case_title: Playboy Enterprises International Inc v You Tao Hong (2004) 63 IPR 533 , (2004) AIPC 92-030 , [2004] FCA 1205

case_text: I have been referred to the decision of Lindgren J in Playboy Enterprises International Inc v You Tao Hong (2004) 63 IPR 533 , [2004] AIPC 92-030 , [2004] FCA 1205 , where his Honour considered the question as to whether mere importation is use as a trade mark such as to constitute infringement. His Honour concluded the answer to that question was yes, based upon a line of authority to which he referred, and he further concluded that it was appropriate to make declarations of infringement where established. In those circumstances, and bearing in mind the absence of the respondent, I am satisfied that the orders proposed should be made. 4 I should say something as to the order for costs, being a lump sum order, which is authorised by O 62 in appropriate circumstances. I am satisfied that the circumstances are appropriate for a lump sum order. Bearing in mind that the respondent has not appeared, and that the task of taxation would involve yet further costs, expense and time, I am also satisfied on the evidence that the quantum is reasonable in the circumstances. I therefore make the declarations and orders in the form I have initialled and placed with the papers. I further order that the exhibits handed up at today's hearing exhibit A and confidential exhibit RN2 be returned instanter. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 17 July 2008 Solicitor for the Applicants: Mr P Kerr of Allens Arthur Robinson The Respondent did not appear Date of Hearing: 15 July 2008 Date of Judgment: 15 July 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1053.html


case_outcome: applied

case_text: there is no requirement imposed upon the Tribunal to afford a party any opportunity to comment upon proposed findings that it may make: WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 per French J, as His Honour then was, at [36]. There is no such obligation imposed by the common law: Scorgie v Minister for Immigration and Citizenship [2007] FCA 2046 , 47 AAR 314 , applying F Hoffman-La Roche & Company AG v Secretary of State for Trade and Industry [1975] AC 295 at 369 per Diplock LJ. Nor does " information " for the purposes of s 424A " encompass the Tribunal's subjective appraisals, thought processes or determinations ": SZEEU , supra , at [206]. In SZBYR , supra , Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ observed (citations omitted): [18] ... if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information": does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc. If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself. See also Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 at [16] per Emmett, Kenny and Jacobson JJ; SZIWL v Minister for Immigration and Citizenship [2007] FCA 1260 at [20] to [21] per Siopis J.


case_title: Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83


case_outcome: cited

case_text: essential purpose of s 424A is to provide " a statutory procedural analogue to the common law of procedural fairness " although " the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice ": VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [24] , [2004] FCAFC 123 ; 206 ALR 471 at 476 to 477 per Finn and Stone JJ. In Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 , 113 FCR 396 Allsop J likewise observed: [104] The evident purpose of s 424A is to play its part in the provision of a procedural analogue to the common law of procedural fairness. I think s 424A should be looked at with a purpose in mind of ensuring that the claimant is fairly informed of information adverse to his or her case (in the manner described by the section) so that investigation may be made, and steps may be taken, somehow, if possible, to meet it. The extent of particulars of any information should be looked at in a common sense way in the context of the matter in hand and with fairness to the applicant in mind. A consideration of these matters is obviously affected by the chosen approach of the Tribunal. Particulars of information need to be provided to the applicant so that the applicant understands what is the relevant information to the review. This very much depends upon what the Tribunal takes to be relevant ...


case_title: Scorgie v Minister for Immigration and Citizenship [2007] FCA 2046 , 47 AAR 314


case_text: manner in which s 424A is to be construed and applied has been discussed in many other decisions of this Court (e.g. SZLPO v Minister for Immigration and Citizenship (No 2) [2009] FCAFC 60 , 108 ALD 303 ; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 , 150 FCR 214 ; SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198 , 164 FCR 578) and by the High Court (e.g. SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 , 96 ALD 1). And in SZBYR , supra , although the correctness of the decision of the Full Court in SZEEU was assumed, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ concluded (references omitted): [17] ... The statutory criterion does not, for example, turn on "the reasoning process of the Tribunal", or "the Tribunal's published reasons". The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense ("would be") rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance — and independently — of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review. Reference was thereafter made, with approval, to the observations of the Full Court of this Court in VAF , supra . In SZMHD, supra , Jacobson J observed that the question as to whether s 424A(1) is engaged is to be determined in advance of and independently of the Tribunal's reasoning on the facts of the particular case: [2009] FCA 712 at [46] , citing SZBYR , supra , at [17] and [22]. In SZMNP v Minister for Immigration and Citizenship [2009] FCA 596 at [38] , Jacobson J referred to there being " some tension in the authorities as to what use, if any, can be made of the Tribunal's written reasons in determining whether s 424A(1)(a) was enlivened ". His Honour accepted that in light of the decision in SZBYR " the question is to be determined in advance of, and independently from, the Tribunal's reasoning ". And there is no requirement imposed upon the Tribunal to afford a party any opportunity to comment upon proposed findings that it may make: WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 per French J, as His Honour then was, at [36]. There is no such obligation imposed by the common law: Scorgie v Minister for Immigration and Citizenship [2007] FCA 2046 , 47 AAR 314 , applying F Hoffman-La Roche & Company AG v Secretary of State for Trade and Industry [1975] AC 295 at 369 per Diplock LJ. Nor does " information " for the purposes of s 424A " encompass the Tribunal's subjective appraisals, thought processes or determinations ": SZEEU , supra , at [206]. In SZBYR , supra , Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ observed (citations omitted): [18] ... if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information": does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc. If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself. See also Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 at [16] per Emmett, Kenny and Jacobson JJ; SZIWL v Minister for Immigration and Citizenship [2007] FCA 1260 at [20] to [21] per Siopis J.


case_title: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 [2006] FCAFC 2 ; , 150 FCR 214

case_text: manner in which s 424A is to be construed and applied has been discussed in many other decisions of this Court (e.g. SZLPO v Minister for Immigration and Citizenship (No 2) [2009] FCAFC 60 , 108 ALD 303 ; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 , 150 FCR 214 ; SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198 , 164 FCR 578) and by the High Court (e.g. SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 , 96 ALD 1). In SZEEU , supra , Allsop J observed that an assessment as to " whether the Tribunal has complied with s 424A(1) requires close attention to the reasons of the Tribunal, because it is the information that the Tribunal considers relevant that must be assessed in order to see whether, prior to the decision being made, it would be the reason or a part of the reason for affirming the decision ". And in SZBYR , supra , although the correctness of the decision of the Full Court in SZEEU was assumed, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ concluded (references omitted): [17] ... The statutory criterion does not, for example, turn on "the reasoning process of the Tribunal", or "the Tribunal's published reasons". The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense ("would be") rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance — and independently — of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review. Reference was thereafter made, with approval, to the observations of the Full Court of this Court in VAF , supra . In SZMHD, supra , Jacobson J observed that the question as to whether s 424A(1) is engaged is to be determined in advance of and independently of the Tribunal's reasoning on the facts of the particular case: [2009] FCA 712 at [46] , citing SZBYR , supra , at [17] and [22]. And there is no requirement imposed upon the Tribunal to afford a party any opportunity to comment upon proposed findings that it may make: WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 per French J, as His Honour then was, at [36]. There is no such obligation imposed by the common law: Scorgie v Minister for Immigration and Citizenship [2007] FCA 2046 , 47 AAR 314 , applying F Hoffman-La Roche & Company AG v Secretary of State for Trade and Industry [1975] AC 295 at 369 per Diplock LJ. Nor does " information " for the purposes of s 424A " encompass the Tribunal's subjective appraisals, thought processes or determinations ": SZEEU , supra , at [206]. In SZBYR , supra , Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ observed (citations omitted): [18] ... if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information": does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc. If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself. See also Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 at [16] per Emmett, Kenny and Jacobson JJ; SZIWL v Minister for Immigration and Citizenship [2007] FCA 1260 at [20] to [21] per Siopis J.


