case_title: APN News & Media Ltd (2007) 62 ACSR 400

case_text: I discussed provisions of this kind in Re APN News & Media Ltd (2007) 62 ACSR 400 ( APN ) at [25]-[55], and indicated (at [55]) that it seemed to be desirable that applications under s 411(1) be supported by affidavit evidence directed to showing certain matters. 23 In the present case there are limited no-talk and no-shop provisions in cl 11 of the MIA and a break fee provision in cl 12 of the MIA. The "no-talk period" and "no-shop period" are defined to mean the period from 16 August 2007 until the earliest to occur of either 31 December 2007, the termination of the MIA in accordance with its terms, or the coming into effect under s 411(10) of the Act of the Court's Order under s 411(4)(b) approving the Scheme. Thus, the longest the period can be is from 16 August 2007 to 31 December 2007. I think I am entitled to take judicial notice of the fact that this period of some four and a half months is not unreasonably long by reference to the periods that one sees in similar provisions in schemes of the present kind. 24 The no-talk and no-shop provisions are related to the concept of a "Competing Proposal". There is a "fiduciary carve out" from the no-talk provision in cl 11.3 of the MIA. 25 By cl 11.4, CFI undertakes, during the no-shop period, to inform Sunsuper of any competing approaches made to CFI. 26 Importantly, Sunsuper has no relevant interest in shares in CFI (in contrast to the position that prevailed in APN 62 ACSR 400). Accordingly, there is no scope for an argument that Sunsuper used its position as a CFI shareholder with "representation" on CFI's Board of Directors, somehow to lock the CFI shareholders into the Scheme. 27 I turn now to the break fee for which cl 12 of the MIA provides. The amount of that fee is $1 million. As noted in APN 62 ACSR 400 at [48], the Takeovers Panel's Guidance Note 7, Lock-up Devices (2 nd issue, 2005) states (at [7.18]) that the Panel uses a guideline that a break fee should not exceed 1% of the "equity value" of the target, and for this purpose the equity value is the aggregate of the value of all classes of equity securities issued by the target. It will be recalled (see [8] above) that in the present case, the "equity value" of CFI is stated by Deloitte to lie between $104.8 million and $111 million. I note also that the aggregate consideration is $108,187,617.88 (135,573,456 shares x $0.798 per share). The break fee of $1 million dollars is below the 1% level. 28 By cl 12.1(c) of the MIA, CFI's Board of Directors acknowledged that it had received legal advice in connection with cl 12 and believed that the Scheme would provide benefit to CFI and CFI shareholders and that it was reasonable and appropriate for CFI to agree to the break fee in order to secure Sunsuper's participation in the transaction. 29 By cl 12.2(a) of the MIA, the parties acknowledged that the amount of $1 million represented "a genuine and reasonable pre-estimate of the transaction costs it [sic that] will have been incurred by Sunsuper". 32 In the circumstances I think that although affidavit evidence to the effect described by me in APN 62 ACSR 400 was not led (I remain of the view that affidavit evidence is desirable), I am entitled to infer, as I do, by reason of the terms of the MIA and the other circumstances referred to above, that the matters to which I referred in that case (at [55]) are established. 33 For the above reasons I made the orders referred to earlier for the convening of the Scheme meeting and approving the draft Scheme Booklet as the registered explanatory statement. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 24 October 2007 Counsel for the Plaintiff: Mr M B Oakes SC Solicitors for the Plaintiff Minter Ellison Counsel for Sunsuper Pty Ltd: Mr F Gleeson SC Solicitors for Sunsuper Pty Ltd: Jones Day Date of Hearing: 17 October 2007 Date of Judgment: 17 October 2007 Date of Publication of Reasons: 24 October 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1619.html


case_outcome: cited

case_text: 28 r 3 provides that when considering an application by a respondent for an order for security under s 56 , the Court may take into account the matters listed in that rule, including the fact "that an applicant is ordinarily resident outside Australia". Clearly, this does not limit the matters that the Court may take into account when exercising its jurisdiction under s 56: see to this effect Bell Wholesale Co. Ltd v Gates Export Corporation [1984] FCA 34 ; (1984) 2 FCR 1 at 2-3. Lodestar does not rely on s 1335 of the Corporations Act 2001 (Cth). Section 1335(1) provides that where a corporation is plaintiff in any action or other legal proceeding, the court having jurisdiction in the matter may, "if it appears by credible testimony that there is reason to believe that the corporation will be unable to pay the costs of the defendant if successful in his, her or its defence", require sufficient security to be given for those costs and stay all proceedings until the security is given. There is no express condition of this kind in s 56 of the FCA Act. While the prospect of an applicant's inability to satisfy an adverse costs order is obviously a relevant consideration, it is not a condition of the availability of the power conferred by s 56. Indeed, the present case is one in which I am satisfied that the applicants would be able to satisfy an adverse costs order, yet will order them to provide security.


case_text: Energy Drilling Inc. v Petroz N.L. [1989] ATPR 40-954 ( Energy Drilling) , Gummow J said (at p 50,422): The purpose of ordering security for costs against an applicant ordinarily resident outside the jurisdiction is to ensure that a successful respondent will have a fund available within the jurisdiction of this Court against which it can enforce the judgment for costs, so that the respondent does not bear the risk as to the certainty of enforcement in the foreign country and as to the time and complexity of the action there which might be necessary to effect enforcement : Kent Heating Ltd. V. Cook-on-Gas Products Pty. Ltd. & Anor (1984) 59 A.L.R. 277 at p. 279. On the other hand, the mere circumstance that an applicant is resident outside the jurisdiction does not necessarily invite an exercise of discretion in favour of ordering security, the question being how justice will best be served in the particular case: Barton v. Minister for Foreign Affairs [1984] FCA 89 ; (1984) 2 F.C.R. 463 ; CBS Records Australia Ltd. & Ors v. Telmak Teleproducts (Aust.) Pty. Ltd. (1987) ATPR p40-783 at pp. 48,554-48,555, (1987) 72 A.L.R. 270 at pp. 284-285. [My emphasis] The applicants submit that I should find that they would be likely to satisfy any adverse costs order and that this consideration, made on the basis of evidence of what they submit are assets available within the jurisdiction and other factors, should lead me to refuse Lodestar's application. The applicants refer to: the very significant resources of both applicants, but particularly Rare Breed, outside the jurisdiction; the presence of significant intangible assets within the jurisdiction; evidence of a concrete long-term commitment to doing business in Australia on the part of the applicants; a record of the applicants satisfying costs orders against them in overseas litigation between the same parties whenever such orders have been made; and the availability of reciprocal enforcement mechanisms in the applicants' "home" jurisdictions in the United States of America. Lodestar, on the other hand, submits that the "assets within the jurisdiction" on which the applicants rely are so problematical that they do not displace a presumption that is made in favour of an award of security in the case of foreign resident applicants, and that I should not, in effect, "trust" the applicants merely on account of their capacity to pay and other considerations on which they rely and to which I will refer below. In effect, Lodestar submits that the Court should approach the matter from the viewpoint of a respondent seeking to enforce a costs order and inquire whether that respondent would be subject to an unacceptable disadvantage by reason of the foreign residence of the applicants. I do not think that the availability of registration in the USA overcomes the procedural disadvantage that Lodestar would suffer in enforcing its costs order. Enforcing a costs order in the United States would take time and money and involve complexity that would not attend enforcement in Australia. See Energy Drilling at p 50,422 per Gummow J noted at [21] above. (vi) Notice of contention By a notice of contention, Lodestar seeks: a finding that Austin Nichols lacked standing under s 92(1) of the TM Act as it stood at the time when the removal applications were lodged; a finding that there were circumstances that were an obstacle to the use of the trade mark in the relevant period; and an exercise of the residual discretion not to order removal in a manner different from the way in which that discretion was exercised. If Lodestar's first contention prevails, Lodestar will succeed even in relation to the issue on which it failed before the Delegate (see [10] above). The applicants argue that Lodestar's second and third contentions would similarly be expected to go to the whole of the goods covered, but I need not discuss this submission.


