, it is not appropriate to consider the issues mentioned in the preceding sentence either in the abstract or as a separate question divorced from the evidence at the trial. Morris v Redland Bricks Ltd and ICI Australia Operations Pty Ltd v Trade Practices Commission are not cases which compel the summary striking out of para 2 of the application. If the Conservation Council proves those preconditions, a judicial discretion is enlivened. Considerations such as those set out in Morris v Redland Bricks Ltd are, in a non-exhaustive way, relevant to the formulation of injunctive relief in the exercise of that discretion. ICI Australia Operations Pty Ltd v Trade Practices Commission establishes that injunctive relief granted under a power akin to s 475 of the EPBC Act must bear a relationship with the case alleged and proved and must be cast in terms which admit of an understanding of what is expected of the party enjoined. It does not follow from this that the Conservation Council is obliged to give particulars of what is a suitable fish transfer device for lungfish. It may, if it chooses, lead evidence touching on that subject as part of its case as to why the existing, installed device is unsuitable. If so, that evidence, together with other evidence led at the trial, may well inform how any injunctive relief ought to be cast.


case_text: these allegations, allegation (a) would at least require particulars of the alleged unsuitability of the installed device. Particulars may also be required of the facts, matters and circumstances by reference to which it was alleged that Burnett Water was aware of the risk concerned. Were such particulars not to be furnished, a modern pleading rule such as O 12 r 5(2)(a) of the Federal Court Rules would enable them to be ordered, as Fitzgerald J (as his Honour then was) highlighted by reference to English authority in Lyons v Kern Konstructions (Townsville) Pty Ltd (1983) 47 ALR 114 at 124-126. As to allegation (b), this would at least require particulars of the circumstances said to be known to Burnett Water. Again, given the disposition of the application, it is unnecessary to decide whether the Conservation Council should be ordered to furnish particulars of the individuals by whose conduct Burnett Water is said to have been reckless. However, the foundation for the request does require comment. That foundation was based on what one might describe as "reverse engineering", grounded in ss 498B(1) and 498B(2) of the EPBC Act. These provide: 498B Conduct of directors, employees and agents Bodies corporate—conduct (1) Any conduct engaged in on behalf of a body corporate: (a) by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; or (b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, employee or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, employee or agent; is to be taken, for the purposes of this Act, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct. Bodies corporate—state of mind (2) If, for the purposes of this Act, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show: (a) that the conduct was engaged in by a person as mentioned in paragraph (1)(a) or (b); and (b) that the person had that state of mind.


case_title: McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 ; (1999) 165 ALR 409


case_text: Water drew attention to authority, a notable exemplar of which is Morris v Redland Bricks Ltd [1970] AC 653 , which counsels the framing of injunctive relief requiring the performance of an act in terms which are sufficiently precise to enable the person to whom the injunction is directed to know what is required of him. Such precision also allows those concerned in his performance readily to ascertain whether the act has been performed as ordered. As Lord Upjohn, with whom the other members of the House agreed, put it in his speech in Morris v Redland Bricks Ltd [1970] AC at 666: If in the exercise of its discretion the court decides that it is a proper case to grant a mandatory injunction, then the court must be careful to see that the defendant knows exactly what in fact he has to do and this means not as a matter of law but as a matter of fact, so that in carrying out an order he can give his contractors the proper instructions. The relief sought by the Conservation Council in para 2 of the application is cast in more precise terms than the terms of condition 3 of the Ministerial approval. It is enough at present that the relief sought bears a reasonably arguable relationship with that which the statute permits the Court to grant and the circumstances of the case. In my opinion, it does. The claim for this relief is neither frivolous nor vexatious nor an abuse of process either for the purposes of O 20 r 5 of the Federal Court Rules or for the purposes of s 31A(2) of the Federal Court of Australia Act 1976 (Cth). The proposed relief certainly does more than just recite the terms of the statute. It is more precise than that which in the circumstances of ICI Australia Operations Pty Ltd v Trade Practices Commission was regarded as appropriate. Whether it is appropriate to grant relief in terms of para 2 of the application, other terms (and that further or other relief was sought was foreshadowed in oral submissions by the Conservation Council) or at all depends on the proof of a contravention, on the construction of condition 3 and on the evidence led at trial. Given that para 2 does not warrant being summarily struck out, it is not appropriate to consider the issues mentioned in the preceding sentence either in the abstract or as a separate question divorced from the evidence at the trial. Morris v Redland Bricks Ltd and ICI Australia Operations Pty Ltd v Trade Practices Commission are not cases which compel the summary striking out of para 2 of the application. If the Conservation Council proves those preconditions, a judicial discretion is enlivened. Considerations such as those set out in Morris v Redland Bricks Ltd are, in a non-exhaustive way, relevant to the formulation of injunctive relief in the exercise of that discretion. ICI Australia Operations Pty Ltd v Trade Practices Commission establishes that injunctive relief granted under a power akin to s 475 of the EPBC Act must bear a relationship with the case alleged and proved and must be cast in terms which admit of an understanding of what is expected of the party enjoined. It does not follow from this that the Conservation Council is obliged to give particulars of what is a suitable fish transfer device for lungfish. It may, if it chooses, lead evidence touching on that subject as part of its case as to why the existing, installed device is unsuitable. If so, that evidence, together with other evidence led at the trial, may well inform how any injunctive relief ought to be cast.


case_title: Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 41-691


case_title: Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109


case_title: Wide Bay Burnett Conservation Council Inc v Burnett Water Pty Ltd [2008] FCA 1900

case_text: background to this case is described in an interlocutory judgement which I delivered on 12 December 2008 in respect of an application by Burnett Water for a stay of the proceedings: Wide Bay Conservation Council Inc v Burnett Water Pty Ltd [2008] FCA 1900. That application was unsuccessful. The case concerns a dam on the Burnett River known as the Paradise Dam the construction and operation of which, subject to conditions, was approved by a Commonwealth Minister under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act). Differences have emerged between the parties with respect to a number of issues of practice and procedure. Burnett Water has sought the following orders: 1. That by 10 April 2009 the Applicant file and serve: (a) the further and better particulars requested in the Respondent's solicitors' letter dated 24 February 2009; (b) a statement of the design of the fish transfer device which, by the grant of the injunction sought in paragraph 2 of the Application, the Respondent would be compelled to install and operate. 2. Alternatively to paragraph 1(b) above, that: (a) the claim for relief in paragraph 2 of the Application be struck out; and (b) the Applicant have leave to file and serve by 10 April 2009 an Amended Application including a claim for a mandatory injunction, such leave being conditional upon the Amended Application including, or incorporating by reference, a statement of the design of the fish transfer device which, by the grant of the injunction, the Respondent would be compelled to install and operate. 3. Such further or other order as the Court deems fit.


case_text: In my opinion Monster's construction would lead to a result contrary to common sense (cf: Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1996) 186 CLR 389 at 400 citing Oliver LJ in Exxon Corporation v Exxon Insurance Ltd [1982] Ch 119 at 144 where recourse to commonsense in construing an expression in a statute was allowed). A similar approach is apposite in construing agreements: cp: Miramar Maritime Corporation v Holborn Oil Trading Ltd [1984] AC 676 at 682E-F per Lord Diplock). As Lord Diplock said in Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191 at 201E: '... if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business commonsense, it must be made to yield to business commonsense'.