case_outcome: affirmed

case_text: present purposes, the Tribunal which last considered the delegate's decision again affirmed the decision not to grant the visa sought. An application seeking review of that decision was filed in the Federal Magistrates Court on 5 November 2008. On 16 April 2009 that Application was rejected: SZFQY v Minister for Immigration and Citizenship [2009] FMCA 395. The Appellant now appeals to this Court. The Notice of Appeal as filed on 5 May 2009 relevantly states: GROUNDS OF APPEAL: His honour committed an error of law in dismissing that the decision involved a jurisdictional error of law involving an incorrect interpretation of the applicable law to the facts of the case found by the Refugee Review Tribunal. The Tribunal decision was an improper exercise of the power conferred by the Migration Act or the regulations. The Tribunal breached its obligations under S.424A (1) of the Act. The Tribunal made a number of findings to reject my claims. The Tribunal did not discuss with me the Independent Information or give me an opportunity, to provide an explanation in relation to those findings. ... Alternatively, the Tribunal's obligations under s.424A(1)(b) encompass the giving of particulars as to the derivation of adverse evidence which might affect a consideration of whether the information is reliable, since those particulars inherently assist a proper understanding of the relevance of the adverse evidence to the Tribunal's review. These Grounds of Appeal were further supplemented by a written Outline of Submissions filed by the Appellant on 23 July 2009. Those written submissions state in part as follows (without alteration): The Tribunal did not explain in its decision that what kind of knowledge it was expecting from the applicant. The Tribunal also set a level for political activities for the applicant and the Tribunal did not inform the applicant which level of activities it was expecting and the Migration Act 1958 (the Act) does say any about what the Tribunal mentioned in its decision, so the applicant was not able to satisfy the Tribunal and the Tribunal made a jurisdictional error in this regard The submissions also refer to specific findings as made by the Tribunal and assert that there has been a denial of an opportunity to address those findings. The Appellant appeared before this Court on 5 August 2009 unrepresented, although he did have the benefit of an interpreter. At the outset of the hearing he appeared to read from a document and made oral submissions as to why his Appeal should be allowed. He was unable, however, to provide any assistance as to what was intended to be embraced within the oral submissions he was advancing. Clearly the document had been prepared by someone else. Such a course does little either to advance such merits as an appellant's case may have or to assist the Court. Although there is some uncertainty in the grounds expressed in the Notice of Appeal , as supplemented by the written submissions, it is considered that the Tribunal has not committed any jurisdictional error and, more importantly, that there is no appellable error in the reasons for decision of the Federal Magistrate. The " applicable law " to which the Appellant refers in his Grounds of Appeal is not further identified, nor is there any further clarification of the " power " to which reference is also there made. This contention was rejected by the Federal Magistrate: [2009] FMCA 395 at [11] . If this is the " applicable law " and the " power " to which the Appellant intended to refer in his Notice of Appeal , the Federal Magistrate was correct to reject the contention. The now Appellant was invited to attend a hearing to be held before the Refugee Review Tribunal on 6 June 2008. The Appellant, by his representative, indicated that he did in fact wish to attend and on 24 May 2008 his representative forwarded to the Tribunal a detailed " dossier ". An " amended statement " signed by the now Appellant was forwarded to the Tribunal on 3 June 2008 and on 4 June 2008 a " submission " was also forwarded. The hearing before the Tribunal then took place on 6 June 2008.


case_title: SZIWL v Minister for Immigration and Citizenship [2007] FCA 1260


case_text: manner in which s 424A is to be construed and applied has been discussed in many other decisions of this Court (e.g. SZLPO v Minister for Immigration and Citizenship (No 2) [2009] FCAFC 60 , 108 ALD 303 ; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 , 150 FCR 214 ; SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198 , 164 FCR 578) and by the High Court (e.g. SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 , 96 ALD 1).


case_text: manner in which s 424A is to be construed and applied has been discussed in many other decisions of this Court (e.g. SZLPO v Minister for Immigration and Citizenship (No 2) [2009] FCAFC 60 , 108 ALD 303 ; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 , 150 FCR 214 ; SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198 , 164 FCR 578) and by the High Court (e.g. SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 , 96 ALD 1). Nor is there considered to be any breach of s 424A by failing to give " particulars as to the derivation of adverse evidence ". It is not at all apparent whether the Appellant was intending to confine this contention to " particulars " as to the derivation of the independent country information or " particulars " as to the evidence relied upon when making the series of adverse findings set forth elsewhere in the Tribunal's reasons for decision. Either way, the contention is without substance. While the source of information is a factor that must be put to an applicant in certain circumstances ( SZLPO , supra ), the facts of this case do not give rise to such an obligation on the part of the Tribunal. The source of the country information has been identified; the adverse findings were findings as to credit and an assessment as to evidence advanced by the now Appellant. Although not referred to in the Notice of Appeal , the Appellant's written submissions finally assert a breach of s 424AA of the 1958 Act. This was not a Ground relied upon before the Federal Magistrate and it should not now be allowed to be pursued on appeal. It is in any event a ground without apparent substance. The fundamental difficulty confronting the Appellant is the simple fact that the Tribunal did not accept the case being advanced. The Tribunal did not accept that the Appellant had any significant political involvement in the Awami League and did not accept that he had been subjected to extortion or attack for reasons of his political opinion. Central to the rejection of his claims was the assessment by the Tribunal that his claims were " vague and unsubstantiated by relevant details ". These were all findings of fact open to the Tribunal and essentially based upon the material being advanced by the now Appellant. The Appellant has not been denied such procedural fairness as is set forth in the 1958 Act. He has been given a fair opportunity to advance his case. Fairness does not require an opportunity to further dissuade the Tribunal from making findings adverse to him. There has been no breach of s 424A.


case_title: SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 , 174 FCR 415

case_text: no letter was forwarded to the now Appellant pursuant to s 424A, there has been no denial of any opportunity " to comment on or respond to " (s 424A(1)(c)) the information relied upon by the Tribunal in making its findings. " Clear particulars " of the information to be relied upon had been given to the now Appellant when attending before the Tribunal (s 424A(2A)). Section 424A(2A) relieves the Tribunal of the obligation to give particulars of information to an applicant or to invite him to comment on or respond to information " if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information ...". Sections 424A and 424AA " are intended to be complementary ": SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 at [2] , [2009] FCAFC 46 ; 174 FCR 415 at 417 per Moore J. See also [2009] FCAFC 46 at [106] , 174 FCR at 436 per Tracey and Foster JJ.


case_outcome: considered

case_text: the terms of s 424A make clear, the particulars required by s 424A(1) must be given in writing: s 424A(2). But s 424A(2A) creates an exception to s 424A(1) in that the Tribunal is not obliged to give written particulars of all information if the Tribunal gives clear particulars of the requisite information to the applicant at a hearing to which he has been invited under s 425. See also SZMHD v Minister for Immigration and Citizenship [2009] FCA 712 at [11] to [15] per Jacobson J. It is understood that the Appellant now seeks to contend that there has been a breach of s 424A essentially by reason of: (i) an alleged failure to " discuss ... Independent Information "; (ii) an alleged failure to provide " an opportunity, to provide an explanation in relation to " findings made by the Tribunal; and/or (iii) a failure to provide him with " particulars as to the derivation of adverse evidence which might affect a consideration of whether the information is reliable... ". The " findings " to which reference is made are not further identified, nor is the " independent information ". It has been assumed, however, that the reference to " findings " is a reference to each adverse finding made by the Tribunal and that the " information " is a reference to independent country information that was available to the Tribunal. And in SZBYR , supra , although the correctness of the decision of the Full Court in SZEEU was assumed, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ concluded (references omitted): [17] ... The statutory criterion does not, for example, turn on "the reasoning process of the Tribunal", or "the Tribunal's published reasons". The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense ("would be") rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance — and independently — of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review. Reference was thereafter made, with approval, to the observations of the Full Court of this Court in VAF , supra . In SZMHD, supra , Jacobson J observed that the question as to whether s 424A(1) is engaged is to be determined in advance of and independently of the Tribunal's reasoning on the facts of the particular case: [2009] FCA 712 at [46] , citing SZBYR , supra , at [17] and [22].


case_text: SZMNP v Minister for Immigration and Citizenship [2009] FCA 596 at [38] , Jacobson J referred to there being " some tension in the authorities as to what use, if any, can be made of the Tribunal's written reasons in determining whether s 424A(1)(a) was enlivened ". His Honour accepted that in light of the decision in SZBYR " the question is to be determined in advance of, and independently from, the Tribunal's reasoning ".