case_text: relation to the distribution agreement, Lodestar relies on Jesse James v Nolmont Pty Ltd (subject to a Deed of Company Arrangement) (ACN 010 874 834) [2007] FCA 1604. In that case the applicants were all resident outside Australia and the "asset within the jurisdiction" on which they relied was a stream of royalties or a potential stream of royalties payable under a trade mark licence by a licensee or licensees in Australia in respect of the trade marks. Ryan J considered that the respondent should not have to rely on "assets as speculative as an unquantified stream of royalties flowing on some completely unidentified terms to Vanilla Gorilla [one of the applicants] or either of the other applicants". The case is not on all fours with the present one but his Honour's decision points in the direction of not regarding the present distribution agreement as an adequate "asset within the jurisdiction" for present purposes. While it may be that the distribution agreement would provide a satisfactory source of money against which an adverse costs order against Rare Breed could be enforced, this is doubtful for the reasons mentioned above. (iii) Commitment to Australia There is evidence that the Australian market is second in size only to that of the USA. Those two countries account for about 85% of the sales of the WILD TURKEY business the subject of the Campari Group's acquisition from the Pernod Ricard Group. There is also evidence that the Campari Group intends to expand its presence in important international markets such as Australia. The Information Memorandum contains the following (at p 8): Wild Turkey is a global brand, with a total sales volume of more than 800,000 nine-litre cases sold in over 60 markets. The US is the largest market, and generates approximately 50% of sales, while Australia and Japan are the second and third most important markets respectively. In Australia, the bulk of the business is represented by sales of the ready-to-drink products Wild Turkey & Cola and Wild Turkey & Dry, which have an alcoholic content of 6% vol. sold in single serve bottles and cans. ....................................................................................................... The Issuer intends to meet the following objectives through the acquisition: ... - to expand its presence on important international markets, such as Australia, where the acquisition lays the foundations for the creation of a distribution platform, and Japan. Annual sales in Australia are of approximately 120,000 cases of straight bourbon annually and approximately 1.2 million cases of "ready-to-drink" products. I also refer to confidential volume figures at [35] above.


case_outcome: followed

case_text: NV Sumatra Tobacco Trading Company v British American Tobacco Australia Services Ltd (ACN 004 069 649) [2008] FCA 1542 ; (2008) 79 IPR 286 ( NV Sumatra ), Greenwood J made an order that the applicant, NV Sumatra Tobacco Trading Company (NVS) provide security for certain costs that might be awarded against it in favour of the respondent, British American Tobacco Australia Services Ltd (BAT), notwithstanding the fact that NVS was the registered proprietor of 29 trade marks in Australia and the applicant in a number of pending applications to register trade marks. His Honour accepted that by being the registered proprietor of the trade marks, NVS had assets within the jurisdiction, but said that the question was whether they represented assets "of sufficient liquidity so as to constitute a realistic fund against which a successful respondent might enforce an order for costs" (at [20]). Greenwood J continued: A party seeking to enforce a costs order might consider whether a receiver might be appointed to stand in possession of the registered trade marks and the rights conferred by registration so as to realise those marks and convert the assets into a fund of money. However, such a process, if available, is one which bears a risk of certainty and complexity even within the jurisdiction. Although no doubt the registered trade marks have a value which can be calculated by reference to the discounted cash flows referable to the exclusive rights conferred by registration to sell goods bearing the marks, determining that value and effecting a sale might not be easy. His Honour did not regard the registered trade marks as assets within the jurisdiction against which an order for costs might easily be enforced. The applicants seek to distinguish NV Sumatra . They submit that in that case there was no evidence that the marks were in use in Australia, whereas in the present case there is ample evidence to that effect. Moreover, they submit that two problems associated with the trade marks in NV Sumatra do not exist in the present case. One problem was the difficulty of valuing the marks, and the other the difficulty of selling them. The applicants say that the present trade marks were valued as recently as April 2009 as part of an arm's length sale, that they are in use, and that at least two major companies (the respective applicants or their parent groups) have been willing buyers in the recent past. The applicants further submit that there is no reason to suppose that a receiver would have any difficulty in selling the trade marks at a price many times the amount of the respondent's costs. With respect, the applicants' submissions fail to grapple with the critical question whether the bare trade marks would be readily convertible into cash by sale to satisfy an adverse order for costs. The evidence to which the applicants refer is not evidence of a sale of the trade marks as items of property distinct from a sale of the underlying business. The applicants seek to distinguish NV Sumatra on the basis that it was common ground in that case that there was no mechanism for the enforcement of Australian costs orders in Indonesia. In that case, the only mechanism for enforcement was the realisation of the Australian registered trade marks, whereas in the present case there is that mechanism, garnishment of the monies falling due from the distributor to Rare Breed, and registration of the order for costs in the USA.


case_text: relies on P S Chellaram & Co Ltd v China Ocean Shipping Co [1991] HCA 36 ; (1991) 102 ALR 321 ( Chellaram ). In that case, the respondents to an appeal pending in the High Court sought an order that the appellant provide security for the costs of the appeal. The application was made pursuant to the provisions of O 70 r 7 of the High Court Rules , s 1335 of the Corporations Law and the inherent jurisdiction of the High Court. McHugh J summarised the ground of the application as being that the appellant was a company incorporated in Hong Kong, had no assets in Australia, and had a deficiency of shareholders' funds of more than $HK22 million. His Honour stated (at 323): To make or refuse to make an order for security for costs involves the exercise of a discretionary judgment. That means that the court exercising the discretion must weigh all the circumstances of the case. The weight to be given to any circumstance depends not only upon its own intrinsic persuasiveness but upon the impact of the other circumstances which have to be weighed. A circumstance which may have very great weight when only two or three circumstances have to be weighed may be of minor significance when many circumstances have to be weighed. However, for over 200 years, the fact that a party, bringing proceedings, is resident out of the jurisdiction and has no assets within the jurisdiction has been seen as a circumstance of great weight in determining whether an order for security for costs should be made. Indeed, for many years the practice has been to order such a party to provide security for costs unless that party can point to other circumstances which overcome the weight of the circumstance that that person is resident out of and has no assets within the jurisdiction. In the following paragraph, his Honour remarked that not only was the appellant resident out of, and without assets within, Australia, but also it was "hopelessly insolvent". An individual who was a major shareholder in the appellant's business proffered an undertaking to meet any costs ordered to be paid by the appellant up to the amount of the security being sought by the respondent, but there was no evidence concerning his financial position, the financial position of the other major shareholder of the appellant, or evidence of how the appellant's own costs were being funded. The present applicants correctly point out that the circumstances of the present case differ from those in Chellaram in relation to the insolvency of the party against whom the order for security was sought. This point of difference does not, however, automatically deny the proposition that great weight should be given to the fact that a party against whom the order for security is sought is a foreign resident without assets within the jurisdiction. Indeed, the present applicants accept that an order for security will be made in those circumstances unless other factors overcome the weight to be accorded to them. The application raises the question what is meant by "assets within the jurisdiction" for present purposes. (i) Overall solvency of the applicants I am not persuaded by the considerations referred to by the applicants to think that the "great weight" to which McHugh J referred in Chellaram should not be attached to the circumstance that both applicants are foreign corporations who have no readily realisable assets in Australia against which an order for costs could be enforced without difficulty or delay. Ultimately, the applicants' submission is that in view of the size and wealth of Rare Breed and the Campari Group, the considerable revenue that Rare Breed derives from the Australian market, and its apparent commitment to expand its operations in that market, it is simply unthinkable that it would not satisfy an adverse costs order. According to this approach, the presence or absence of assets in Australia is irrelevant. In my respectful opinion, this is the wrong approach. Lodestar is entitled to have its present application for security determined on the basis that it will have to enforce the costs order hypothetically made in its favour. It is not appropriate to determine the application on the assumption that the applicants will respond to an order that they pay costs with immediate compliance. At that time they may hold a certain view of the course that the proceeding has taken and determine not to satisfy the costs order unless forced to do so.