case_outcome: followed

case_text: In Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Limited [2003] HCA 18 ; (2003) 214 CLR 51 the High Court considered the incorporation into s 51AA of the Trade Practices Act 1974 (Cth) the concept of unconscionability in the unwritten law. While s 51AC is a separate and freestanding statutory provision, the word 'unconscionable' is undefined in both s 51AA and s 51AC. The latter section identifies a range of factors to which the Court may have regard in considering whether in all the circumstances the relevant conduct is unconscionable. The factors identified in s 51AC(3) are, of course, not exhaustive, but they have similarities to the features of unconscionability or unconscientious behaviour identified in decisions of Blomley v Ryan [1954] HCA 79 ; (1956) 99 CLR 362 and Commercial Bank of Australia Ltd v Amadio [1983] HCA 14 ; (1983) 151 CLR 447. In ACCC v CG Berbatis Holdings Pty Limited [2003] HCA 18 ; (2003) 214 CLR 51 at 64 [11] Gleeson CJ observed that a person was not in a position of relevant disadvantage simply because of inequality of bargaining powers. He said that many, perhaps even most, contracts are made between parties of unequal bargaining power, and good conscience does not require parties to contractual negotiations to forfeit their advantages, or neglect their own interests. And the Chief Justice continued that unconscientious exploitation or another's inability, or diminished ability, to conserve his or her own interests is not to be confused with taking advantage of a superior bargaining position for the purposes of s 51AA (214 CLR at 64 [14]). 145 However, a difference in bargaining positions is a factor which is one of the relevant circumstances that can be taken into account under s 51AC(3)(a). In ACCC v CG Berbatis Holdings Pty Limited [2003] HCA 18 ; (2003) 214 CLR 51 at 65 [15] - [16] , Gleeson CJ pointed out that the critical disadvantage from which the lessees in that case suffered was that they had no legal entitlement to a renewal or extension of the lease; that depended upon the lessors' willingness to grant such rights. In that context there was a compulsion to deal with the lessors which created a distinct disadvantage on the lessees, but not such as to attract the unwritten law of unconscionability to their position. As Gleeson CJ said: 'It is an everyday occurrence in negotiations for settlement of legal disputes that, as a term of settlement, one party will be required to abandon claims which may or may not be related to the principal matter in issue.' He said that parties to commercial negotiations frequently use their bargaining power to 'extract' concessions from other parties but that was the stuff of ordinary commercial dealings (see too per Gummow and Hayne JJ at 214 CLR at 76-77 [55]-[57] and Callinan J at 112-115 [172]-[185]). 146 Monster gave no explanation for its failure to accept the offer of new IVR licences in the period following 28 October 2005. Nor did it identify any conduct of APRA and AMCOS as being unconscionable while Monster did not reply to the 28 October 2005 letter. Monster saw its own interests were served by it not pursuing that matter. That only changed on 31 January 2006 when APRA and AMCOS made a threat to commence proceedings if Monster did not pay what they said was due by 8 February, the day after the letter of 7 February 2006 was sent. 147 I do not see any element of unconscientiousness or moral obloquy on the part of APRA and AMCOS in this situation. Monster was advised by solicitors. Mr Chong was well able to make commercial decisions in what he saw as being Monster's and his own best interests. For Monster's and his own reasons, about which he gave no evidence, he chose not to take up the offer of new IVR licences at a time when it was obvious APRA and AMCOS were prepared to grant them in late October 2005. And, because Monster had no licences, and was not continuing to trade without them, APRA and AMCOS were entitled to act as they did in seeking to enforce their rights to prevent infringement of copyrights in which they were interested.


case_title: Ballas v Theophilos [No 2] [1957] HCA 90 ; (1957) 98 CLR 193 Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165

case_text: The use of the concept of agency to overcome the need for privity is a technique which was described in Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165 at 193 [79] by Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ adopting the words of Lord Bingham of Cornhill (in Homburg Houtimport BV v Agrosin Private Ltd [2003] UKHL 12 ; [2004] 1 AC 715 at 744) as 'a deft and commercially-inspired response to technical English rules of contract, particularly those governing privity and consideration'. As their Honours went on to note in the case of a stevedore seeking the benefit of a Himalaya clause against a consignee of damaged cargo, courts have been ready to conclude that the carrier was acting with the stevedore's authority. As Lord Wilberforce said in his classic opinion in New Zealand Shipping Co Ltd v AM Satterthwaite & Co Ltd [1975] AC 154 at 167E, the law of contract takes a practical approach in commercial situations '... often at the cost of forcing the facts to fit uneasily into the slots of offer, acceptance and consideration'. Even if Monster be correct to say that at the end of the day it received a lesser sum than that which the customer paid for the download, that was a result of Monster entering into arrangements with the telecommunications networks, perhaps on behalf of the customer or perhaps on its own behalf, it matters not, for the purposes of ensuring that the customer bought the download at the overall price Monster advertised that it was charging. 128 Monster argued that the offer of 28 October 2005 was open to be accepted over three months later on 7 February 2006. In general, the law implies that when no time limit for the exercise of a right is stipulated, the right may be exercised within a reasonable time unless there are indications to the contrary: Reid v Moreland Timber Co Pty Limited [1946] HCA 48 ; (1946) 73 CLR 1 at 13 per Dixon J. I am of opinion that this statement of the rule, coming from a case in contract, is just as applicable to a case where an offer to enter into a contract is made. Ordinarily in contract, absent an express provision to the contrary, where no time is fixed for performance, the parties are, or the party upon whom the obligation is cast is, obliged to perform within a reasonable time: see e.g. Perri v Coolangatta Investments Pty Limited [1982] HCA 29 ; (1982) 149 CLR 537 at 545-546 per Gibbs CJ, 567 per Brennan J (with whom Stephen J agreed). And, in Ballas v Theophilos [No 2] [1957] HCA 90 ; (1957) 98 CLR 193 at 197 Dixon CJ (with whom McTiernan J agreed) said that the implication of law, where a partnership deed limited no time for the exercise of an option, is that the option had to be exercised within a reasonable time. Dixon J observed that the stipulations contained in the relevant clause itself affected what a reasonable time was. Williams J, came to a like conclusion (at 98 CLR at 199). 134 The rights and liabilities of the parties to a contract are determined by a reference to what each party by words or conduct would have led a reasonable person in the position of the other party to believe ( Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165 at 179 [40] ). I am of opinion that the same principle should be applied to the evaluation of whether an offer, the acceptance of which would bring the parties into an actual contractual relationship, is capable of acceptance. A reasonable person in the position of the parties would have regarded the offer of 28 October 2005 as not remaining open for an indefinite time. Such a person would have said on 7 February 2006 that the offer of 28 October 2006 had lapsed some considerable time before.


case_title: Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1996) 186 CLR 389


case_text: Monster submitted that this was not an available approach to construction and that I was bound to follow what it argued was the different approach in Fitzgerald v Masters [1956] HCA 53 ; (1956) 95 CLR 420. In that case, of course, there was an obvious mistake. The question was how should the Court construe the language used. McTiernan, Webb and Taylor JJ said (95 CLR at 437): 'It is trite law that an instrument must be construed as a whole. Indeed it is the only method by which inconsistencies of expression may be reconciled and it is in this natural and commonsense approach to problems of construction that justification is to be found for the rejection of repugnant words, the transposition of words and the supplying of omitted words (cf. Norton on Deeds 2 nd ed (1928) p 98)' (emphasis added)


case_text: The use of the concept of agency to overcome the need for privity is a technique which was described in Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165 at 193 [79] by Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ adopting the words of Lord Bingham of Cornhill (in Homburg Houtimport BV v Agrosin Private Ltd [2003] UKHL 12 ; [2004] 1 AC 715 at 744) as 'a deft and commercially-inspired response to technical English rules of contract, particularly those governing privity and consideration'. As their Honours went on to note in the case of a stevedore seeking the benefit of a Himalaya clause against a consignee of damaged cargo, courts have been ready to conclude that the carrier was acting with the stevedore's authority. As Lord Wilberforce said in his classic opinion in New Zealand Shipping Co Ltd v AM Satterthwaite & Co Ltd [1975] AC 154 at 167E, the law of contract takes a practical approach in commercial situations '... often at the cost of forcing the facts to fit uneasily into the slots of offer, acceptance and consideration'. Even if Monster be correct to say that at the end of the day it received a lesser sum than that which the customer paid for the download, that was a result of Monster entering into arrangements with the telecommunications networks, perhaps on behalf of the customer or perhaps on its own behalf, it matters not, for the purposes of ensuring that the customer bought the download at the overall price Monster advertised that it was charging.