case_text: and as further correctly concluded by the Federal Magistrate, the independent country information was not in any event information which falls within the ambit of s 424A(1): s 424A(3)(a). Section 424A(3)(a) provides that s 424A does not apply to information " that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member ". Rejected has been a contention that the phrase " just about a class of persons of which the applicant or other person is a member " is another criterion of exemption: QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [12] per Lander J (Dowsett and Hely JJ agreeing). The nature of the country information here in issue fell within s 424A(3)(a).


case_title: VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 , 206 ALR 471

case_text: essential purpose of s 424A is to provide " a statutory procedural analogue to the common law of procedural fairness " although " the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice ": VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [24] , [2004] FCAFC 123 ; 206 ALR 471 at 476 to 477 per Finn and Stone JJ. In Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 , 113 FCR 396 Allsop J likewise observed: [104] The evident purpose of s 424A is to play its part in the provision of a procedural analogue to the common law of procedural fairness. I think s 424A should be looked at with a purpose in mind of ensuring that the claimant is fairly informed of information adverse to his or her case (in the manner described by the section) so that investigation may be made, and steps may be taken, somehow, if possible, to meet it. The extent of particulars of any information should be looked at in a common sense way in the context of the matter in hand and with fairness to the applicant in mind. A consideration of these matters is obviously affected by the chosen approach of the Tribunal. Particulars of information need to be provided to the applicant so that the applicant understands what is the relevant information to the review. This very much depends upon what the Tribunal takes to be relevant ... And in SZBYR , supra , although the correctness of the decision of the Full Court in SZEEU was assumed, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ concluded (references omitted): [17] ... The statutory criterion does not, for example, turn on "the reasoning process of the Tribunal", or "the Tribunal's published reasons". The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense ("would be") rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance — and independently — of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review. Reference was thereafter made, with approval, to the observations of the Full Court of this Court in VAF , supra . In SZMHD, supra , Jacobson J observed that the question as to whether s 424A(1) is engaged is to be determined in advance of and independently of the Tribunal's reasoning on the facts of the particular case: [2009] FCA 712 at [46] , citing SZBYR , supra , at [17] and [22]. And there is no requirement imposed upon the Tribunal to afford a party any opportunity to comment upon proposed findings that it may make: WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 per French J, as His Honour then was, at [36]. There is no such obligation imposed by the common law: Scorgie v Minister for Immigration and Citizenship [2007] FCA 2046 , 47 AAR 314 , applying F Hoffman-La Roche & Company AG v Secretary of State for Trade and Industry [1975] AC 295 at 369 per Diplock LJ. Nor does " information " for the purposes of s 424A " encompass the Tribunal's subjective appraisals, thought processes or determinations ": SZEEU , supra , at [206]. In SZBYR , supra , Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ observed (citations omitted): [18] ... if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information": does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc. If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself. See also Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 at [16] per Emmett, Kenny and Jacobson JJ; SZIWL v Minister for Immigration and Citizenship [2007] FCA 1260 at [20] to [21] per Siopis J.


case_title: WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912


case_outcome: referred to

case_title: Alterskye v Scott [1948] 1 All ER 469

case_text: Insofar as the respondents rely upon Glencore International AG v Selwyn Mines (recs and mgrs apptd) and Others [2005] FCA 801 ; (2005) 223 ALR 238 at [11] per Lindgren J, the Court observes that such decision is authority for the principle that the Court cannot make an order for discovery against a third party. The respondents' submission, however, does not relate to the extent of the Court's power to make an order for preliminary discovery, but rather relates to the TCF's intention to use the documents produced in consequence of such an order for the purpose of commencing a proceeding against a third party. Although Glencore at [11] does not support such a submission, the Court observes that it is settled law that any such use of discovered documents to commence a proceeding against a third party would constitute an abuse of the Court's procedures: see Home Office v Harman [1981] 2 WLR 310; Science Research Council v Nassé [1978] ICR 777 at 781; Alterskye v Scott [1948] 1 All ER 469.


case_outcome: distinguished

case_text: The respondents claim that they have not breached the alleged duty of care that they may have owed to the TCF and rely upon the decision in Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd and Another [2007] FCA 1216 ; (2007) 164 FCR 450. 26 The Court considers that Dartberg is distinguishable on its facts. In Dartberg the party that sought discovery under O 15A r 6 of the Rules identified negligence as its principal cause of action. Accordingly Middleton J was required to consider, inter alia, whether such a claim was sustainable. In considering that question Middleton J was required to determine whether a duty of care may have existed and whether there was any evidence before the Court that such duty had been breached. 27 In the present proceeding the TCF identified its possible causes of action against the respondents as arising under the Fair Trading Act 1987 (NSW) and the Trade Practices Act 1974 (Cth). In determining the sustainability of those foreshadowed actions the Court is not required to consider whether a duty of care may have been owed by the respondents to the TCF or whether such duty had been breached. 28 The TCF has not identified an anticipated claim in negligence against the respondents. Accordingly any findings of the Court as to whether a duty of care may have been owed by the respondents to the TCF and whether such duty was breached would be superfluous to the Court's consideration of the TCF's application under O 15A r 6 of the Rules.


case_text: Insofar as the respondents rely upon Glencore International AG v Selwyn Mines (recs and mgrs apptd) and Others [2005] FCA 801 ; (2005) 223 ALR 238 at [11] per Lindgren J, the Court observes that such decision is authority for the principle that the Court cannot make an order for discovery against a third party. The respondents' submission, however, does not relate to the extent of the Court's power to make an order for preliminary discovery, but rather relates to the TCF's intention to use the documents produced in consequence of such an order for the purpose of commencing a proceeding against a third party. Although Glencore at [11] does not support such a submission, the Court observes that it is settled law that any such use of discovered documents to commence a proceeding against a third party would constitute an abuse of the Court's procedures: see Home Office v Harman [1981] 2 WLR 310; Science Research Council v Nassé [1978] ICR 777 at 781; Alterskye v Scott [1948] 1 All ER 469. 38 Relying upon the observations of Lindgren J in Glencore at [15], the respondents submit that the TCF has an obligation not to withhold information for the purpose of satisfying O 15A r 6(b) of the Rules. 39 The respondents observe that the legal advisers of the TCF attended the offices of PPB Chartered Accountants & Business Reconstruction Specialists ('PPB'), the liquidators of Orient, and inspected 18 boxes of documents of Orient's primary records. The respondents submit that there is no evidence before the Court as to the nature of the documents reviewed or what, if anything, those documents disclosed of relevance to the respondents. The respondents also submit that Mr Humphreys has given no indication of the nature of his enquiries. Accordingly, it is submitted that the Court cannot be satisfied that the TCF has made 'all reasonable inquiries' under O 15A r 6(b) of the Rules nor be satisfied under such paragraph that the TCF does not have 'sufficient information to enable a decision to be made whether to commence proceeding' against either of the respondents. 40 The Court observes that in his preliminary report Mr Humphreys informed the solicitors for the TCF of the nature and results of his enquiries. Accordingly it is erroneous for the respondents to submit that Mr Humphreys has provided no indication of what enquiries were made. 41 As to the 18 boxes of documents 'reviewed and analysed' by the TCF's legal advisers, the Court observes that the TCF is only required to place before the Court 'the evidence already available to it relevant to the sufficiency of the information it possesses to enable a decision to be made whether to commence a proceeding' : see Glencore at [15]. The information must be relevant to the TCF's decision whether to commence a proceeding in order for such requirement to be activated. 42 From the 18 boxes of documents the TCF's legal advisers identified two files that subsequently formed the basis for Mr Humphreys' preliminary report. The Court infers from such actions that the legal advisers considered that only those two files contained relevant information for the purposes of determining whether to commence a proceeding against the respondents. Contrary to the respondents' submission, the information contained in such files was identified in Mr Humphreys' preliminary report. 43 Against this factual background it is not apparent that any relevant evidence has been withheld by the TCF as claimed. 44 The respondents refer to the principle that preliminary discovery will only be ordered by the Court to the extent necessary to overcome the insufficiency of information already possessed by the applicant after the making of all reasonable inquiries: see Glencore at [13]. It is submitted that there is no evidence that any act or omission on the part of any person during the 2005 financial year would have had any bearing upon Orient's insolvency in March 2007 or upon any loss allegedly suffered by the TCF. The respondents submit that any order for preliminary discovery should accordingly be limited to documents pertaining to the 2006 financial year. 45 This submission overlooks the very purpose of the preliminary discovery process. The documents are sought to enable the TCF to determine whether there has been an act or omission in the preparation of Orient's accounts which could found a possible cause of action. It is not for the respondents to make such a determination based on the material in their possession. 46 The respondents also submit that the third category of documents referred to in the schedule to the application calls for the production of the general ledger of Orient for the 2005 and 2006 financial years. However, the TCF's evidence reveals that it obtained such documents from PPB 'in about November 2007' . The respondents submit that the production of those documents is accordingly unnecessary. 48 The preliminary discovery process is intrusive in nature (see Glencore at [15]), and accordingly the Court should approach any application for such discovery with caution. However, the Court has found that there is reasonable cause to believe that the TCF has or may have the right to obtain relief against either or both of the respondents. The Court considers that the production of the documents (excluding the third category of documents referred to above) will assist the TCF to determine whether any possible action exists against the respondents and may assist the TCF to plead any case against the respondents with particularity. Alternatively, such documents may establish that the TCF has no case against the respondents. The Court concludes that the respondents should make preliminary discovery to the TCF confined to the documents referred to in the Orders. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 17 December 2008 Counsel for the Applicant: Mr Austron Solicitor for the Applicant: McCabe Terrill Lawyers Counsel for the Respondents: Mr Saunders Solicitor for the Respondents: Moray & Agnew Solicitors Date of Hearing: 16 September 2008 Date of Judgment: 17 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1912.html