case_outcome: applied

case_text: The question arises then how to dispose of the matter. Section 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) empowers the Court to make an order that an appeal to the Court be dismissed for failure of the appellant to attend a hearing relating to the appeal. In circumstances where no proper justification has been given for the failure to attend, in my view, it is appropriate to exercise the discretion given to make such an order. In reaching this conclusion, I have considered the principles in other cases dealing with similar matters, in particular the decisions of NAKX v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 , and NALM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 17 , which support the exercise of the power in these circumstances.


case_title: NALM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 17


case_text: CEMEX challenges the orders made by the Panel on grounds that may be summarised as follows: 1. The orders were not authorised by s 657D , as that provision: (a) did not authorise the Panel to order a person to pay an amount of money to another person, either at all or, alternatively, in the absence of satisfaction that the latter person has suffered loss or damage as a result of the circumstances declared to be unacceptable; and (b) did not authorise the Panel to delegate to ASIC the duty to decide whether a person must pay an amount of money to another person. 2. the Panel improperly exercised the power conferred by s 657D by: (a) failing to take into account relevant considerations, being whether CEMEX's conduct constituted a contravention of Chapters 6, 6A, 6B or 6C of the Act; whether any Affected Shareholder relied on or suffered loss as a result of any conduct on the part of CEMEX; and whether the takeover bid would have proceeded differently, if the unacceptable circumstances had not occurred; and (b) making a decision in the context of the absence of evidence concerning the extent to which the rights or interests of Affected Shareholders were actually affected by the unacceptable circumstances, that being unreasonable in the Wednesbury sense. 3. The Panel erred in law within the meaning of s 5(1)(f) of the ADJR Act in various respects, arising out of the above grounds, including by concluding that an order could be made to "protect" rights or interests which no longer existed at the time the orders were made. 45 These grounds raise three issues: (1) whether the Panel had power to order CEMEX to pay each Affected Shareholder $0.25 in respect of each share sold during the Relevant Period in the absence of a finding that each Affected Shareholder had suffered a loss; (2) whether the orders involved an impermissible delegation of power to ASIC; and (3) whether the orders invalidly attempted to "protect" rights or interests that no longer existed. 46 The essence of this complaint is that s 657D(2)(a) while the Panel is authorised to make orders that protect rights or interests affected by the unacceptable circumstances, it is not given power to order that payment be made to individuals who have not shown financial loss. Consequently, where there is no evidence before the Panel that any individual Rinker shareholder suffered financial loss as a result of CEMEX's conduct order for payment is beyond power. The absence of such evidence meant the Panel was not in a position to determine whether there was a "reasonable connection between the extent to which the right/interest has been affected and the extent to which it is sought to be protected". As CEMEX stated in its written submissions: In the absence of such evidence, the Panel lacked the ability to determine whether any person's rights or interests had been affected and whether any order made by it would "protect" the shareholders' rights/interests. This is because individual shareholders may have suffered no loss or may have suffered a loss lesser or greater than the final dividend. 56 It follows that CEMEX's argument that the Panel improperly failed to take into account whether their conduct constituted a contravention of Chapters 6, 6A, 6B or 6C of the Corporations Act must be rejected. It also follows from my findings that the Panel's orders cannot be said to be unreasonable in the Wednesbury sense; Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223. 57 CEMEX alleges that the orders involve an impermissible delegation of power in that they establish, by orders 14-16, a mechanism by which ASIC is given the power to determine authoritatively whether a person is an Affected Shareholder and is therefore entitled to the payment. The mechanism set up by orders 14-16 is as follows: 14. CEMEX may refer a claim to ASIC, within 2 weeks of CEMEX or the ISP receiving the claim form (whichever is earlier). CEMEX must provide to ASIC, with the referred claim form, the reasons it considers that the person submitting the claim form may not be entitled to the payment set out in the claim form because: (a) CEMEX considers that the person submitting the claim form is not an Affected Shareholder; (b) Special Circumstances do not apply; (c) CEMEX dispute some or all of the details, supporting documents or evidence submitted in all with the claim form; or (d) CEMEX considers that payments have already been made or claimed for in respect of some or all of the Rinker shares claimed for. 15. If CEMEX refers a claim form to ASIC under Order 14, ASIC shall within 2 weeks of receipt of that claim form make a determination, after consultation with CEMEX if ASIC considers it desirable, as to whether or not the person submitting the claim form is entitled to be paid in accordance with the Orders and if necessary, for how many Rinker shares. 16. If ASIC is unable to make a determination under Order 15, it shall refer the claim form to the Panel within 2 weeks of receipt by ASIC of that claim form for decision. 58 According to CEMEX, where the power to determine authoritatively whether a person falls within the group is delegated to a third party it is not possible for the review Panel to reach the requisite state of satisfaction that the rights or interests of a group of person have been affected.