case_text: Lord Reid once said that in arriving at the proper construction of a contract: 'The fact that a particular construction leads to a very unreasonable result must be a relevant consideration. The more unreasonable the result the more unlikely it is that the parties can have intended it, and if they do intend it the more necessary it is that they shall make that intention abundantly clear: L Schuler AG v Wickman Machine Tool Sales Ltd [1973] UKHL 2 ; [1974] AC 235 at 251E.' 106 Their Honours' approach is not inconsistent with Lord Reid's or Lord Diplock's approaches. After all, the purpose of construction of contracts is to ascertain by reference to the words used in the factual matrix in which the parties dealt with one another what an objective person would reasonably understand the parties to have intended. And, as Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said in Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5 ; (2002) 76 ALJR 436 at 439 [10] ; [2002] HCA 5 ; 186 ALR 289 at 293: ' [10] In Codelfa , Mason J (with whose judgment Stephen J and Wilson J agreed) referred to authorities (In particular, speeches of Lord Wilberforce in Prenn v Simmonds [1971] 1 WLR 1381 at 1381-1383-1385; [1971] 3 All ER 237 at 239-241; L Schuler AG v Wickman Machine Tool Sales Ltd [1973] UKHL 2 ; [1974] AC 235 at 261; and Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989 at 995-997; [1976] 3 All ER 570 at 574-576) which indicated that, even in respect of agreements under seal, it is appropriate to have regard to more than internal linguistic considerations and to consider the circumstances with reference to which the words in question were used and, from those circumstances, to discern the objective which the parties had in view. In particular, an appreciation of the commercial purpose of a contract: ( Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989 at 995-996; [1976] 3 All ER 570 at 574) "... presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating." Such statements exemplify the point made by Brennan J in his judgment in Codelfa: ((1982) [1982] HCA 24 ; 149 CLR 337 at 401) "The meaning of a written contract may be illuminated by evidence of facts to which the writing refers, for the symbols of language convey meaning according to the circumstances in which they are used."'


case_text: Gleeson CJ, Gummow and Hayne JJ said in Maggbury Pty Limited v Hafele Australia Pty Limited [2001] HCA 70 ; (2001) 210 CLR 181 at 188: 'Interpretation of a written contract involves, as Lord Hoffmann has put it ( Investors Compensation Scheme Ltd v West Bromwich Building Society [1997] UKHL 28 ; [1998] 1 WLR 896 at 912; [1997] UKHL 28 ; [1998] 1 All ER 98 at 114. See also the remarks of Mason J in Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 at 350-352, and of Lord Bingham of Cornhill in Bank of Credit and Commerce International SA v Ali [2001] UKHL 8 ; [2002] 1 AC 251 at 259): "the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract." That knowledge may include matters of law, as in this case where the obtaining of intellectual property protection was of central importance to the commercial development of Mr Allen's ironing board (cf Bank of Credit and Commerce International SA v Ali [2001] UKHL 8 ; [2002] 1 AC 251 at 282, per Lord Clyde).'


case_title: New Zealand Shipping Co Ltd v AM Satterthwaite & Co Ltd [1975] AC 154


case_text: Monster argued that the offer of 28 October 2005 was open to be accepted over three months later on 7 February 2006. In general, the law implies that when no time limit for the exercise of a right is stipulated, the right may be exercised within a reasonable time unless there are indications to the contrary: Reid v Moreland Timber Co Pty Limited [1946] HCA 48 ; (1946) 73 CLR 1 at 13 per Dixon J. I am of opinion that this statement of the rule, coming from a case in contract, is just as applicable to a case where an offer to enter into a contract is made. Ordinarily in contract, absent an express provision to the contrary, where no time is fixed for performance, the parties are, or the party upon whom the obligation is cast is, obliged to perform within a reasonable time: see e.g. Perri v Coolangatta Investments Pty Limited [1982] HCA 29 ; (1982) 149 CLR 537 at 545-546 per Gibbs CJ, 567 per Brennan J (with whom Stephen J agreed). And, in Ballas v Theophilos [No 2] [1957] HCA 90 ; (1957) 98 CLR 193 at 197 Dixon CJ (with whom McTiernan J agreed) said that the implication of law, where a partnership deed limited no time for the exercise of an option, is that the option had to be exercised within a reasonable time. Dixon J observed that the stipulations contained in the relevant clause itself affected what a reasonable time was. Williams J, came to a like conclusion (at 98 CLR at 199).


case_text: In Raben Footwear Pty Ltd v Polygram Records Inc (1997) 75 FCR 88 at 93A-B, Burchett J (with whom Lehane J agreed at 104F) applied an earlier statement he had made in Autodesk Inc v Yee (1996) 68 FCR 391 at 394 that in Australia additional damages may be given upon principles corresponding to those governing awards of aggravated and also exemplary damages at common law. He said that the Act had objectives other than compensation (75 FCR at 93E-F). Each of the factors referred to in s 115(4)(b) is sufficient in itself to sustain an award of additional damages. It is not necessary that each of them must be proved, rather that the relevant conduct of the defendant or respondent in the circumstances warrants an award. Tamberlin J came to a similar conclusion (75 FCR at 102E-104E). He noted the importance of preserving a broad unfettered discretion in relation to additional damages so far as quantum was concerned (75 FCR at 104D) and, that broad discretion should not be formulated in any arithmetic or mechanical way (75 FCR at 104C). I do not think that this is a case of mere mistake or neglect (75 FCR at 93C; Prior v Lansdowne Press Pty Ltd [1977] VR 65 at 70; (1975) 12 ALR 685 at 90). 200 I think that Mr Chong's attitude, which was also Monster's, towards the non-payment of royalties to APRA and AMCOS was quite flagrant. Mr Chong thought he could get away without paying for what was due just as he did with trying to get away with using other people's rights without having first made any, let alone, proper arrangements for their use. I think there should be an appropriate marking of the Court's disapproval by a significant award (see Raben Footwear Pty Ltd v Polygram Records Inc (1997) 75 FCR 88 at 102-103; cp: Australian Performing Right Association Ltd v Pashalidis (2000) 48 IPR 610 at 619 [32] per Moore J). 201 Monster's and Mr Chong's conduct merits a substantial amount of additional damages being awarded so as to mark disapproval of its infringing conduct and to deter others from engaging in similar behaviour. During the 3 year period to 30 June 2006 Monster's total revenues from all its telecommunications service providers accounts total over $19 million. These include considerable revenues generated by the infringements. But the use of ringtone downloads was a means of attracting Monster's customers to all its advertised products. In my opinion, on the basis of my findings, I should fix the amount of additional damages at $100,000.


case_text: A ringtone is a fragment of a musical work in digital form which is intended to be delivered to and to function as the ring of a mobile telephone: Re Powercom Interactive Media Pty Ltd (2003) 175 FLR 1 at 3 [9] per Lindgren P. The President found that in storing ringtones on its computers, a ringtone supplier makes a reproduction of those parts of the musical works embodied in the ringtones for the purposes of s 31(1)(a)(i) of the Copyright Act 1968 (Cth). In electronically transmitting ringtones to a mobile telephone, the ringtone supplier exercises the right of communication to the public in respect of those parts of the musical works embodied in the ringtones (s 31(1)(a)(iv) of the Act: s 10(1) contains a definition of the word 'communicate' as meaning to 'make available online or electronically transmit ... a work or other subject matter'). By providing an IVR service, a ringtone supplier authorizes the making of the copy of the ringtones which are created in the customer's mobile telephones upon electronic transmission of them (for the purposes of s 36 of the Act) (175 FLR at 4 [11]-[13]). 14 Relevantly, each of the SMS licences dated 1 January 2005 is in identical terms, except for the fees payable under Schedule 1, the identity of the licensors and an extra clause in the AMCOS version regulating reproduction of musical works (cl 5). Each SMS licence commenced on 1 October 2004 (cl 3). APRA was entitled to a fee for monophonic or polyphonic format ringtones of 1.1% (inclusive of GST) of the retail price subject to a minimum fee of 1.65cents (inclusive of GST) per sale. The fee for phonographic format (i.e. MP3) ringtones was 2.2% (inclusive of GST) of the retail price subject to a minimum fee of $3.30 per sale. At all times, Monster charged consumers, according to its advertisements $3.50 per ringtone downloaded via an SMS service. 15 AMCOS was entitled to a fixation fee of $11 in respect of each new AMCOS work added to the licensee's inventory in the quarter for which the fees were payable. In addition, the licensee had to pay AMCOS a fee for each ringtone of 11% inclusive of GST of the retail price subject to a minimum fee of 16.5cents (inclusive of GST) per sale. 149 I am of opinion that no such order should be made. Monster has committed serious breaches of the IVR and SMS licences in the past. I do not think that it is appropriate to force APRA and AMCOS into a contractual relationship in the circumstances. I am not satisfied that they would not negotiate the granting of new licences to Monster in good faith. If Monster cannot obtain in such negotiations new licences from APRA, the Copyright Tribunal has power to settle their terms. That power may also extend to the AMCOS licences in circumstances such as the present: Re Powercom Interactive Media Pty Ltd (2003) 175 FLR at 8-9 [26]-[31] per Lindgren P. 150 Monster was unlicensed from 18 August 2005 in respect of IVR services and from 13 December in respect of SMS services. It is liable to APRA and AMCOS for damages for infringement. APRA and AMCOS exercised their election to claim damages rather than an account of profits. It is agreed that the appropriate sum by which compensatory damages should be fixed is what would have been payable under the licences had Monster been licensed. That is a reasonable approach and I will adopt it. 151 Mr Mallett identified four licensees of ringtones from APRA and AMCOS which he said were comparable to the business operated by Monster. The trading names of the licensees were Jamster, Bugal, Blue Sky Frog and Powercom. He concluded that the proportions of ringtone downloads of all downloads in each of those competitors' businesses over the periods he examined were between 40.94% and 66.17%. This was based on the amount of licence fees paid to APRA and AMCOS by each of those licensees during the relevant licence periods. Mr Mallett estimated, based on his comparison with the four competitors, about 41.31% of Monster's revenue over its period of trading was attributable to ringtone services. This led to a claim that total licence fees due to 30 June 2006 were $1 million of which only about $315,000 had been paid.