case_title: Home Office v Harman [1981] 2 WLR 310


case_title: Science Research Council v Nassé [1978] ICR 777


case_text: In a test case relating to the ACM breeding project, Vincent v Federal Commissioner of Taxation [2002] FCAFC 291 ; (2002) 124 FCR 350; 193 ALR 686, the Full Court of the Federal Court held that management fees and interest claimed as deductions by another of the investors Ms Vincent, were on capital account. They had been outlaid essentially for the acquisition of calves under the scheme. Being on capital account they were not deductible. There was therefore no tax benefit obtained through the project, albeit it had been determined to be a Pt IVA scheme by the Commissioner. In the reasons for disallowing the objection to the amended assessments, the Commissioner referred to Vincent's case. The penalties imposed on Mr Starr and Mr Hopkins respectively were 10 per cent of the tax shortfall and 50 per cent of the tax shortfall. 4 The Commissioner said in his reasons for disallowing Mr Starr's objection: ' (2) Further Remission of the penalty and interest imposed is not warranted (a) In our view deductions claimed by you in relation to ACM Breeding Project are not allowable under subsection 51(1) and therefore section 226L would apply as the purported deductions arose in relation to a tax avoidance scheme. (b) The rates of penalty that apply under section 226L are 50% of the amount of the primary tax applicable to the adjustment or, if it is reasonably arguable that the deduction claimed was correctly allowable, 25% of the primary tax applicable to the adjustment. (c) After having given consideration to any additional information or individual circumstances provided in your letter of objection we have decided it is still appropriate to maintain the flat rate of 10%. (d) There are no rights of objection under the Taxation Administration Act 1953 ("TAA") against interest payable under the Income Tax Assessment Act 1936 (section 170AA) and/or the TAA (the General Interest Charge). However in the course of determining your objection we have reviewed the interest payable and concluded that no remission is warranted. If you are dissatisfied with our decision in relation to the interest you may apply to have the decision reviewed under the Administrative Decisions (Judicial Review) Act 1977 .' A similar statement was made by the Commissioner in relation to the penalty and interest applicable to Mr Hopkins. In his case the penalty was fixed at the flat rate of 50 per cent of the amount of the primary tax applicable to the adjustment. That level of penalty was fixed pursuant to s 226L and, unlike Mr Starr's case, was not reduced by the discretionary remitter available under s 227 of the ITAA. 5 Mr Starr and Mr Hopkins both sought review, in the Administrative Appeals Tribunal (the Tribunal), of the decision of the Commissioner disallowing their objections. The issue on review was confined to the level of penalty. On 19 August 2005, the Tribunal affirmed the decisions under review. Messrs. Starr and Hopkins then filed notices of appeal against the Tribunal's decision in the original jurisdiction of this Court pursuant to the provisions of the Administrative Appeals Tribunal Act 1975 (Cth). For the reasons that follow, I am of the view that their appeals are made out, that the Tribunal's decision should be set aside and the objections allowed. 19 It was accepted by Messrs. Starr and Hopkins in their Outlines of Facts and Contentions submitted to the Tribunal that: 1. By the making of the various Scheme Arrangements and the various steps and transactions carried out pursuant to the Scheme Arrangements, their participation in ACM constituted a scheme for the purposes of s 177A of Pt IVA of the ITAA. 2. Because they claimed as deductions project costs of $35,832 that Mr Starr incurred and $23,888 which Mr Hopkins incurred, and because those deductions were not allowable under s 51(1) of the ITAA, as the Full Court found in Vincent [2002] FCAFC 291 ; 124 FCR 350 , the applicants each had a shortfall within the meaning of s 222A of the ITAA. 3. For the purposes of s 226L(b) of the ITAA the tax shortfall was caused by each of the two applicants, in a taxation statement (s 222A of the ITAA), treating an income tax law as applying in relation to the scheme in a particular way. 4. For the purposes of s 226L(d) of the ITAA, none of the scheme sections as defined by s 222A applies in relation to the scheme. The penalties which were imposed on Messrs Starr and Hopkins were imposed pursuant to s 226L of the ITAA. 20 No oral evidence was given before the Tribunal. The decision was made upon the affidavits and upon papers lodged with the Tribunal by the Commissioner. There was no cross-examination on the affidavits. Affidavit evidence filed on behalf of the applicants comprised the following: 1. The affidavit of Kevin Phillip Sleight sworn 3 March 2005. Mr Sleight described himself as Mr Starr's financial adviser. He introduced Mr Starr to the ACM project in June 1996. He recalled Mr Starr was very interested in the commercial aspects of the ACM project and primarily concerned with making an investment that would increase his income in retirement. Mr Sleight's sole purpose in recommending that Mr Starr invest in the project was to increase his wealth from profits from sale of cattle under the project. The commission that Mr Sleight received as a result of Mr Starr entering into the project was not contingent on Mr Starr receiving a tax deduction. 2. The affidavit of Rodolfo Del Carlo sworn 3 March 2005. Mr Del Carlo is an accountant and as Mr Hopkins' financial adviser recommended the ACM project to him. He said that his sole purpose in introducing Mr Hopkins to the project was for Mr Hopkins to make a profit. He received a commission as a result of the investment but the commission was not contingent on Mr Hopkins claiming or receiving a tax deduction. 3. The affidavit of Donald St Clair Starr sworn 8 March 2005 . Mr Starr said that before investing in the ACM project he had discussions with Mr Sleight about the cost of entry and the length of time it would take him to derive an income stream from the project. He said he was 51 years old at that time and wanted to retire early. He had no previous experience in cattle breeding but was encouraged by the fact that the Poll Hereford breed of stud cattle was being used as he knew them to be of a very high quality. Although he had given some consideration to the availability of tax deductions for the various expenses of the project, this was not the dominant reason or purpose behind his eventual decision to enter into it. His main concern related to the profit projections and whether it would be possible to make a sizeable profit from his investment. If he had thought the project would not have been profitable he would not have invested irrespective of the potential for tax deductions. He made cash payments of $12,909 to the project. 4. The affidavit of Gary Kevin Hopkins sworn 9 March 2005 . Mr Hopkins said that before investing in the ACM project he had discussions with Mr Del Carlo about the investment. He read the relevant information booklet. The most important aspects of the project so far as he was concerned were the income projections contained on pages 16 and 17 of the information booklet. He was aware at the time that the prices being received at cattle sales were going through a prosperous period. He was also aware of the high quality of the Poll Hereford breed of stud cattle to be used in the project. He said he considered the projections of profit of approximately $12,600 per two cows to be profitable and worthwhile and realistic at the time that he invested. He said that his ability to claim tax deductions for various expenses related to the project was a factor he had considered before investing in it, but not the main reason or purpose behind his decision to invest. He said tax implications are always taken into account, but the obtaining of a substantial profit was his main objective and the profit projections were the most important part of his assessment. He said that if he had not believed that the project would be profitable he would not have entered into it. He made cash payments of $8,640 to the project. There was no other affidavit material before the Tribunal. 