case_outcome: referred to

case_title: Attorney General (Cth) v Alinta Ltd [2008] HCA 2 ; (2008) 242 ALR 1

case_text: It may well be that the Panel's concern to make quite clear that it was not basing its decision on a finding that there had been a contravention of the Corporations Act was because its decision predated the decision of the High Court in Attorney-General (Cth) v Alinta Ltd [2008] HCA 2 ; (2008) 242 ALR 1. At the time, therefore, the question of whether s 657A(2)(b) involved the exercise of the judicial power of the Commonwealth had not been authoritatively determined. 25 The review Panel rejected CEMEX's submission that the terms of its best and final offer should be construed as retaining for CEMEX a discretion whether or not it would deduct the amount of the dividend paid to Rinker shareholders or that it had qualified its 10 April announcement by reserving such a discretion. It referred to analysts' reports submitted by CEMEX and found that of the seven reports submitted, only one expressed the view that CEMEX could allow Rinker shareholders to retain the benefit of the final dividend, two expressed a contrary view and the others did not address the matter. 26 The review Panel also referred to the statement made by Rinker on 27 April 2007, when it announced the final dividend of $0.25. The Rinker announcement said: Shareholders should note that under the terms of CEMEX's takeover offer for Rinker, CEMEX has the right to deduct the amount of the dividend (or an amount equal to its value, as are reasonably assessed by CEMEX) from the offer price payable to accepting shareholders who have or will receive that dividend. The Panel considered that the "ordinary reading of the statement" would merely remind shareholders of the terms of CEMEX's offer and would not convey the meaning that CEMEX might improve its offer, by allowing them to retain a dividend. 38 The regulatory framework which Chapter 6 establishes is, as Gleeson CJ observed in Attorney General (Cth) v Alinta Ltd at 4, designed "to preserve an efficient, competitive and informed capital market". Section 657A(1) recognises that the conduct of a takeover may be inconsistent with such a market even where it does not contravene a specific provision of the Corporations Act . Emmett J recognised this in Glencore International AG v Takeovers Panel [2006] FCA 274 ; (2006) 151 FCR 77 at 108: The panel, of course, is expressly empowered by s 657A(1) to make declarations notwithstanding that there has been no contravention of the Act. Part 6.10 of the Act provides flexibility in the regulation of the acquisition of shares in circumstances where the literal operation of the regulatory regime is either unnecessarily restrictive or ineffective to achieve the object of Ch 6. It is clear enough that the regime involving the panel is designed to ensure regulation of the acquisition of shares over and above the provisions contained in the balance of Ch 6: ... The panel made its declaration because, notwithstanding compliance by Glencore and the Banks with the disclosure regime prescribed by the Act, the purposes of Ch 6, as expressed in s 602 , were not achieved. That is precisely the circumstance for which s 657A provides. It is not unreasonable for the panel, if its decision was otherwise lawful and authorised, to reach that conclusion.


case_outcome: discussed

case_text: In Australian Securities & Investments Commission v Yandal Gold Pty Ltd (1999) 32 ASCR 317, Merkel J considered a contravention of s 615 of the then-applicable Corporations Law . Section 737 empowered the Court to "make such order or orders as it thinks just" and s 739(1) empowered a court to make "such orders as it thinks necessary or desirable to protect the interests of a person affected by the takeover scheme". His Honour held at 354-355: However, there might be a more appropriate and just remedy. It relates to Edensor's carried interest. Mr Lonergan's evidence, which valued that interest at $27-30 million, was only partly challenged by the respondents. As explained earlier, that is effectively the "price" paid by the Normandy group to Edensor to secure the bid structure agreement and the Shareholders Agreement or, put another way, a measure of the benefit obtained by Edensor by its contraventions of s 615. As a consequence of the payment of that "price" the shareholders were deprived of the opportunity of receiving an offer of a significantly higher price at the time of the bid and were left with little practical choice but to accept the offer made or to now exercise their right to require the acquisition by Yandal Gold of their shares pursuant to s 703(2). Is it just that that "price" be redirected to those who suffered the detriment arising from its payment? In my view an order that Edensor be required to disgorge to those shareholders the value of the benefit it received for its contravening conduct is "just" under s 737 and is protective of the interests of the shareholders under s 739. 66 It follows from the above that I am satisfied that the Panel made no error in making the orders. 67 For all of the above reasons the application must be dismissed. In the ordinary course, the respondents, having been successful, would be entitled to their costs. However, neither party made any submissions as to costs either orally or in writing. That being so I shall allow all parties time to make submissions as to costs before making any orders. I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 23 October 2008 Counsel for the Applicant: I M Jackman SC, J R J Lockhart Solicitor for the Applicant: Allens Arthur Robinson Counsel for the First Respondent: J G Santamaria QC Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: S Gageler SC, I R Pike Solicitor for the Second Respondent: Australian Securities & Investments Commission Date of Hearing: 19, 20 May 2008 Date of Judgment: 23 October 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1572.html


case_text: The notion that s 657D(2)(a) does not permit the Panel to make orders on the basis of a so-called " en globo " assessment of the likely loss or damages suffered by Rinker shareholders was said by CEMEX to be supported by Emmett J's comments in Glencore International AG v Takeovers Panel (2005) 54 ACSR 708 at 722, where his Honour said: [T]he review panel took no steps to determine whether, and if so, in what manner, any right or interest of any such person was affected by the non-disclosure. While the orders were purportedly made for the purposes of protecting the rights or interests of persons affected by the non-disclosure, the order applied indiscriminately to any person who sold shares on ASX during the relevant period, irrespective of whether any such person would have taken any different course had the relevant disclosure been made. 49 This submission does not take account of the amendments to the Corporations Act made by the Corporations Amendment (Takeovers) Act 2007 (Cth). The Explanatory Memorandum to the corresponding Bill makes it clear that the amendments were designed to respond to the concern that, following Glencore , "it may be open to read the Panel's powers and jurisdiction in the current legislation in way that is too narrowly formulated to enable the Panel to perform effectively the role envisaged for it by Parliament", in particular the power to make orders to protect the rights or interests of persons affected by unacceptable circumstances. In relation to s 657D(2)(a) the Explanatory Memorandum stated: Paragraph 657D(2)(a) of the Act currently allows the Panel to make orders it thinks appropriate to protect the rights or interests of any person affected by the circumstances. The amendment means that this is not confined to rights and interests directly affected by the circumstances. The amendment ensures that the Panel can make any order it thinks appropriate to protect any rights or interests of a person or group of persons, where the Panel is satisfied that their rights or interests have been, are being, will be or are likely to be affected by the unacceptable circumstances. This will allow the Panel to protect the interests of those persons more effectively. The amendment will also ensure that the Panel may make orders which protect the interests of a group of persons whose interests have been affected, rather than requiring it to address the effects person by person. (Emphasis added.) 50 I am satisfied that the Court was entitled to proceed en globo in its assessment of the extent to which shareholder's rights or interests were affected by the unacceptable circumstances. First, as well as being consistent with the express words of s 657D(2)(a) ("if the Panel is satisfied that the rights or interest of any person, or a group of persons ..."), such an approach recognises that the unacceptable circumstances misinformed the market as to the status of CEMEX's offer, thereby affecting the rights and interests of vendors of Rinker shares in that market, as a group. Counsel for ASIC, in my view accurately, summarised the steps taken by the Panel as follows: • identifying a group of persons, namely those who sold their Rinker shares between 10 April and 7 May 2007; • identifying the interests of those persons affected by the conduct, being the interest in ensuring that the relevant trading occurred in an efficient and informed market, and the interest in having a reasonable opportunity to participate in the benefits of the improved offer; • making a finding that the market value of the improved offer consideration was around $0.25; and • forming the view that an appropriate order was to compensate those persons in that amount.


case_text: The regulatory framework which Chapter 6 establishes is, as Gleeson CJ observed in Attorney General (Cth) v Alinta Ltd at 4, designed "to preserve an efficient, competitive and informed capital market". Section 657A(1) recognises that the conduct of a takeover may be inconsistent with such a market even where it does not contravene a specific provision of the Corporations Act . Emmett J recognised this in Glencore International AG v Takeovers Panel [2006] FCA 274 ; (2006) 151 FCR 77 at 108: The panel, of course, is expressly empowered by s 657A(1) to make declarations notwithstanding that there has been no contravention of the Act. Part 6.10 of the Act provides flexibility in the regulation of the acquisition of shares in circumstances where the literal operation of the regulatory regime is either unnecessarily restrictive or ineffective to achieve the object of Ch 6. It is clear enough that the regime involving the panel is designed to ensure regulation of the acquisition of shares over and above the provisions contained in the balance of Ch 6: ... The panel made its declaration because, notwithstanding compliance by Glencore and the Banks with the disclosure regime prescribed by the Act, the purposes of Ch 6, as expressed in s 602 , were not achieved. That is precisely the circumstance for which s 657A provides. It is not unreasonable for the panel, if its decision was otherwise lawful and authorised, to reach that conclusion.