case_title: Reid v Moreland Timber Co Pty Limited [1946] HCA 48 ; (1946) 73 CLR 1


case_text: Their Honours' approach is not inconsistent with Lord Reid's or Lord Diplock's approaches. After all, the purpose of construction of contracts is to ascertain by reference to the words used in the factual matrix in which the parties dealt with one another what an objective person would reasonably understand the parties to have intended. And, as Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said in Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5 ; (2002) 76 ALJR 436 at 439 [10] ; [2002] HCA 5 ; 186 ALR 289 at 293: ' [10] In Codelfa , Mason J (with whose judgment Stephen J and Wilson J agreed) referred to authorities (In particular, speeches of Lord Wilberforce in Prenn v Simmonds [1971] 1 WLR 1381 at 1381-1383-1385; [1971] 3 All ER 237 at 239-241; L Schuler AG v Wickman Machine Tool Sales Ltd [1973] UKHL 2 ; [1974] AC 235 at 261; and Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989 at 995-997; [1976] 3 All ER 570 at 574-576) which indicated that, even in respect of agreements under seal, it is appropriate to have regard to more than internal linguistic considerations and to consider the circumstances with reference to which the words in question were used and, from those circumstances, to discern the objective which the parties had in view. In particular, an appreciation of the commercial purpose of a contract: ( Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989 at 995-996; [1976] 3 All ER 570 at 574) "... presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating." Such statements exemplify the point made by Brennan J in his judgment in Codelfa: ((1982) [1982] HCA 24 ; 149 CLR 337 at 401) "The meaning of a written contract may be illuminated by evidence of facts to which the writing refers, for the symbols of language convey meaning according to the circumstances in which they are used."'


case_text: The use of the concept of agency to overcome the need for privity is a technique which was described in Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165 at 193 [79] by Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ adopting the words of Lord Bingham of Cornhill (in Homburg Houtimport BV v Agrosin Private Ltd [2003] UKHL 12 ; [2004] 1 AC 715 at 744) as 'a deft and commercially-inspired response to technical English rules of contract, particularly those governing privity and consideration'. As their Honours went on to note in the case of a stevedore seeking the benefit of a Himalaya clause against a consignee of damaged cargo, courts have been ready to conclude that the carrier was acting with the stevedore's authority. As Lord Wilberforce said in his classic opinion in New Zealand Shipping Co Ltd v AM Satterthwaite & Co Ltd [1975] AC 154 at 167E, the law of contract takes a practical approach in commercial situations '... often at the cost of forcing the facts to fit uneasily into the slots of offer, acceptance and consideration'. Even if Monster be correct to say that at the end of the day it received a lesser sum than that which the customer paid for the download, that was a result of Monster entering into arrangements with the telecommunications networks, perhaps on behalf of the customer or perhaps on its own behalf, it matters not, for the purposes of ensuring that the customer bought the download at the overall price Monster advertised that it was charging. 134 The rights and liabilities of the parties to a contract are determined by a reference to what each party by words or conduct would have led a reasonable person in the position of the other party to believe ( Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165 at 179 [40] ). I am of opinion that the same principle should be applied to the evaluation of whether an offer, the acceptance of which would bring the parties into an actual contractual relationship, is capable of acceptance. A reasonable person in the position of the parties would have regarded the offer of 28 October 2005 as not remaining open for an indefinite time. Such a person would have said on 7 February 2006 that the offer of 28 October 2006 had lapsed some considerable time before.


case_text: I am satisfied that there is a real risk that Monster and Mr Chong will continue to infringe APRA's and AMCOS' copyrights unless restrained. It is appropriate to grant injunctive relief to prevent Monster's continuing infringements: Universal Music Australia Pty Limited v Cooper [2005] FCA 1878 at [13] . 204 Having regard to my findings, it is necessary for calculations to be made as to the precise sums to be awarded by way of damages. I will direct the applicants to bring in short minutes of order to give effect to my reasons. This will allow the respondents to check the calculation of any royalties. It follows that the respondents should pay the applicants' costs. I certify that the preceding two hundred and four (204) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 21 December 2006 Counsel for the Applicant: Mr MJ Leeming SC and Ms K Deards Solicitor for the Applicant: Banki Haddock Fiora Counsel for the Respondent: Mr IM Jackman SC and Mr JL Lazarus Solicitor for the Respondent: CG Gillis & Co Date of Hearing: 2-6 October 2006 Date of Judgment: 21 December 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1806.html


case_text: An award of additional damages should not impose a punishment greater than would be imposed if the conduct were criminal ( XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12 ; (1985) 155 CLR 448 at 463 per Gibbs J). The defendant's financial circumstances are a relevant consideration ( XL 155 CLR at 461 per Gibbs CJ, 472 per Brennan J) as has been the period of the conduct and its circumstances.


case_text: A commercial purpose of the SMS licences was to enable APRA and AMCOS to receive a percentage of the earnings of those seeking to exploit copyright works over which they had rights. The SMS licences authorized Monster to use telecommunications networks to communicate and reproduce the copyright ringtone. In ordinary English usage, 'retail price' is the amount paid by the customer for the goods or service. It is not the net amount the retailer receives after paying a sum not disclosed to the customer for the right to sell the goods or service. The term 'retail price' should be construed so as to avoid it making commercial nonsense or working commercial inconvenience, as Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ said in Zhu v Treasurer of NSW [2004] HCA 56 ; (2004) 218 CLR 530 at 559 [82] . They also said that the commercial purpose of reasonable persons in the position of the parties was relevant, as were the genesis of the transaction, the background, the context and the market in which the parties were operating, as known to each of them (218 CLR at 559 [82]). 68 A significant commercial purpose of the SMS licences was to enable the whole download procedure to be authorised by the licensors and for the money generated by the exploitation of the rights they granted to be used as the basis for calculating the royalty fee due respectively to each of APRA and AMCOS. 69 Moreover, it would be a very odd construction of the ordinary English language term 'retail price' to divorce the price advertised by Monster to the public as the price payable for the download, from the price on which Monster was liable to account for royalties. Monster organised through its various telecommunication contracts and licences with APRA and AMCOS, a situation in which members of the public could use their own telephones to obtain a service Monster had for sale. Monster contracted with the public by offering to sell the SMS download to them for the price of $3.50 in its advertisements. That involved Monster becoming an agent, or using agents, to ensure that the transaction was carried out so the consumer received that for which he or she paid. Monster needed to charge its customer a price to cover its costs of delivering the download. 108 It is necessary to construe an agreement so as to avoid making it commercial nonsense or working commercial inconvenience. The commercial purpose of the definitions, that is to say the purpose of a reasonable person in the position of the parties to the contract, is relevant. That in turn requires attention to the genesis of the transaction, the background, the context, the market in which the parties were operating, as known to both parties: Zhu v Treasurer of New South Wales [2004] HCA 56 ; (2004) 218 CLR 530 at 559 [82] . 109 Accordingly, the $0.003 per second and non-telecommunications service charges should not be deducted from net call revenue. 110 APRA and AMCOS say they were entitled to terminate the IVR licences because the interim fees invoiced after the audit were not paid within 14 days. By cll 6.2 and 6.3 of the APRA IVR licence (cll 7.2 and 7.3 of the AMCOS one) Monster had to pay any invoice issued by the licensor within 14 days after the date of the invoice. An invoice for additional licence fees issued after APRA received information under cl 8 (cl 9 of the AMCOS IVR licence) had also to be paid within this time (cll 6.3 and 7.3 respectively).