21 The applicants accepted, before the Tribunal, that the relevant outgoings were on capital account reflecting the conclusion reached by the Full Court in Vincent [2002] FCAFC 291 ; 124 FCR 350 . It was not in dispute that for the purposes of s 226L(d) of the ITAA none of the "scheme sections" applied in relation to the participants in ACM. The Tribunal said (at [34]): 'However, schemes defeated under the primary provisions of the income tax legislation still have to satisfy the conditions of section 226L before a penalty by way of additional tax applies. One of those conditions, and the one most relevant in this case, is that the particular scheme was a " tax avoidance scheme " for the purposes of section 226L(c) of the ITAA. Pursuant to section 226L, the rates of penalty that apply are 50% of the amount of primary tax applicable to the adjustment, or if it is reasonably arguably that the deduction claimed was correctly allowable, 25% of the primary tax applicable to the adjustment.' 22 The Tribunal then considered whether the ACM breeding project was a tax avoidance scheme within the meaning of the definition of that term in s 224(2). It was conceded on behalf of the applicants that the project was a scheme within the meaning of Pt IVA and accordingly within the terms of s 177A of the ITAA. In the end the Tribunal's decision about the application of the penalty under s 226L depended upon whether the "sole or dominant purpose" referred to in s 224(2) was to be assessed as a subjective purpose or an objective and, I interpolate, attributed, purpose. 23 The Tribunal observed that Pt IVA requires the purpose of a scheme to be assessed objectively. So much flows from the language of s 177D which applies when the taxpayer has obtained a tax benefit and "it would be concluded that the person or one of the persons who entered into or carried out the scheme ... did so for the purpose of enabling the relevant taxpayer to obtain a tax benefit in connection with the scheme". The Tribunal accepted the submission on behalf of the Commissioner that the language of s 224(2) indicated that an examination of the objective facts and circumstances surrounding the scheme was necessary and that this "tied in with the objective inquiry required in Pt IVA". 24 The Tribunal found that the ACM scheme was a tax avoidance scheme in terms of s 224(2) of the ITAA entered into or carried out with the sole or dominant purpose of enabling the participants and, in this case, the applicants, to pay no tax or less tax. Section 226L therefore applied. The applicants had not provided any evidence that their involvement in the ACM scheme was objectively different from the facts and circumstances ruled upon by the Federal Court in the case of Vincent [2002] FCAFC 291 ; 124 FCR 350. Accordingly, the Tribunal found the applicants had not "discharged their onus". 25 The questions of law said to be raised on the appeal against the Tribunal's decision did not define with precision the issue thrown up by the grounds. The central issue emerging from the grounds of the appeal was whether the Tribunal erred in law in holding that s 224(2) does not involve an inquiry into the subjective purposes of the taxpayers concerned. 26 It was contended in the grounds of appeal that the Tribunal ought to have found that: '(i) The test for determining whether a scheme is a "tax avoidance scheme entered into or carried out for the sole or dominant purpose of enabling a person to pay no tax or less tax" within the meaning of section 224(2) of the ITAA involves an inquiry into the subjective purpose of those who entered into or carried out the scheme; and in this case the Applicants, and the promoters of the Active Cattle Management Scheme. (ii) The Applicants' unchallenged evidence supported a finding that they each had a dominant purpose of investing in the Active Cattle Management Scheme to make a profit and that paying no tax or less tax was not their dominant purpose. (iii) The findings of the Full Court in Vincent v Commissioner of Taxation [2002] FCAFC 291 ; (2002) 124 FCR 350 [at 373] supported a finding that the dominant purpose of the promoters of the Active Cattle Management Scheme was to make a profit and was not to enable the Applicants to pay no tax or less tax. (iv) That the Active Cattle Management Scheme was not a tax avoidance scheme for the purposes of section 224(2) of the ITAA, and that the Applicants did not fall within section 226L of the ITAA, and were not liable to pay penalties as imposed by the Respondent.' 27 In each case the applicants seek an order that the decision made by the Tribunal be set aside and that their objections be allowed in full. 46 In this case the tax shortfall arose because the taxpayers treated money expended on their investment in the ACM project as deductible expenditure on revenue account. It was, in the light of the Full Court decision in Vincent [2002] FCAFC 291 ; 124 FCR 350 , capital expenditure and therefore not deductible. That characterisation did not depend upon the status of the ACM project as a scheme to which Pt IVA applied within the meaning of s 177D. 47 The schemes in relation to which s 226 applied were tax avoidance schemes within the meaning of s 224. The definition of "tax avoidance scheme" in s 224(2) had two elements. The first was that it be "a scheme within the meaning of Part IVA". That picked up the definition of "scheme" in s 177A. Importantly, a "scheme within the meaning of Part IVA" was not thereby "a scheme to which Pt IVA applies". The latter category is defined in s 177D and is a subclass of schemes within the meaning of Pt IVA. It is limited, inter alia, by the requirement that "it would be concluded that the person, or one of the persons who entered into the scheme or any part of the scheme did so for the purpose of enabling the relevant taxpayer to obtain a tax benefit in connection with the scheme ...". The section does not require an inquiry into the actual mental state of the taxpayer or anybody else concerned with the scheme but rather into what "would be concluded" about purpose after consideration of the eight factors listed in the section. 48 In determining the nature of the inquiry into the purpose referred to in the definition of "tax avoidance scheme" in s 224(2) it is important not to be distracted by s 177D. That section, unlike s 224(2), is concerned with what "would be concluded" about the purpose of those entering into a scheme having regard to the eight listed factors. That inquiry differs from the inquiry mandated by s 224(2). It defines the field of considerations from which an attribution of purpose can be made. It does not extend to actual states of mind. 53 In my opinion, the Tribunal erred in law in excluding consideration of the stated purposes of Messrs Starr and Hopkins. Their statements were not contested. They were not inherently improbable. The Tribunal came to a contrary conclusion evidently based upon that reached by the Federal Court in Vincent [2002] FCAFC 291 ; 124 FCR 350 about the application of Pt IVA . 54 It seems that in this case the Tribunal reached its conclusions about the relevant purpose upon the apparent assumption that the statements of the taxpayers, Messrs Starr and Hopkins, were irrelevant. In my opinion, however, there is no point in remitting these matters to the Tribunal as the evidence about the taxpayers' actual purposes in entering the schemes was not contested by the Commissioner. In the circumstances, the decisions of the Tribunal will be set aside and the objections allowed. The parties will be given liberty to apply for any necessary consequential orders. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 23 January 2007 Counsel for the Applicant: Mr M McCusker QC and Mr D Romano Solicitor for the Applicant: Wilson & Atkinson Counsel for the Respondent: Ms H Symon SC and Ms L Price Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 17 July 2006 Date of Judgment: 23 January 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/23.html


case_text: The notion of objective intention in contract was discussed in Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8 ; (2002) 209 CLR 95 (at [25]): 'Although the word "intention" is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.' 33 There are two ways of regarding the identification of intention in the contractual context. One is as a process of inference constrained because it excludes from consideration evidence of what the parties say their mental states were. The other is as a process of attribution. The latter is probably the more accurate characterisation. 34 The fictional mental states of corporations are attributed rather than ascertained. A corporation is a fictitious legal person. It exists only in a kind of virtual reality created by the law. In order to allocate rights and liabilities the law treats a corporation as though it has a mind and as though that mind has mental states. So a corporation may have purpose. And although it is an attributed purpose because the corporation is a fictitious person, its purpose may be assessed subjectively or objectively.