case_text: The ADJR Act provides that an improper exercise of power includes, inter alia, taking an irrelevant consideration into account in the exercise of the power and failing to take a relevant consideration into account: s 5(2). CEMEX submitted that in declining to have regard to whether its conduct gave rise to a contravention of Chapters 6, 6A, 6B, or 6C of the Corporations Act or was otherwise contrary to law, the Panel ignored a consideration that it was bound to take into account in making the decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 39-40. It is not in dispute that the Panel expressly declined to consider this question. Therefore the only issue for me to decide on this point is whether the Panel was required to have regard to it. 36 Section 657A(3)(a)(ii) imposes an obligation on the Panel, when contemplating a declaration of unacceptable circumstances, to have regard to "the other provisions of this Chapter [6]". CEMEX submitted that, because of the express reference in s 657A(2)(c) to Chapters 6A, 6B and 6C, the obligation extends also to those chapters. It accepted that a declaration of unacceptable circumstances may be made even if the circumstances do not give rise to a contravention of the Act; s 657A(1). It submitted, however, that a consideration need not be determinative to render it relevant. CEMEX referred to the Panel's observation that forming a view about whether a contravention had occurred would only be one aspect of considering whether the circumstances were unacceptable. It argued that it did not follow that the issue could be ignored. 37 CEMEX's submissions advocate a mechanistic approach to the interpretation of s 657A(3)(a). This is not what the section requires. An obligation to have regard to Chapter 6 does not require the decision maker to consider whether there has been a contravention of each and every applicable provision. The task of the Panel was to consider whether, as ASIC alleged, unacceptable circumstances had arisen. Section 657A(3)(a) sets out the matters that it is mandatory for the Panel to consider. The question of whether there has been a contravention of Chapters 6, 6A, 6B, 6C is not included as a mandatory matter. The fact that s 657A(1) specifically provides that it is not necessary for there to be a contravention of a provision of the Act, indicates that if the Panel considered CEMEX's conduct resulted in unacceptable circumstances irrespective of there being a contravention, it was not necessary for it to consider if there had been a contravention. It is clear that the fact of a contravention would be highly relevant to the question of whether the circumstances should be characterised as "unacceptable". If, however, such circumstances exist irrespective of a contravention, it is not necessary for the Panel to consider that issue.


case_text: Before discussing the Panel's decision, a brief overview of its composition and function is appropriate. The following outline, draws heavily on the submissions made by the Panel, which, consistent with the principle in Queen v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13 at 35-36, made submissions limited to the Panel's powers and procedures and not in the role of a protagonist. 8 The written submissions of the Panel outlined its history, commencing with its establishment under Part 10 of the Australian Securities Commission Act 1989 (Cth). When that Act was repealed and replaced by the Australian Securities and Investments Commission Act 2001 (Cth) ( ASIC Act ), the Panel continued in existence by operation of s 261 of that Act. Initially, the Panel was known as the Corporations and Securities Panel. Its name was changed to the "Takeovers Panel" by the Financial Services Reform Act 2001 (Cth). Interesting as the history is, it is not necessary to refer to it in any detail and I shall confine my comments to the present constitution and operation of the Panel. 9 The members of the Panel are appointed by the Governor-General on the nomination of the Minister and may be full-time or part-time members. They must be persons with knowledge or experience in one or more of the fields of business, administration of companies, financial markets, financial products and financial services, law, economics, and accounting; ASIC Act s 172(4). The Panel is not a legal entity, but is merely a collective term for the individual members.


case_outcome: distinguished

case_text: He submits that Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56 ; (1989) 168 CLR 165 ( Banovic ) bears some similarity to the present case, although it was concerned with discrimination on the ground of sex under the Anti-Discrimination Act 1977 (NSW) (AD Act). I refer to this case below. 35 Banovic , relied on by Mr Boyn, is distinguishable. In that case, all of the relevant conduct occurred after the commencement of the Anti-Discrimination Act 1977 (NSW) (the AD Act). 36 In Banovic , Australian Iron & Steel Pty Ltd (AIS) operated a steel works at Port Kembla, New South Wales. All of the following events occurred after June 1977, the date of the entry into operation of the AD Act. Until mid-1980, AIS pursued recruitment practices that resulted in women constituting a very small proportion of the AIS ironworker workforce. Another result of those practices was that the waiting time for employment as an ironworker was considerably higher for women than for men. In mid 1980 AIS changed its practice as a result of which the number of women employed as iron workers increased, both in terms of absolute numbers and also as a proportion of the total ironworker workforce. Still, however, the waiting time for women as compared with the men was vastly disproportionate, being measured in years rather than a few days or weeks. 37 A downturn occurred in the steel industry in 1981 and AIS ceased recruiting new iron workers from September of that year. The downturn continued. In October 1982, AIS announced that it would be retrenching iron workers as from 14 November 1982 on the basis of "last on, first off". AIS in fact retrenched those iron workers who commenced work after 6 January 1981. Eight female iron workers who were retrenched complained of unlawful discrimination on the ground of their sex. By a 3:2 majority, the High Court held that although the "last on, first off" principle was in itself unobjectionable, it exacerbated the adverse effects of past discriminatory practices by AIS, and so it was open to the Equal Opportunity Tribunal to find, in respect of retrenchments, that the past discrimination on the ground of sex was repeated. 38 The facts are distinguishable from those of the present case because the earlier discriminatory hiring practice of AIS, as well as the implementation of the "last on first off" policy, post-dated the commencement of the AD Act, and because the implementation of that policy was able to be regarded as repeating the discrimination involved in the hiring practice. In the present case, the statement of claim does not allege any discriminatory treatment by Schering of Mr Boyn as compared with Schering's treatment of other people after the Act commenced to operate on 23 June 2004. 39 I do not find it necessary to deal with Schering's second and third attacks on the statement of claim distinct from its first attack. It suffices to say that once it is accepted that, immediately before the commencement of the Act on 23 June 2004 there was in place a superannuation scheme that Mr Boyn had voluntarily joined and about which he had no legal cause of complaint at that time, one searches in vain for subsequent conduct by Schering that fits the descriptions contained in ss 14 and 18(2) of the Act. Mr Boyn's complaint seems to be simply that Schering did not choose to make a "top up superannuation payment" that would have made the amount received by Mr Boyn equal to some unidentified amount payable to some unidentified person or group who were at some unidentified time younger to some unidentified extent than Mr Schering. 40 On my understanding of the facts, I do not think that the statement of claim can be amended so as to plead, in respect of superannuation, unlawful discrimination by Schering occurring after 23 June 2004 and falling within ss 14 and 18(2) of the Act. However, I am reluctant to deny Mr Boyn the opportunity of amending the statement of claim in an attempt to support the claim in respect of superannuation. I will allow him that opportunity. Before taking advantage of it, however, I strongly urge that Mr Boyn and those advising him should consider carefully the question whether facts can be pleaded showing a case falling within ss 14 and 18(2) of the Act consisting of conduct by Schering after 23 June 2004.