case_text: submission fails to take into account s 435(1) of the Migration Act 1958 (Cth). That section provides that ' a member [of the Refugee Review Tribunal] has, in the performance of his or her duties as a member, the same protection and immunity as a member of the Administrative Appeals Tribunal '. This is the same protection and immunity as a Justice of the High Court: Administrative Appeals Tribunal Act 1975 (Cth), s 60. This immunity, which includes immunity from suit and compulsion to give evidence, will prevent any adverse inference being drawn from a failure by a member of the tribunal to give evidence: Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601, paras 25, 118, 196-199. The rule extends to a failure to give evidence in relation to any aspect of the decision-making process including whether or not the tribunal had read, obtained, considered or taken into account particular documents: Herijanto v Refugee Review Tribunal [2000] HCA 49 ; (2000) 170 ALR 379.


case_text: may be that the appellant seeks to distinguish between inferences that may be drawn from the tribunal's failure to give evidence that it had received the part B documents and inferences that may be drawn from the department's failure to give evidence that it had provided the tribunal with these documents. While s 435(1) does not in terms apply to anyone other than members of the tribunal, Gaudron J said in Herijanto v Refugee Review Tribunal (No 2) [2000] HCA 21 ; (2000) 170 ALR 575 at [10] that the protection and privilege conferred by s 435(1) of the Act must extend 'not merely to disclosure by the individual member concerned, but [also to] the revelation, by whatever means, of any aspect of his or her decision-making process'. It follows that the Department's failure to give evidence cannot attract a Jones v Dunkel inference.


case_text: and this is the third point, the appellant contends that it was open to the first respondent to prove that the tribunal had received the part B documents and the first respondent chose not to lead evidence on this point. Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 permits the drawing of the inference that the documents were not provided. It may be that the appellant seeks to distinguish between inferences that may be drawn from the tribunal's failure to give evidence that it had received the part B documents and inferences that may be drawn from the department's failure to give evidence that it had provided the tribunal with these documents. While s 435(1) does not in terms apply to anyone other than members of the tribunal, Gaudron J said in Herijanto v Refugee Review Tribunal (No 2) [2000] HCA 21 ; (2000) 170 ALR 575 at [10] that the protection and privilege conferred by s 435(1) of the Act must extend 'not merely to disclosure by the individual member concerned, but [also to] the revelation, by whatever means, of any aspect of his or her decision-making process'. It follows that the Department's failure to give evidence cannot attract a Jones v Dunkel inference.


case_text: are at least two reasons why the appellant cannot use the agreed statement of facts in this way. First, and most obviously, the fact that the department may not have provided the tribunal with part B documents in other cases is irrelevant here. Each case must be decided on its own facts. Second, the appellants submission fails to take into account the nature and object of agreed facts which, like pleadings, aim to narrow the issues to be tried in a particular action: see by way of analogy Laws v Australian Broadcasting Tribunal [1990] HCA 31 ; (1990) 170 CLR 70, 85-86. The admissions are not transportable to other proceedings.


case_text: appellant is a male Tamil-speaking Muslim from Sri Lanka. He came to Australia on a passport and student visa issued to his brother. He applied for a protection visa under s 36 of the Migration Act 1958 (Cth) claiming that he was a refugee to whom Australia owed protection obligations under the Refugees Convention. The application for a protection visa was refused by a delegate of the Minister. The delegate's decision was affirmed by the Refugee Review Tribunal. The appellant later applied to the Minister under s 417 of the Act, seeking a more favourable decision. The Minister declined to exercise his powers under that section. The appellant then became a member of the group represented by the plaintiffs in Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601. When judgment in that case was handed down in favour of the plaintiffs, directions were given to enable the appellant to challenge the tribunal's decision based on the reasoning of the High Court. This he did in an application to the High Court for the issue of constitutional writs. The application was remitted to the Federal Court and in due course was transferred to the Federal Magistrates Court, where it was dismissed on its merits: M1014 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2005] FMCA 1652. The appellant now appeals that decision. The basis upon which the appellant sought a protection visa was that Sri Lankan authorities suspect him of being a supporter of the Liberation Tigers of Tamil Elam (LTTE). The appellant says that he fears being persecuted as a dissident if he returns to Sri Lanka. The appellant claimed that he was tortured and imprisoned by Sri Lankan authorities following the discovery, by police, of weapons stored at the house in which he lived. The weapons belonged to the LTTE. The appellant claimed that these weapons were stored, against his wishes, by his brother and a Tamil-Hindu friend. In its reasons, the tribunal found the appellant's claims that he was implicated in LTTE gun-smuggling, that he was threatened by the LTTE or its agents, that he was detained and mistreated by government security forces and that his brothers have been harassed on his account, to be 'contrived'. Amongst other things, the tribunal did not accept that LTTE operatives would entrust a Tamil-speaking Muslim with information about weapons. In support of this finding the tribunal referred to 'the radical political divide between Tamil-speaking Muslims and the LTTE'. The appellant applied for a writ of certiorari to quash the decision of the tribunal on the basis that the decision was affected by jurisdictional error. The appellant's complaint related to the procedures that were adopted by the tribunal in dealing with his application. As in Muin , the appellant contended that certain documents containing country information that were referred to in part B of the delegate's reasons for decision, and which are said to be favourable to the appellant's case, were not provided to the tribunal. The appellant alleged that as a result of correspondence he received from the tribunal to effect that '[the tribunal] would ask the Department for, and would look at, all of the material relating to [the appellant's] case', he was mislead into believing that the tribunal had considered the part B documents and, as a result, he had been denied the opportunity to put this information before the tribunal. Specifically, the appellant said that 'had [he known] that the tribunal had not looked at this material (especially the parts that would have helped [his] case) [he] would have tried to make sure that the tribunal was aware of that material.' The appellant claimed that this failure to accord natural justice constitutes jurisdictional error and constitutional writs should issue. In his reasons, the Federal Magistrate made four findings which were fatal to the appellant's case. First, the Federal Magistrate concluded that 'the credibility findings against the applicant clearly stand alone in relation to [his] application. They are not dependent upon whether or not the tribunal did or did not have in its possession the part B documents'. Second, the Federal Magistrate was satisfied, on the balance of probabilities, that the tribunal did in fact have the part B documents before it. Third, the Federal Magistrate found that the appellant had 'failed to identify with sufficient clarity favourable material within the part B documents which he may have drawn to the tribunal's attention...'. Fourth, the Federal Magistrate found that the appellant had not 'identified with any degree of certainty the manner in which he was mislead into believing that the tribunal had received and considered all of the part B documents'. As a result the Federal Magistrate dismissed the application. The question before this court is whether these findings were reasonably open to the Federal Magistrate. Moreover, if it was reasonably open to the Federal Magistrate to find, as he did, that the tribunal had the part B documents, the appellant's other grounds of appeal cannot succeed. The second basis upon which the appellant says the court should infer that the part B documents were not provided to the tribunal is the assertion that, at the time of the appellant's application to the tribunal, there was a 'practice of the Secretary... not to forward country information documents referred to in part B of the delegate's reason for refusal'. As evidence of this practice the appellant sought to rely on the agreed statement of facts in Muin in which it was agreed that the Department did not include copies of the part B documents in the file concerning the plaintiffs that was dispatched to the tribunal. The respondents do not make the same concession in this proceeding. This submission fails to take into account s 435(1) of the Migration Act 1958 (Cth). That section provides that ' a member [of the Refugee Review Tribunal] has, in the performance of his or her duties as a member, the same protection and immunity as a member of the Administrative Appeals Tribunal '. This is the same protection and immunity as a Justice of the High Court: Administrative Appeals Tribunal Act 1975 (Cth), s 60. This immunity, which includes immunity from suit and compulsion to give evidence, will prevent any adverse inference being drawn from a failure by a member of the tribunal to give evidence: Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601, paras 25, 118, 196-199. The rule extends to a failure to give evidence in relation to any aspect of the decision-making process including whether or not the tribunal had read, obtained, considered or taken into account particular documents: Herijanto v Refugee Review Tribunal [2000] HCA 49 ; (2000) 170 ALR 379.