case_text: Despite the use of "purpose" in s 4D of the Trade Practices Act as an attribute of the provisions defining exclusionary contracts, arrangements or understandings and despite its attribution to corporations, it has been treated as amenable to subjective inquiry. In News Ltd v South Sydney District Rugby League Football Club Ltd [2003] HCA 45 ; (2003) 215 CLR 563, Gleeson CJ said (at [18]): 'In a case such as the present, it is the subjective purpose of News and ARL in including the 14-team term, that is to say, the end they had in view, that is to be determined.' Although at the same time: 'The manifest effect of a provision in an agreement, in a given case, may be the clearest indication of its purpose.' McHugh J, quoted with approval from Lord Devlin's observation in Chandler v Director of Public Prosecutions [1962] UKHL 2 ; [1964] AC 763, (at [39]): 'A purpose must exist in the mind. It cannot exist anywhere else. The word can be used to designate either the main object which a man wants or hopes to achieve by the contemplated act, or it can be used to designate those objects which he knows will probably be achieved by the act, whether he wants them or not.' His Honour went on (at [40]): 'But in some cases in the case of legislative purpose, for example the tribunal of fact must attribute a purpose to an artificial or notional mind that is deemed responsible for some act or omission. In such contexts, the tribunal of fact deduces the purpose of the artificial or notional person from the background of the act or omission including relevant statements and what was done or not done. Similarly, when legislation refers to the purpose of a provision, it is not absurd to regard the legislature as referring to the purpose in the notional mind of those responsible for the provision. In such cases, the test must inevitably be an objective test.'


case_title: Chandler v Director of Public Prosecutions [1962] UKHL 2 ; [1964] AC 763


case_text: On the basis of long-standing authority McHugh J adopted the approach that the relevant purpose was the actual, ie, subjective purpose even though it was a subjective purpose attributable to a corporation. That conclusion was not inconsistent with the proposition that even though it is the subjective mental state of a person that is to be attributed, objective evidence about the likely effect of the person's conduct may be the best evidence. The statements of parties about their purposes will often be treated with reserve: Dowling v Dalgety Australia Ltd (1992) 34 FCR 109; ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 1) (1990) 27 FCR 460 at 483.


case_title: ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 1) (1990) 27 FCR 460


case_title: Eastern Express Pty Ltd v General Newspapers Pty Ltd (1992) 35 FCR 43; 106 ALR 297

case_text: Section 46 has a different structure which prohibits a corporation from engaging in conduct "for the purpose of" any one of the specified anti-competitive results and it is not surprising that the inquiry into such purpose is into the subjective purpose, albeit it is the subjective purpose attributable to a corporation: Eastern Express Pty Ltd v General Newspapers Ltd (1992) 35 FCR 43 at 66; 106 ALR 297.


case_text: Section 47(10)(a) speaks of a circumstance in which the engaging by a corporation in conduct "has the purpose...". This is more readily amenable to a subjective construction of purpose than s 4D and has been so construed: Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193 ; (2003) 131 FCR 529. What has to be shown in such a case is "the actual purpose of the relevant respondent". But as the Full Court said of direct evidence from parties as to their purposes (at [256]): '... it will normally be critically scrutinised; it is often ex post facto and self-serving.' 42 In my opinion these authorities are consistent with the proposition that the law should generally be construed according to the ordinary meaning of the words it uses having regard to their context and legislative purpose. Where a mental state is referred to it should be construed as an actual mental state unless the context indicates a constructive or attributed mental state. 43 The conditions necessary to attract penalty tax under s 226L established by that provision were as follows: 1. The taxpayer has a tax shortfall for a year. 2. The shortfall was caused in whole or in part by the taxpayer treating an income tax law as applying in relation to a scheme in a particular way. 3. The scheme was a scheme within the meaning of Pt IVA that was entered into for the sole or dominant purpose of enabling a person to pay no tax or less tax. 4. The scheme is not one in relation to which ss 224, 225, 226 or 226AA apply.


case_text: The purpose of s 226 was referred to by Ryan J in Krampel Newman v Commissioner of Taxation [2003] FCA 123 ; (2003) 126 FCR 561 at [120] where his Honour quoted with approval an observation by counsel based on the Explanatory Memorandum that: '... s 226L is intended to apply the same level of penalty as s 224, 225 and 226 for schemes entered into for the sole or dominant purpose of avoiding tax, but in respect of which the Commissioner has not applied any of the anti-avoidance provisions because the schemes are ineffective under the ordinary provisions of the ITAA eg s 51.'


case_text: The language of s 224(2) may be contrasted in this respect with that of the former s 260, the ill-fated general anti-avoidance section. That section applied to "[e]very contract, agreement or arrangement ..." "so far as it has or purports to have the purpose or effect of in any way, directly or indirectly ....", inter alia, "defeating, evading or avoiding any duty or liability imposed on any person by this Act." In Newton v Federal Commissioner of Taxation [1958] HCA 31 ; (1958) 98 CLR 1, the Privy Council took an objective approach to the assessment of purpose under that provision and quoted with approval what Williams J had said in the High Court (at 8): 'The purpose of a contract, agreement or arrangement must be what it is intended to effect and that intention must be ascertained from its terms. These terms may be oral or written or may have to be inferred from the circumstances but, when they have been ascertained, their purpose must be what they effect.' The Privy Council said that the opening words of the section showed that it was not concerned with "the motives of individuals". However the language used in s 260 differed significantly from that of s 224 which refers to the "entry into or carrying out" of a scheme for the sole or dominant purpose of tax avoidance. See generally as to the relationship between s 260 and Pt IVA: Parsons, Income Taxation in Australia (Law Book Co, 1985) at 16-24 to 16-30. 52 It is to be recalled that s 226L was a penalty provision. The fact of entry into a tax avoidance scheme was a necessary condition of the imposition of the penalty for which it provided. If the purpose of penalties is to secure compliance with the tax laws, they may ordinarily be expected to be concerned with the conduct and purposes of defaulting taxpayers. That is to say their actual conduct and actual purposes. It is difficult to see why if two constructions of s 224(2) be available that construction should be adopted which would permit the imposition of a penalty by reference to a purpose which the taxpayer never had. Of course, purpose could be assessed even under s 224(2) by reference to objective factors. It may also be that the statements of individual taxpayers about their purposes relevant to the imposition of penalty would be given little weight. But the relative weight and extent of subjective and objective evidence relevant to that determination will be an accident of the particular proceedings in which the question arises. In this case the evidence of the taxpayers and the advisors was unchallenged.


case_text: this is a case where the entitlement of the appellant to complain of a possible denial of procedural fairness would depend upon whether there was evidence that he was misled: cf Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1 at [34] . It seems to me that the finding of the Federal Magistrate, set out at [44] above, that the appellant responded to the Tribunal without any misapprehension, forecloses the possibility of any valid complaint. Indeed, this is reinforced by the Federal Magistrate's observations, referred to at [45] above, about the appellant's attempts to mislead the Tribunal. It follows that the appeal must be dismissed with costs. I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 2 July 2009 The First Appellant appeared in person. Counsel for the First Respondent: Mr J. Mitchell Solicitor for the First Respondent: DLA Phillips Fox Date of Hearing: 10, 13 and 25 February 2009 Date of Judgment: 2 July 2009 ANNEXURE A ANNEXURE B AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/712.html


case_text: SZMNP v Minister for Immigration and Citizenship [2009] FCA 596 at [52] - [53] , I expressed the view that the effect of the authorities is that the word "considers" in s 424A(1)(a) is directed at the subjective consideration of the Tribunal on the facts of each case; it is for the court to determine objectively whether the Tribunal considered the information to be dispositively relevant; see also Applicant VEAL of 2002 v Minister for Immigration and Multicultural Affairs and Another [2005] HCA 72 ; (2005) 225 CLR 88 at [12] . The information in the present case was quite different from that which was considered by the High Court in VEAL. In that case, an informant's letter was adverse to the applicant and contained information that was "credible, relevant and significant". Here, the equivocation about Mr Liu's involvement was not of that character. The information that was adverse was that Mr Liu had been held legally responsible for supply false certificates. The appellant was given full opportunity to deal with this.