case_title: Maxwell v Murphy (1957) 96 CLR 261

case_text: It is common ground that in order to succeed on his claim under the Act, Mr Boyn must be able to establish that Schering unlawfully discriminated against him on the ground of his age in one of the respects identified in paras (a), (b), and (d) of s 18(2) of the Act (see [12] above it is common ground that para (c) is irrelevant) after the Act commenced operation on 23 June 2004: for example, see Maxwell v Murphy (1957) 96 CLR 261 at 267. However, the statement of claim does not allege facts falling within s 14 and s 18(2) of the Act occurring after that date. There is no pleading of the conduct of Schering after 23 June 2004 that amounted to Schering having treated Mr Boyn less favourably than, in circumstances that were the same or not materially different, Schering had, after 23 June 2004, treated or proposed to treat persons of a different age after 23 June 2004 (see s 14 of the Act).


case_title: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57

case_text: am satisfied that, having regard to the affidavit of Ms Gardner, the applicant has made out a prima facie case of infringement of the trade mark in relation to articles which are not of the manufacture of the applicant or its parent, for the purposes of Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 per Gleeson CJ and Crennan J at [19] and Gummow and Hayne JJ at [65] to [72]. A further question arises in relation to the specific elements of section 136 of the Trade Marks Act 1995 (Cth) which provides that the Customs CEO must release the seized goods to their designated owner if, within the action period, Jemella has not brought an action for infringement of the notified trade mark in respect of the goods, and given to the customs CEO notice in writing of the action. The action period relevantly expired in respect of the first notice on 20 November 2009 and in respect of the second and third notices on 23 November 2009. The action was commenced on 20 November 2009 for infringement of the notified trade mark in respect of all of the goods.


case_outcome: considered

case_text: the NT registrar also points out, in Strickland (on behalf of the Maduwongga People) v Native Title Registrar (1999) 168 ALR 242 at [9] French J observed: (R)egistration of a native title claim confers upon the registered applicants important procedural rights. It constrains the ability of the State government to proceed to do a valid future act until, in the case of those acts to which Subdiv P applies, it has negotiated an agreement with the applicants or secured an arbitral determination that the act may be done.


case_text: the NT registrar refers to the following passage from Commonwealth of Australia v Clifton (2007) 164 FCR 355 at [50]: The Attorney-General stated in the second reading speech [to the Native Title Amendment Bill 1997 (No. 2)] that one of the outcomes the Bill was designed to achieve was 'to put in place a registration test for claims which ensures that those negotiating with developers have a credible claim'. The Attorney-General also stressed that 'an effective registration test as the gateway to the statutory benefits which the act provides is essential' and that it was 'essential to the continuing acceptance of the right to negotiate process that only those with a credible native title claim should participate'. The requirements of s 62 inform the process to be followed by the NT registrar in performing the function prescribed by s 190A. The available material must constitute a factual basis, in general terms, for the claim that native title rights and interests exist. We are presently concerned with s 190B and in particular subss 190B(5), (6) and (7). However subs 190B(4) is also relevant. Those subsections are as follows: (4) The Registrar must be satisfied that the description contained in the application as required by paragraph 62(2)(d) is sufficient to allow the native title rights and interests claimed to be readily identified. (5) The Registrar must be satisfied that the factual basis on which it asserted that the native title rights and interests claimed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions: (a) that the native title claim group have, and the predecessors of those persons had, an association with the area; and (b) that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests; and (c) that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs. (6) The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established. (7) The Registrar must be satisfied that at least one member of the native title claim group: (a) currently has or previously had a traditional physical connection with any part of the land or waters covered by the application; or (b) previously had and would reasonably have been expected currently to have a traditional physical connection with any part of the land or waters but for things done (other than the creation of an interest in relation to land or waters) by: (i) the Crown in any capacity; or (ii) a statutory authority of the Crown in any capacity; or (iii) any holder of a lease over any of the land or waters, or any person acting on behalf of such a holder of a lease. Of these provisions, the most important for present purposes is s 190B(5).