case_text: In this proceeding, Walmbaar Aboriginal Corporation ("Walmbaar") applies under ss 50(2) and 61 (1) of the Native Title Act 1993 (Cth) ("the Act") for a determination of the compensation payable under the Act in respect of acts which are said to have either extinguished or significantly impaired or otherwise affected the native title rights and interests of the Dingaal People determined by the Court on 8 December 1997 ( Erica Deeral (on behalf of herself and the Gamaay Peoples) and others v Gordon Charlie and others [1997] FCA 1408 per Beaumont J). That determination is described as the Hopevale determination as, by its terms, the Court determined the native title rights and interests subsisting in 13 clans of indigenous people including the Dingaal People in land and waters on the eastern side of Cape York surrounding the community of Hopevale. The land the subject of the determination is described in the Deed of Agreement filed in support of the application for the Hopevale determination under s 87(1) of the Act as the "land and waters of the Hopevale Deed of Grant in Trust ('the dogit land'), to the high water mark" as detailed on a map attached to the Deed. It seems to be common ground that the land and waters of the Hopevale determination fall within Lot 35 on Crown Plan BS 222. Walmbaar is a registered native title body corporate in relation to the Hopevale determination, for the purposes of the Act (ss 253 and 193 (2)(e)) and is the prescribed body corporate and agent for the Dingaal People for the purposes of ss 57(2) and 57 (3) of the Act and the Hopevale determination. The "Rules" of the Walmbaar Aboriginal Corporation contain these provisions. INTERPRETATION 2. In these Rules - ... "Common Law Holders" means each of the persons set out in attached schedule "A" provided such persons are, and only whilst they remain, a member of the Corporation. Those listed in the schedule are all adult persons who hold native title under Federal Court determination QG 174 of 1997 , in the case of Deeral v Charlie . "DINGAAL COUNTRY" is land, waters, sea and islands traditionally owned by the Dingaal people, in the vicinity of Cape Flattery in far north Queensland; in accordance with the custom and tradition of the Dingaal people. "DINGAAL CLAN" and "DINGAAL People" and "DINGAAL community" mean all persons born of a Dingaal father, or Aboriginal children adopted by a Dingaal father. A "Dinagaal father" is a male person of patrilineal descent of the Baru, Yoren or Charlie families. "DINGAAL Family" means Yoren, and/or Baru and/or Charlie families of Hope Vale and their patrilineal descendants. "DINGAAL Elders" means a member[s] who demonstrate a consistency of attachment to DINGAAL issues and country; who demonstrate leadership; have extensive cultural knowledge; have knowledge of appropriate cultural behaviours; are politically aware; command respect in the DINGAAL community; and have knowledge and communication skills required to liaise between the Dingaal Community and wider State and Federal authorities; and who is nominated by a Dingaal family and accepted by the Dingaal Community and all existing Dingaal Elders (if any). There shall be a register of Elders maintained by the Public Officer. ... OBJECTS 6. The objects for which the Corporation is established are: (1) (i) The principal object of the Corporation is to act as agent for the Dingaal people in obtaining, holding and managing DINGAAL country; and (ii) To act as the Prescribed Body Corporate through which DINGAAL people can meet their duties and responsibilities for their country. (2) (i) This Corporation is established for the purpose of being the subject of a determination under Sections 56 & 57 of the Native Title Act . A purpose of this Corporation's existence is becoming a registered native title body corporate as set out under the Native Title Act (1993) and its Regulations. (ii) This Corporation shall act as agent of the common law holders in respect of matters relating to the native title; and (iii) Manage the native title rights and interests of the common law holders as authorised by the common law holders and perform any other functions in relation to the native title rights and interests as directed by the common law holders. ... (3) To secure legal tenure over DINGAAL country. (4) To form a Committee which can: (i) Service areas where Native title and Aboriginal tenure may be obtained; (ii) Conserve and manage Dingaal country. POWERS The Corporation shall, subject to the provisions of the Act, have power to do all such lawful things as may seem to the Committee necessary to carry out the objects of the Corporation. ... (1) In relation to the performance of its functions as a Prescribed Body Corporate, this Corporation shall make decisions regarding native title by notifying all common law holders of decisions to be made and after one week notice, convene a meeting of common law holders and obtain the consent of 75% of the common law holders in relation to the performance of its functions and changing of the Rules. (2) Consent of 75% of the common law holders will constitute the consent of the Dingaal Clan and this Corporation. [emphasis adopted by the Rules document] MEMBERSHIP (1) Membership of the Corporation shall be open to adult Aboriginal persons who are DINGAAL people as noted on a genealogical record kept by the Public Officer. A register of members for the time being shall be kept by the Public Officer. (2) The genealogical record of DINGAAL descendants kept by the Public Officer shall be certified by at least two (2) registered DINGAAL Elders and may only be amended by the Committee with the written consent of two registered DINGAAL Elders. The Elders Group shall confirm certifications of amendments to the genealogical record. If confirmation is not forthcoming, amendments shall be null and void. The Elders group shall confirm or deny certification within 30 days of receiving an application. (3) A member shall cease to be a member: (i) if that member shall die; (ii) if that member shall by notice in writing resign from membership. (4) From the date of incorporation the members on attached Schedule A are members of the corporation. ... COMMITTEE (1) Subject always to the control of the Corporation in General Meeting, the Committee shall manage and control the affairs of the Corporation in accordance with these Rules and with the Act [ Aboriginal Councils and Associations Act 1976 ] and for that purpose may exercise the powers of the Corporation as if they had been expressly conferred on the committee by a general meeting of the Corporation. (2) The members of the Committee (minimum five members) shall be elected at the first general meeting of the Corporation and ... thereafter at each annual general meeting and shall be eligible for re-election ... (3) A member of the Committee shall cease to hold office (i) if he dies, or (ii) ceases to be a member of the Corporation by resigning from the Corporation, or (iii) if he resigns his office, or (iv) under s.73 of the Act an administrator is appointed, or (v) if by reason of infirmity, absence or any other reason the Corporation is of the opinion that he has ceased to be an effective member of the Committee. SCHEDULE "A" WALMBAAR ABORIGINAL CORPORATION list of members and adult common law holders Rodney Yoren Kevin Yoren Mervin Yoren Belinda Yoren Margaret Gregory Vernon Yoren Elaine McGreen Susan Bally Christine Yoren Vernon (Ned) Yoren Alwyn Yoren Jacklyn Yoren Gary Yoren Eugene Yoren Roy Yoren Warren Yoren Grace Yoren Norris Baru Phillip Baru Amanda Baru Elaine Baru Margaret Baru Pam Baru Henry Baru Kenny Baru Rita Harrigan Phyllis Greenway Gordon Charlie Patricia Charlie Stanley Charlie Dan Charlie Louie Charlie John Charlie Allan Charlie These individuals listed in Schedule A are the leading members of the Baru, Yoren and Charlie families. Each of the indigenous respondents other than Brian Cobus is a member of Walmbaar. On 25 February 2002, Beaumont J made a further order in the Hopevale determination proceeding directing, by Order 5, that Walmbaar "is the prescribed body corporate which, after becoming a registered native title body corporate, will perform the functions mentioned in s 57(3) of the Native Title Act 1993 for the Dingaal Clan". The reason for the long delay between that order and the Hopevale determination of 8 December 1997 is not clear. Differences of opinion emerged between Gordon Charlie and others on the one hand and members of the Baru and Yoren families on the other as to whether the Dingaal People comprise descent members of the Baru and Yoren families notwithstanding the definitional matters contained in the Rules of Walmbaar ([16], Interpretation). For example, a notice convening a meeting for 21 June 2005 of "all Dingaalwarra and Biddi-Baru members" to be held at "Gungarde Office" in Cooktown was issued to Walmbaar members signed by Gordon Charlie at which meeting a resolution was to be proposed that Phillip Baru, Elaine McGreen and all Baru and Yoren members be expelled from Walmbaar and that "all Yoren and Baru descent members who are members of [Walmbaar] resign [their membership] as they belong to another clan and are not Dingaal clan descendents". The notice contained a pro forma notice of resignation and a commentary that Baru and Yoren family members are members of a separate clan called the Biddi-Baru clan. The meeting did not take place. Neither Phillip Baru nor Elaine McGreen nor any member of the Baru and Yoren families resigned their membership of Walmbaar. Consistent with the notion that Baru and Yoren family members form part of a different clan, steps were taken in 2005 to incorporate under the ACA Act a corporation described as Biddi-Baru Aboriginal Corporation which by rule 2 of its Rules defines native title holders in respect of relevant land as members of the Baru and Yoren families from the Cape Flattery area. Mr Testro, a legal officer employed by the Land Council, deposes in his affidavit that members of the Baru and Yoren families did not establish the Biddi-Baru Corporation; they continue to assert membership of Walmbaar on the footing that they are members of the Dingaal clan as recited in the Rules of Walmbaar; and they are seeking to establish who caused the new corporation to be formed on that footing.