case_text: any event, the information in the email that it was not clear whether Mr Liu was implicated, was not "adverse" information within the test stated by Brennan J in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 628-629.


case_text: SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198 ; (2007) 164 FCR 578 at [33] , a Full Court drew attention to the word "considers" in s 424A(1). Their Honours said that the effect of this is that s 424A(1) is only enlivened where the Tribunal forms the opinion that particular information would be the reason or part of the reason for affirming the decision under review. In MZXQB v Minister for Immigration and Citizenship [2008] FCA 319 ; (2008) 166 FCR 483 at [27] , Heerey J described the test as one of "dispositive relevance".


case_text: question of whether s 424A(1) was engaged is to be determined in advance, and independently of the Tribunal's reasoning on the facts of the particular case; the need for "unbundling" of the Tribunal's reasons is "correspondingly reduced": SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 235 ALR 609 at [17] , [22].


case_title: SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198 ; (2007) 164 FCR 578


case_text: SZMNP v Minister for Immigration and Citizenship [2009] FCA 596 at [52] - [53] , I expressed the view that the effect of the authorities is that the word "considers" in s 424A(1)(a) is directed at the subjective consideration of the Tribunal on the facts of each case; it is for the court to determine objectively whether the Tribunal considered the information to be dispositively relevant; see also Applicant VEAL of 2002 v Minister for Immigration and Multicultural Affairs and Another [2005] HCA 72 ; (2005) 225 CLR 88 at [12] .


case_outcome: followed

case_text: question of whether s 422B(3) imposes a substantive obligation of fairness was considered by a Full Court in Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83, the decision in which was handed down immediately before the publication of these reasons. The effect of that decision is to dispose of the present appeal adversely to the appellant. This is because the Full Court held at [16]-[18] that s 422B(3) did not qualify the express statement in s 422B(1) that Div 4 contains an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. As the Full Court said in SZMOK , at [16], s 422B(3) is not a free standing obligation; it draws content from the other provisions of Div 4. It therefore cannot require s 424A to be interpreted as imposing an obligation not found to exist on the proper construction of that section. Here, there is nothing in s 424A which would have required the Tribunal to provide the full text of the email that was supplied to it by the Chinese speaking staff member to the appellant.


case_text: The first respondent further submitted that the Federal Magistrate was entitled to rely upon the decision of Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1 for the proposition that the Tribunal is not required to examine evidence about international standards of State protection. 26 The first respondent submitted that, in any event, it was unnecessary for the Tribunal to consider the issue of State protection at all, because the Tribunal had already found that there was no real chance of the appellant being harmed in the future. In those circumstances, the issue of State protection did not arise: Respondents S152/2003 222 CLR 1 per McHugh J at [84]-[88]; SVTB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 104 at [22] - [23] .


case_text: The first respondent submitted that the assertion raised by the appellant in the third ground of appeal that the Tribunal committed jurisdictional error by stating that the appellant had "fabricated aspects of his claim to enhance his application" was raised for the first time on the appeal. Nevertheless, the first respondent submitted that the authorities mentioned in the particulars by the appellant (being Rares J's decisions of SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 at [60] - [64] and SZEOP v Minister for Immigration and Citizenship [2007] FCA 807 at [24] ) were irrelevant to this case. The first respondent further submitted that it was open to the Tribunal, for the reasons it gave, to find that the applicant had fabricated aspects of his claim to enhance his application for a protection visa. 34 It is not claimed in this ground of appeal that the Tribunal was under an obligation to give notice of any matter pursuant to s 424A of the Act. Rares J's decisions in SZGGT [2006] FCA 435 and SZEOP [2007] FCA 807 were concerned with the question of notice under s 424A. The third ground of appeal is not made out.


case_title: SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435


case_text: The first respondent submitted that, in any event, it was unnecessary for the Tribunal to consider the issue of State protection at all, because the Tribunal had already found that there was no real chance of the appellant being harmed in the future. In those circumstances, the issue of State protection did not arise: Respondents S152/2003 222 CLR 1 per McHugh J at [84]-[88]; SVTB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 104 at [22] - [23] .