case_text: title rights and interests claimed under the Act must be "possessed under" traditional laws and customs. The requirement that laws and customs be "traditional" is of considerable significance. In my earlier reasons at [26], I identified a number of propositions which emerge from the reasons of Gleeson CJ, Gummow and Hayne JJ in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 (" Yorta Yorta "). Some of those propositions expressly address the meaning of the term "traditional" in this context. Their Honours primarily dealt with the subject under the heading "The Inextricable Link Between a Society and its Laws and Customs". As to the word "traditional", at [45]-[47] their Honours observed: ... Hitherto it has been accepted, and the contrary was not contended in this appeal, that the native title rights and interests to which the Native Title Act refers are rights and interests finding their origin in pre-sovereignty law and custom, not rights or interests which are a creature of that Act. That being so, the references in pars (a) and (b) of the definition of native title to "traditional" law or custom must be understood in the light of the considerations that have been mentioned. As the claimants submitted, "traditional" is a word apt to refer to a means of transmission of law or custom. A traditional law or custom is one which has been passed from generation to generation of a society, usually by word of mouth and common practice. But in the context of the Native Title Act , "traditional" carries with it two other elements in its meaning. First, it conveys an understanding of the age of the traditions: the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown. It is only those normative rules that are "traditional" laws and customs. Secondly, and no less importantly, the reference to rights or interests in land or waters being possessed under traditional laws acknowledged and traditional customs observed by the peoples concerned, requires that the normative system under which the rights and interests are possessed (the traditional laws and customs) is a system that has had a continuous existence and vitality since sovereignty. If that normative system has not existed throughout that period, the rights and interests which owed their existence to that system will have ceased to exist. And any later attempt to revive adherence to the tenets of that former system cannot and will not reconstitute the traditional laws and customs out of which rights and interests must spring if they are to fall within the definition of native title. At [50] their Honours continued: To speak of rights and interested possessed under an identified body of laws and customs is, therefore, to speak of rights and interests that are the creatures of the laws and customs of a particular society that exists as a group which acknowledges and observes those laws and customs. And if the society out of which the body of laws and customs arises ceases to exist as a group which acknowledges and observes those laws and customs, those laws and customs cease to have continued existence and vitality. Their content may be known but if there is no society which acknowledges and observes them, it ceases to be useful, even meaningful, to speak of them as a body of laws and customs acknowledged and observed, or productive of existing rights or interests, whether in relation to land or waters or otherwise. At [186] Callinan J said: It seems to me that the critical elements of traditional laws and customs and "rights and interests" in the sense and context in which the words are used in s 223 are these. The rights and interests must be definable with sufficient certainty to enable them to be enforced by the common law ... . They must, for the same reason, be held in relation to defined land. For their enjoyment a physical presence is essential. This is so, because, if physical presence were not a necessary component of the right or interest, then the right or interest could be enjoyed elsewhere: physical occupation, presence or possession of the land would not then be essential for the observance, participation in, or enjoyment of the right in question. The Act is concerned with title, that is title to land, and a bundle of rights and interests attaching to, or arising out of that title. The definition of the rights must be found in the traditional laws or customs. Tradition requires a high degree of continuity. It also involves intergenerational transmission, acknowledgement and observance. The traditional laws and customs to which the rights and interests owe their existence must be ones which were in existence on first non-indigenous settlement, in 1788, because it was at that time that the sovereign radical title was assumed, and upon which the native title became a burden. And it is those traditional laws and customs which must have continued (albeit that they may have evolved, a matter which I will discuss later) in order to give real content to the rights and interests currently asserted. It follows that in order for native title to survive (absent extinguishment), and be the subject of a determination under the Act, there must have been, in 1788, a recognisable group exercising identifiable relevant traditional laws and customs, themselves reasonably certain, on and relating to defined land, involving physical presence on it, and continuity of these, until, and at the time of the determination. I understand these paragraphs to establish that in order to demonstrate traditional laws and customs for the purposes of the definition of the terms "native title" or "native title rights and interests", one must demonstrate: The applicant's case necessarily involves the assertion that: Paragraphs 38, 39 and 40 of the applicant's amended submissions are as follows: It is submitted that it is not necessary to start by looking for something that one might regard as a pre-sovereignty "society". Rather, it is permissible to look for (factual assertions of) laws and customs, for example like those apparent from the long list which were set out by the Court at first instance in paragraph [70] to [77] of the Reasons for Judgment, and consider whether they can be laws and customs having a normative content which can definite a relevant "society". Where the evidence is that such laws and customs have been handed down from generation to generation, inferences can be drawn to the effect that they form part of a normative system at the time of sovereignty. Such an approach was referred to in [ Moses v State of Western Australia (2007) 160 FCR 148) (" Moses ")] under the heading "Reasoning Backwards". Further, there is no requirement that different families maintain contact with each other in order to be subject of a common body of laws and customs. Annexure C includes references to the material concerning the laws and customs which have been handed down from generation to generation, and which can be inferred to be "traditional" in the Yorta Yorta sense. See too Annexure E. (Footnotes omitted.) I understand the applicant to submit that one may look at existing laws and customs, presumably those recognized and observed by the claim group, and then draw an inference as to the existence of a pre-sovereignty "normative system". I am not sure how one would decide whether laws and customs have a "normative content which can define a relevant 'society' ". I do not understand the Act to address the appropriateness or adequacy of any system of laws and customs for that purpose. The relevant enquiry is as to laws and customs acknowledged and observed by an existing claim group, laws and customs acknowledged and observed by a pre-sovereignty society and the connection between those societies and between the laws and customs, attributable to them. As is pointed out in Yorta Yorta , a society and its laws and customs are inextricably linked. The applicant then submits that where the evidence is that such laws and customs have been handed down from generation to generation, it may be inferred that they formed part of a normative system at the time of sovereignty. Thus, it is submitted that the application need only contain a general description of the laws and customs presently acknowledged and observed and of the process by which they have been handed down. However the adequacy of such an approach will depend upon the circumstances of the case in question. Of course, in describing the factual basis of a claim for rights and interests in land and waters, the applicant must take account of the specificity required by s 62(2)(d). The general description required by s 62(2)(e) must be, one would expect, commensurate with the detail required by the former provision. In assessing the adequacy of a general description of the factual basis of the claim, one must be careful not to treat, as a description of that factual basis, a statement which is really only an alternative way of expressing the claim or some part thereof. In my view it would not be sufficient for an applicant to assert that the claim group's relevant laws and customs are traditional because they are derived from the laws and customs of a pre-sovereignty society, from which the claim group also claims to be descended, without any factual details concerning the pre-sovereignty society and its laws and customs relating to land and waters. Such an assertion would merely restate the claim. There must be at least an outline of the facts of the case. In many cases the history of a claim group will not be sufficiently well known to permit such an approach. However other matters may be known which assist in demonstrating the traditional nature of the claim group's laws and customs. Sufficient may be known of circumstances before, or shortly after, first European contact (assuming that event occurred after the date of assertion of British sovereignty) to permit an inference that the claim group is a modern manifestation of a pre-sovereignty society, and that its laws and customs have been derived from that earlier society. Such an inference may be available notwithstanding the absence of any recorded history of the society and the way in which it has continued since the earlier "snapshot" of the society. Such a case will involve, at some point, a comparison of the earlier and later societies and their laws and customs. A case of that kind may have to address the fact that there is little or no evidence of continuity of the society since first European contact or of continuous acknowledgement and observance of its laws and customs, a problem recognized in Yorta Yorta . From a forensic point of view the difference between these two approaches is that in the former, the necessary link between the pre-European contact society and its laws and customs, and the claim group and its laws and customs, may be inferred primarily from continuity, without necessarily resorting to a close examination of the societies and their laws and customs. The evidence of actual events will demonstrate continuity. Even if the history commences shortly after first European contact, it may be reasonable to assume that such a stable society was unlikely to have arisen in the period between contact and the commencement of historical records. In the latter approach, the applicant will seek to demonstrate continuity of the pre-sovereignty society, and of acknowledgement and observance of its laws and customs, by examination of those societies and their laws and customs at two or more points of time, inviting an inference as to continuity. Of course there is no clear distinction between these two approaches. Many, perhaps most, cases will involve elements of both. However it must be kept in mind that it is necessary to demonstrate both a pre-sovereignty society having laws and customs, from which the laws and customs of the claim group are derived, and continuity of the pre-sovereignty society, including its laws and customs. Clear evidence of the existence of such a society and acknowledgement and observance of its laws and customs shortly after first European contact, and continuity thereafter, may satisfy both requirements, the first, by available inference and the second, directly. Clear evidence of a pre-sovereignty society and its laws and customs, of genealogical links between that society and the claim group, and an apparent similarity of laws and customs may justify an inference of continuity. However when the evidence as to both aspects is weak, the combined effect may, in some respects, be further to undermine, rather than to strengthen, the claim. Yorta Yorta establishes that a society and its laws and customs are inextricably linked. It is impossible to identify a system of laws and customs as such without identifying the society which recognizes and adheres to those laws and customs. It would mean nothing to say that A had a legal interest in Blackacre unless one identified, or at least knew, the society which recognized that right. Indeed it appears (at [28]) that in Yorta Yorta the appellants took an approach similar to that urged by the applicant. That approach was rejected by Gleeson CJ, Gummow and Hayne JJ at [56] where their Honours said: For these reasons, it would be wrong to confine an inquiry about native title to an examination of the laws and customs now observed in an indigenous society, or to divorce that inquiry from an inquiry into the society in which the laws and customs in question operate. Further, for the same reason, it would be wrong to confine the inquiry for connection between claimants and the land or waters concerned to an inquiry about the connection said to be demonstrated by the laws and customs which are shown now to be acknowledged and observed by the peoples concerned. Rather, it will be necessary to inquire about the relationship between the laws and customs now acknowledged and observed, and those that were acknowledged and observed before sovereignty, and to do so by considering whether the laws and customs can be said to be the laws and customs of the society whose laws and customs are properly described as traditional laws and customs. (Original emphasis.) Clearly enough, in order to identify the laws and customs that were acknowledged and observed before sovereignty, it is necessary to identify the persons who acknowledged and observed them, namely the relevant pre-sovereignty society. I accept that the applicant claims that the claim group acknowledges and observes certain laws and customs pertaining to the claim area. However I again reject use of the word "traditional" simply because no pre-sovereignty society has been identified for the purpose of identifying its relevant laws and customs so as to demonstrate that the claim groups' laws and customs are traditional in the sense identified in Yorta Yorta . As to the second sentence, the reference to "early literature" is quite unclear. If Mr Hagen is referring to Palmer's writings, then it is curious that he has at no time explained why they should be applied to the Gudjala people. As to Roth's article, it does not deal with laws and customs concerning land and waters. If, in fact, Mr Hagen is referring to other "early literature", then it is curious that he has not identified it. The reference in the report to Curr, Tindall, Sutton and Tsunoda is in connection with location of the claim area, not laws and customs. Thus there is no factual basis for concluding that there were pre-sovereignty laws and customs with which to compare the claim group's laws and customs. The third conclusion is that: The native title claim group's ongoing observance of traditional laws and customs is consistent with the maintenance of traditional rights and interests in the land subject to the claim. This statement begs the question, namely whether the claim group's laws and customs, which give rise to the claimed rights and interests in relation to land and waters, are "traditional".