case_text: position adopted in the notice signed by Gordon Charlie was consistent with Gordon Charlie's contentions before Cooper J in 2003 in Dingaal Tribe v State of Queensland and Ors [2003] FCA 999 that "under the traditional law and customs of the Dingaal people, he is the only person entitled, and thereby authorised, to make the claim for native title on behalf of the claim group" (at [14]). In that proceeding (QG6004 of 1998), Gordon Charlie and Jonathon Charlie as joint applicants sought a native title determination in respect of particular lands and waters on behalf of the Dingaal tribe. Gary Yoren, Ned Yoren, Elaine Baru and Louis Charlie applied pursuant to s 66B of the Act for an order that Yoren, Yoren and Baru replace Gordon Charlie and Jonathon Charlie as applicants on the footing that resolutions passed at a meeting at Hopevale on 14 April 2003 removed the authority of the existing applicants to maintain the claim on behalf of the claimant group. Cooper J found that notice of meeting had been given directly or indirectly to all members of the Dingaal claim group and that there was no traditional law or custom binding on the claim group preventing them from terminating the authority of Gordon Charlie and Jonathon Charlie (at [17] and [20]). Cooper J concluded that the authority of Gordon Charlie and Jonathon Charlie to continue to act as applicants had been withdrawn by resolution of the meeting of the Dingaal clan and accordingly orders were made replacing Gordon Charlie and Jonathon Charlie with Gary Yoren, Ned Yoren and Elaine Baru.


case_text: QG6004 of 1998 was a claim by the Dingaal People of native title rights and a claim of connection with Lizard Island and the islands offshore from Cape Flattery (and associated waters). On 28 February 2006, Dingaal clan members convened at the Church Hall in Hopevale to consider a presentation in relation to the claim by the National Native Title Tribunal, a report and presentation by a consultant anthropologist, Dr Fiona Powell, and a presentation on future tasks to be undertaken by the Land Council. The claim group members unanimously resolved to amend the claim to include other claimant groups asserting rights in relation to the land and waters, namely, the Thanil, Nguuruumungu, Gulaal, Ngaatha and Thittaar Peoples. That resolution made necessary an amendment to the application so as to alter the area of land and waters the subject of the claim and the composition of the claim groups. The Land Council sought to convene a meeting of Dingaal members on 31 October 2006 at 11.00am at Hopevale to authorise amendments to the native title application. Gordon Charlie sought to restrain the conduct of the meeting that morning on the footing that the Charlie family incorporates a sub-group family described as the Brim family and members of that family had not been invited to the meeting nor incorporated within the claim. The Brim family members were said to be in tension with the Baru and Yoren families. Gordon Charlie was unsuccessful in his application for an injunction ( Gordon Charlie v Cape York Land Council [2006] FCA 1418). The meeting did not proceed on 31 October 2006 due to the death of Mr Gary Yoren, an applicant member of the Dingaal claim group. The authorisation meeting was reconvened for 29 November 2006 and 30 November 2006 at Hopevale. Gordon Charlie sought to restrain the meeting on the morning of 29 November 2006. He did so based on the contention that the Baru and Yoren People are not part of the Dingaal clan. He contended that Brim family members are part of the Dingaal clan through Charlie family members and therefore seven identified members of the Brim family and some family members associated with some of those individuals, ought to have been invited to the meeting. Gordon Charlie contended that Brim family members ought to be joined in the claim; they derive their rights through identified Charlie clan members; and Baru and Yoren families are not members of the Dingaal clan. In that proceeding, Dr Fiona Powell swore an affidavit concerning her extensive anthropological research in relation to the Dingaal claim. Dr Powell said that she had revealed no evidence which suggested a connection between the Charlie family and the Brim family or connections on the part of the Brim family to the area claimed in the Dingaal application. Dr Powell identified the foundation for that view.


case_text: relevance of that proceeding for present purposes is simply that Gordon Charlie continued to assert a different composition of or foundation for the Dingaal clan notwithstanding the Hopevale determination and the terms recited in the Rules of Walmbaar adopted by Gordon Charlie and other Charlie family members. First, the Dingaal clan was said to properly embrace the Brim family and secondly, the Baru and Yoren families were said not to be part of the Dingaal clan. Gordon Charlie was unsuccessful in the injunction application ( Gordon Charlie v Cape York Land Council (No. 2) [2006] FCA 1683). In that proceeding, Gordon Charlie contended that a meeting of Dingaal native title clan members and some non-members took place at Cooktown at the "Lions Park" on 3 July 2005. The meeting was said to have passed a number of resolutions including a resolution that only Charlie family members have standing to maintain a Dingaal clan native title claim. The minutes of the contended meeting record the attendance of Vernon Yoren, Henry Baru, Elaine Baru, Phyllis Greenway (nee Baru) and Kevin Yoren. However, the evidence of a Hopevale Lutheran Minister, Reverend Jantke, who presided at the relevant burial services and who had possession of Lutheran Church records, demonstrated that all of those individuals had died well before 3 July 2005 which caused the Court to conclude that the minutes of the meeting and contentions in relation to the meeting were unreliable. That evidence, of course, was relevant only for the purposes of the proceeding in question. However, the fact of that controversy in that proceeding remains a relevant historical fact in explaining the subsequent chronology of events by which the resolution of the intra-indigenous issues concerning the composition of the Dingaal clan were sought to be resolved.