case_text: That leave be granted to further amend pleadings, after examination of the first and second respondents in relation to the description of persons concerned with the printing production and publication of the newspaper know as the [C]atalyst.' 7 The applicant, who is self-represented, in the principal proceedings, seeks various claims for relief, for damages and declarations. He applies to the Court for damages for defamation pursuant to the Defamation Act 1889 (Qld), for breach of s52(1) of the Trade Practices Act 1974 (Cth), a compensation order pursuant to s1317H of the Corporations Act 2001 (Cth), for breach of the civil penalty provisions s232(2) , (4) and (6) pursuant to the Corporations Law 1999, for conspiracy to injure at common law, together with various ancillary declarations and orders. 8 The applicant alleges: '8 That between 19 August 1999 and 30 September 1999 [and in the proposed Amended Statement of Claim, (which I will return to later), from 19 August 1999 to 30 November 1999), the ... respondents... did agree and conspire with each other and other persons unknown to the applicant to injure to the applicant by unlawful means and to commit offences against the laws of the Commonwealth and the state of Queensland and to wit to defame and injure the applicant in the conduct of his business. So to conspire would constitute an offences under s29D of the Crimes Act 1914 pursuant to s11.5 of the Criminal Code 1995 (Cth), s543(1)(b)(d)(f) of the Criminal Code Act 1899 (Qld), (Cth); for which, if convicted the said respondents' would be liable to be imprisoned. Similar allegations were repeated in the next paragraph, concluding 'and to wit defraud the applicant and injure his economic well being ss52 , 75B91(d) and 79 (10)(e) of the Trade Practices Act 1974 , for which, if convicted the said respondents' would be liable to be imprisoned.' 9 The applicant claims that at all material times he conducted himself in the business as a public accountant under his own name at Burleigh Heads in Queensland. 10 The Statement of Claim continues that between the same dates, and at the same places, the same parties did proceed to implement those arrangements or understandings by writing, printing and causing to be published a document titled 'The Catalyst' Volume 1 Issue 1. The Statement of Claim refers to a story on the front page of that publication, which had the headline 'Sharples Money Trail Leads to Senior Liberal' . 11 The story asserted that there was an agreement by Tony Abbott, a Minister in the Federal Government, to fund an action which the applicant took in the Supreme Court of Queensland, relating to the validity of the registration of One Nation as a political party in Queensland, and further asserted that the applicant wrote to Mr Abbott, which letter, amongst other things, said 'Attached is a list of moneys I have expended on the cause and your personal cheque by return mail is requested in satisfaction thereof.' 12 The article further said 'This astounding hard evidence shows to what extent Abbott and the Liberal Party will go to force One Nation and Pauline Hanson out of politics. They have a lot to lose.' 13 The applicant alleges he 'has been injured in his personal and professional reputation and otherwise dammed '. He 'has suffered economic loss ' alleging a minimum of $700,000 and 'special damages ' alleging a minimum of $70,000. 14 It is necessary to consider the jurisdiction of this Court in a claim for defamation, brought under the Defamation Act 1889 (Qld). 15 The Federal Court of Australia Act 1976 (Cth), s 32 provides: '32 Jurisdiction in associated matters (1) To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked. (2) The jurisdiction conferred by subsection (1) extends to jurisdiction to hear and determine an appeal from a judgment of a court so far as it relates to a matter that is associated with a matter in respect of which an appeal from that judgment, or another judgment of that court, is brought'. 16 Under s 32 , this Court is empowered to determine the applicant's claim in defamation, if it is associated with a matter or matters that fall within the Court's jurisdiction. The question is whether the claim in defamation is 'associated' with the federal claims. 17 In Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 at 603 - 604, the majority (Mason, Murphy, Brennan and Deane JJ) said: 'On the other hand, particular legal proceedings may relate to part only of what should properly be seen as the one larger "matter". ... The concept of "matter" as a justiciable controversy, identifiable independently of the proceedings which are brought for its determination and encompassing all claims made within the scope of the controversy, was accepted by a majority of the court in [Philip Morris v Brown [1981] HCA 7 ; (1981) 148 CLR 457] Barwick CJ said (at 474): "It is settled doctrine in Australia that when a court which can exercise federal jurisdiction has its jurisdiction attracted in relation to a matter, that jurisdiction extends to the resolution of the whole matter. This accrued federal jurisdiction is not limited to matters incidental to that aspect of the matter which has, in the first place, attracted federal jurisdiction. It extends, in my opinion, to the resolution of the whole matter between the parties. This accrued jurisdiction carries with it the authority to make such remedial orders as are necessary or convenient for or in consequence of that resolution. For this purpose, the court exercising federal jurisdiction may enforce rights which derive from a non-federal source. This exercise of this jurisdiction, which for want of a better term I shall call 'accrued' jurisdiction, is discretionary and not mandatory, though it will be obligatory to exercise the federal jurisdiction which has been attracted in relation to the matter." 18 The majority continue (152 CLR 570 at 609 - 610): 'However, federal judicial power is attracted to the whole of a controversy only if the federal claim is a substantial aspect of that controversy. A federal claim which is a trivial or insubstantial aspect of the controversy must, of course, itself be resolved in federal jurisdiction, but it would be neither appropriate nor convenient in such a case to translate to federal jurisdiction the determination of the substantial aspects of the controversy from the jurisdiction to which they are subject in order to determine the trivial or insubstantial federal aspect. Again, impression and practical judgment must determine whether it is appropriate and convenient that the whole controversy be determined by the exercise of federal judicial power' 19 In Re Wakim; Ex parte McNally and Another [1999] HCA 27 ; (1999) 198 CLR 511, the High Court determined that the Federal Court is not competent to hear matters which are solely State matters. In my judgment, the constitutional 'matter' of the applicant's claim is the alleged agreement or conspiracy to publish the article in ' The Catalyst' which is set out in the Statement of Claim. This matter is not, in my view, one of which it can clearly be said to involve no federal aspect. I will therefore consider whether it is just to extend time to bring proceedings, notwithstanding the periods of limitation have expired. 20 The applicant claims against all of the respondents: 'Damages including aggravated and exemplary damages, together with interest pursuant to the Federal Court of Australia Act 1976 (Cth) and costs for; (a) breach of section 52(1) when read with s 6 (2) of the Trade Practices Act 1974 (Cth); (b) defamation pursuant to the Defamation Act 1889 (Qld); (c) criminal conspiracy to injure defame and defraud the applicant in his professional business; (d) breaches of for contravention of civil penalty provisions ss 232920(4)(5) and (6) as defined by s 1317DA of the Corporations Law 1999; (e) compensation order pursuant to section 1317H of the Corporations Act 2001 .' 21 During the hearing of this Motion, the applicant admitted that the essence of his claim was defamation. When asked by the Court, ' Are [the declarations sought] not simply dependent on your making good your claims in respect of defamation and other breaches of the trade practices and corporations laws? ', the applicant stated ' They don't stand apart from it, except perhaps the order for declaration, but I suppose that's tied to the defamation action in any case' . (emphasis added) 22 Further, in his affidavit dated 11 November 2005, the applicant said: '3. I was legally advised [in early March 2002] that the evidence of Mr. Ettridge was insufficient to found a claim for damages for defamation .' (emphasis added) 23 It is clear that a 'matter' may properly found a claim based on s 52 of the Trade Practices Act 1974 (Cth) and a claim for defamation. The Federal Court, per Bowen CJ, Lockhart and Fitzgerald JJ in Global Sportsman Pty Ltd & anor v Mirror Newspapers Ltd & anor ( ' Global Sportman') (1984) 55 ALR 25, said at 29: 'There is no definable boundary between conduct which is misleading or deceptive or likely to mislead or deceive and material which is defamatory. Material which is defamatory does not fall outside the operation of sub-s 52(1) of the Act merely for that reasons any more than it is brought within the operation of sub-s 52(1) by reason only that it is defamatory. If the operation of sub-s 52(1) was limited to exclude material because it was defamatory, not only newspaper publishers, but all corporations would be exonerated. Such a proposition would severely restrict the broad generality of s 52(1)...' 24 I referred to Global Sportsman in Lloyd's Ships v Davros (1987) 72 ALR 643 and noted, at 675: '...if a statement for which a corporation is responsible is made in trade or commerce and, if the statement contains or conveys a misrepresentation, the making of it will constitute conduct which is misleading or deceptive or likely to misled of deceive. The fact that the material is defamatory does not for that reason fall outside the operation of s 52, nor is it brought within the operation of s 52 because it is defamatory.' 25 Counsel for the respondents, Mr Tim Matthews, argued that in commencing proceedings on 3 October 2005, the applicant was out of time in relation to the claim for damages based on the (alleged) defamation. It was further submitted that the claims for breaches of the Trade Practices Act and Corporations Act are also out of time. 26 In the case of the tort of defamation, time starts to run at the date of publication. The Limitation of Actions Act 1974 (Qld) s 10(1)(a) provides: '10 Actions of contract and tort and certain other actions (1) The following actions shall not be brought after the expiration of 6 years from the date on which the cause of action arose-- (a) subject to section 10AA , an action founded on simple contract or quasi-contract or on tort where the damages claimed by the plaintiff do not consist of or include damages in respect of personal injury to any person;' 27 The original Statement of Claim was filed on 3 October 2005. The impugned conduct there is said to have occurred between 19 August 1999 and 30 September 1999. 28 Atkinson J gave Reasons for Judgment, in proceedings in the Supreme Court of Queensland on August 18, 1999, the effect of which led to the deregistration of Pauline Hansons' One Nation as a political party, pursuant to the Electoral Act 1992 (Qld). 29 O 13 of the Federal Court Rules provides the Court with power extend the time within which to bring a proceeding, notwithstanding it is statute barred. O 13 r 2(1) provides: '2(1) Subject to the following provisions in this rule, the Court may, at any stage of any proceeding, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding, in either case in such manner as the Court thinks fit. 2 (2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defence or error in any proceeding, or of avoiding multiplicity of proceedings. 2(3) Where an application to the Court for leave to make the amendment mentioned in sub-rules (4), (5) or (6) or paragraph (7)(a) is made after the relevant period of limitation current at the date of the commencement of the proceeding has expired, the Court may, nevertheless, grant such leave in the circumstances mentioned in that sub-rule if it thinks it is just to do so. 30 Federal Court Rules , O 13 r 3 allows for the amendment of pleading without leave: '3(1) A party may, without leave, amend any pleading of his once at any time before the pleadings are closed...' 31 Federal Court Rules , O 13, r 3(4) provides: '3(4) Subrule (3) does not permit an amendment that would have an effect inconsistent with any statute that limits the time within which an action or proceeding of a particular kind may be brought or instituted' 32 Federal Court Rules , O 13, r 5 provides for the disallowance of amendment: '5(1) If a party amends a pleading under sub-rule 3 (1), the Court may, subject to sub-rule (3), by order disallow the amendment...' 33 In the present circumstances, O 13 r 2(3) confers a discretion on the Court to extend the time within which to bring proceedings, from 30 September 2005 to 3 October 2005, 'if it thinks it is just to do so'. 34 The issue for the Court is whether the applicant should be permitted to rely on his new and extended allegation, yet to be pleaded, that, between 19 August and 30 November 1999, certain things happened. The applicant has provided no evidence explaining why this change in the period was introduced into the Statement of Claim. 35 On 14 November 2005 the Court gave the applicant leave to amend the Statement of Claim. Those Orders were as follows: 1. Leave is granted to the applicant to amend the principal proceedings to remove "Gympie Times Pty Ltd ACN 009 656 928" as fifth respondent in those proceedings. 2. Leave is granted to the applicant to amend the name of the fourth respondent in the principal proceedings to read "Ross Bensted" rather than "Ross Binstead".


case_title: Re Wakim; Ex parte McNally and Another [1999] HCA 27 ; (1999) 198 CLR 511


case_title: Global Sportsman Pty Ltd & anor v Mirror Newspapers Ltd & anor ( ' Global Sportman') (1984) 55 ALR 25


case_title: Lloyd's Ships v Davros (1987) 72 ALR 643