case_title: DPP v Webb [2000] NSWSC 859

case_text: decision to institute a proceeding to seek and obtain a compensation determination in relation to those matters identified particularly at Schedules E, I and J of the application, under the provisions of the Act, and the analysis in that proceeding of the amount of compensation by reference to just terms or the similar compensable interest test in respect of acts said to have either extinguished or significantly impaired or otherwise affected the native title rights and interests of the Dingaal People as determined by the Court on 8 December 1997, is a decision "regarding" native title. The scope of an application under s 50(2) can be seen in the criteria to be applied under s 51(1) for determining compensation. Section 51(1) provides that subject to subsection (3) the entitlement to compensation under Division 2, 2A, 2B, 3 or 4 is an entitlement on just terms to compensate the native title holders for any loss, diminution, impairment or other effect of the act on their native title rights and interests . A decision to commence a proceeding for compensation and engage, on behalf of the native title holders, an analytical process which seeks to identify any loss, diminution, impairment or other effect of an act on their native title rights and interests is necessarily a decision regarding native title for the purposes of Rule 9(1). The use of the word "regarding" in the context of the Rules and the functions to be performed by Walmbaar is necessarily a word of wide application. It is intended to have a wide application, in its context ( DPP v Webb [2000] NSWSC 859 at [17] to[29] per O'Keefe J). There is no sound basis for importing the definition of "native title decision" in Regulation 8(1) of the NT (PB) Regulations into the construction of the Rules of Walmbaar either directly or analogically. The scope and operation of Regulation 8(1) is discussed shortly. Accordingly, the decision to institute a compensation application ought to have been made in accordance with the decision-making requirements of Rule 9 of Walmbaar's Rules. The decision to commence proceedings was taken by the Committee of Walmbaar on 4 July 2006. There is simply no evidence of whether the common law members were given notice of the proposed decision; or of whether they expressed views about it or were engaged by the Committee in any formal or informal consultation process. The Committee members are not identified. Neither Gordon Charlie nor Ruth Schaefer filed any affidavit on the motion notwithstanding that each of them might have spoken directly to the events in issue. No minutes of the meeting are produced. Walmbaar has changed its position by, in effect, abandoning Gordon Charlie's original contention that the decision to commence the proceeding was the subject of a resolution of 75% of the common law holders obtained at a meeting on 3 July 2005. That position that was relied upon not only by Gordon Charlie in his affidavit sworn on 22 November 2006 but also by him on 11 February 2008 by reason of Mr Black's letter of that date asserting reliance on the resolution. Walmbaar contends in submissions that there are two decisions which confer authority to institute the application. The first is the resolution at the meeting on 3 July 2005 and the second is the decision of the Committee made on 4 July 2006. Walmbaar says that the only evidence concerning a vote by common law holders is the evidence of Gordon Charlie contained in his affidavit of 22 November 2006. However, the primary contentions of Walmbaar which are recited in Mr Black's letter, rather than the subject of an affidavit by Gordon Charlie as to the facts, place reliance upon the authority of the Committee and the decision it took on 4 July 2006. The Committee cannot act independently of the decision-making process contained in Rule 9. Rules 6(1) and 6(2) of Walmbaar's Rules which set out the objects taken in conjunction with Rule 12 which sets out the powers of the Committee, do not confer power upon the Committee to make decisions regarding native title without complying with Rule 9(1).


case_text: addition, the claim as framed goes beyond the land and waters the subject of the Hopevale determination. Before a determination as to compensation can be made by the Court in respect of relevant lands and waters, there must first be a determination of native title in relation to those lands and waters ( Jango and Ors v Northern Territory and Ors [2006] FCA 318 ; (2006) 152 FCR 150 per Sackville J; Jango v Northern Territory [2007] FCAFC 101 ; (2007) 159 FCR 531 at [66] [74] and [83] per French, Finn and Mansfield JJ). To the extent that the compensation application goes beyond the land and waters the subject of the Hopevale determination, it must necessarily fail. Walmbaar concedes that the compensation application would need to be amended to remove any claim in respect of Lot 9 on Crown Plan BS222 Lot 10 on Crown Plan BS224 and Lot 11 on Crown Plan BS268.


case_title: Jango v Northern Territory [2007] FCAFC 101 ; (2007) 159 FCR 531


case_text: of the kind sought by the applicant have been previously made ( Kennedy v Queensland (2002) 190 ALR 707; Deniliquin Local Aboriginal Land Council [2001] FCA 609 ; Peter Hillig in his capacity as administrator of the Worimi Local Aboriginal Land Council v Minister for Lands for the State of NSW [2005] FCA 1712 ; Peter Hillig in his capacity as administrator of the Worimi Local Aboriginal Land Council v Minister for Lands for the State of NSW [2005] FCA 1713).


case_title: Kennedy v Queensland (2002) 190 ALR 707


case_title: Peter Hillig in his capacity as administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of NSW [2005] FCA 1712


case_title: Peter Hillig in his capacity as administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of NSW [2005] FCA 1713


case_title: Allanson v Midland Credit Ltd and Anor (1977) 30 FLR 108

case_text: The affidavit evidence discloses that there are intricate factual and legal matters, involving numerous parties, arising in the Supreme Court proceedings. This Court may grant leave under s 58(3) of the Bankruptcy Act if it considers that the issues would be better and more comprehensively dealt with by a contested trial of the action in the Supreme Court than would be the case if the applicants were required to lodge a proof of debt in respect of the bankrupt estate: see Allanson v Midland Credit Limited and Anor (1977) 30 FLR 108 at 114 per Bowen CJ, Riley and Deane JJ; Macquarie Bank Ltd v Bardetta and Ors (2005) 216 ALR 670 at [19]-[21] per Conti J.


case_title: Macquarie Bank Ltd v Bardetta and Ors (2005) 216 ALR 670


case_text: For these reasons, the Court considers that leave should be granted. The applicants seek that leave be granted effective from 26 July 2005. This Court has power to make a nunc pro tunc order: see Re Veghelyi; Smith and Ors v Official Trustee in Bankruptcy (1993) 45 FCR 413. Accordingly, the Court will make the orders as sought. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 4 July 2006 Counsel for the Applicant: P W Flynn Solicitor for the Applicant: Blake Dawson Waldron Counsel for the Respondents: The respondents did not appear. Date of Hearing: 7 June 2006 Date of Judgment: 7 June 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/852.html


case_text: It seems to me, therefore, that the principles which were stated by McHugh J in Re The Minister for Immigration and Ethnic Affairs of the Commonwealth; Ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622 at 624-625 apply. That is to say, the Court does not embark upon a hypothetical trial to determine what the result of the application would have been. Whilst it is true that in certain circumstances the Court can make an order for costs where proceedings have not proceeded to trial, the usual rule will be that there be no order as to costs; see also Chapman v Luminis Pty Ltd [2003] FCAFC 162 at [7] .


case_title: Re BPTC Ltd (in liq) (1993) 10 ACSR 756

case_text: The principles which relate to the production of documents for examination of an examinee under the provisions of the Corporations Act were dealt with by Bryson J in Re BPTC Ltd (in liq) (1993) 10 ACSR 756. His Honour referred to earlier authority which recognised the need for a relation between the order for production of documents and the purposes of examining persons under the then s 597. His Honour also observed at page 763 that "[an] order for production of documents which had the effect of compelling a production of documents which were not required for the examination would [...] be oppressive". 12 At page 766, his Honour remarked that it would not be appropriate in the case of a mandatory order directed to a person to perform stated acts that the validity of the order should be saved by some process of severance. He pointed out that it is unlikely the judicial officer who made the order would have intended that some severable part of the order would be valid if other parts of it were not valid. Thus, the contemplation must be that the whole of the order would stand in view of the consequences of failure to comply with such an order. 13 It does seem to me that in light of the observations of Bryson J in Re BPTC there is some force in Mr Thawley's submission that the category of documents sought by [4] was so broad that it could not have been necessary for the proper conduct of the proposed examination of the affairs of Allstate. 14 Mr Thawley conceded that [4] included documents relevant to the examinable affairs of Allstate but he submitted that its terms were not confined to relevant documents. I do not accept that the terms of the order were so broad that they extended beyond the examinable affairs of Allstate. Mr Thawley's concession must clearly be correct, particularly in light of the fact that Mr Thawley has not had access to the confidential affidavit which gave rise to the orders of the Registrar made on 1 September 2006. 15 Mr Lee, for the applicants, submitted that it is plain from the exchange of correspondence and the concession made on 15 September to which I have referred, that the applicants were prepared to limit the scope of production in a sensible manner. Whilst I think that is correct, nonetheless, it seems to me that in the absence of any actual agreement between the parties to limit the scope of [4] by the deadline of 22 September, Mr Trevor and BankWest had to file their applications on that day. 18 In my view, it is plain that Mr Trevor and BankWest needed to obtain an order in terms of [1] of their interlocutory applications. This is because, without access to the confidential affidavit, it would have been difficult, if not impossible, for them to properly address the Court on the question of whether the production order infringed the principles referred to by Bryson J in Re BPTC . 19 Thus, whether or not an order for access to the confidential affidavit was the primary relief that was sought, it was an essential part of each of the applications and without determining that issue, I cannot determine what the result would have been. It may well be that the result would have been adverse to Mr Thawley's clients.