case_text: applicant also refers to the decision of the Full Court in De Rose v State of South Australia (2003) 133 FCR 325 (" De Rose ") at [273]-[283]. It submits that the decision establishes that there is no requirement that different families within a group maintain contact with each other in order to be subject to a common body of laws and customs. To the extent that the applicant relies upon the decision in De Rose for that proposition, it has misunderstood that decision. It concerned a claim by persons described as "Nguraritja" to native title pursuant to the traditional laws and customs of a larger group known as the "Western Desert Bloc". The relevant laws and customs were not those of the Nguraritja but those of the Western Desert Bloc. It is clear that the Court considered that there was such a society which had enjoyed continuous existence and vitality since sovereignty and had traditional laws and customs. The case is of no assistance for present purposes. In any event, I accepted in my earlier reasons that it is not necessary that the apical ancestors be shown to have been members of the one pre-sovereignty society. However, if descent from three apical ancestors is the basis for membership of the claim group, then there must be some connection between them and the relevant pre-sovereignty society from which the claim group asserts that it has derived its native title rights and interests. In my earlier reasons I observed that the applicant had criticized the delegate for seeking to find a society of which the three apical ancestors were the members, asserting that it was not essential to the applicant's case that the existence of such a society be established. That criticism may not have accurately identified the delegate's reasoning. As I understand his reasoning it was that evidence that three women, who may have met or known each other, could not, without more, constitute a society, particularly given the absence of any identified men. I suspect that just as the applicant misunderstood the delegate's reasoning, the delegate may have misunderstood the applicant's claim. The latter misunderstanding may have been the result of the extreme lack of clarity with which it is expressed and the fact that, in order to identify it, it is necessary to trawl through various parts of the application and the affidavits. My understanding of the applicant's claim as to the traditional nature of the claim group's laws and customs is primarily that they are presently acknowledged and observed, coupled with assertions that they have been passed down from generation to generation by the claim group, and that the claim area was, prior to first European contact, that of the Gudjala people, a description which the claim group also applies to itself. Some evidence from Mr Hagen generally supports these assertions. He also says something about the named apical ancestors and a little about Aboriginal laws and customs. I will return to his report at a later stage. There is a substantial amount of evidence in the affidavits and the report concerning current laws and customs which, it is asserted, are "traditional", but little of it relates to rights and interests in land and waters.


case_text: respondents have admitted that the third respondent published the first page of the Customer Facsimile and that the second respondent published a document resembling the first page of the attachment. The third respondent was the author of the first page of the 13 September facsimile and the second respondent was the author of the attachment, which he wrote at the request of the third respondent. There was no evidence to prove that the attachment had been written for any purpose other than its transmission to the addressee named upon it. Insofar as the applicants seek relief for defamation in respect of the publication of the 13 September facsimile it is appropriate to have regard to what Dixon J, as his Honour then was, said in Lee v Wilson and Mackinnon [1934] HCA 60 ; (1934) 51 CLR 276 at 287-8, namely: 'It is the publication, not the composition of a libel, which is the actionable wrong. Often the person sued for publishing is not the writer. The injury done by a libel arises from the effect produced upon its readers. These considerations naturally led to a rigorous application to libels of the rule that the meaning of a document should be determined independently of the actual intention which the writer entertained. The acceptance of a criterion of liability which adopted, not the intention actuating the writer, but the understanding produced in the reader, was aided by the rule, which can be traced back to an early time, that for the interpretation of a libel evidence could be received of particular circumstances affecting its meaning, and of the actual interpretation which persons conversant with those circumstances affixed to it.' At the time when the 13 September facsimile was transmitted the third respondent was the sole director of the first respondent. As at 13 September 2005 no companies had been registered bearing the names 'Nielsen & Moller Auto glass Australia Pty Ltd' or 'Nielsen & Moller Autoglass International & Australia Pty Ltd'. However, Nielsen & Moller Autoglass Pty Limited ACN 064 101 873, which was registered on 28 March 1994, was in existence on that date. Prior to October 2001, it apparently had a different name. As at 14 August 2006 Nielsen & Moller Autoglass Pty Limited had an issued capital of two shares, both of which were owned by the third respondent, who was also its sole director and secretary. On 6 September 2003 a letter was sent by the third respondent on a letterhead suggesting that the company with the Australian Business Number 79 064 101 873 then had the name 'Nielsen & Moller Autoglass International Pty Ltd'. Its address was shown as the third respondent's then home address. On 18 February 2004 the third respondent signed a facsimile message as 'Managing Director/Proprietor' of 'Nielsen & Moller Autoglass International Pty Ltd' on a facsimile form giving the Australian Business Number 79 064 101 873 as its ABN. On 11 May 2004 the third respondent signed a letter on the letterhead of 'Nielsen & Moller Autoglass International Pty Ltd' showing as its address '8 10 Durkin Place Peakhurst NSW 2210 Sydney Australia' and giving the Australian Business Number of Nielsen & Moller Autoglass Pty Limited as its ABN. Nielsen & Moller Autoglass International Pty Ltd may have been the then name of Nielsen & Moller Autoglass Pty Limited, but there is insufficient evidence to enable such a conclusion to be drawn.


case_text: am further satisfied that the attachment to the facsimile was itself forwarded by facsimile from the second respondent to the first respondent at about 1.45 pm on 13 September 2005, whereupon it was added by the third respondent to the facsimile cover sheet and then transmitted by him as a three page document, on behalf of the first respondent. The 13 September facsimile was not published by the second respondent (see [5] above and [15]-[16] below; see also Webb v Bloch [1928] HCA 47 ; (1928) 41 CLR 331 at 363-5 per Isaacs J). The applicants' case is that more than 30 copies of the facsimile directed to 'NM Customers' were transmitted to various persons in New South Wales, Queensland, Victoria, Tasmania, South Australia, Western Australia and the Australian Capital Territory on or about 13 September 2005. The second publication took the form of a three page letter (not to be confused with the two page attachment to the 13 September facsimile) to 'Mr Scott Eldridge, Regional Coordinator, Australian Tax Office' from the second respondent bearing date 13 September 2005 ('the ATO letter'). A photocopy of a copy of this letter has become Exhibit C in the proceedings. It is acknowledged by the applicants that the manuscript letter 'C' was not on the copy from which the photocopy was made nor were the words 'SECOND SCHEDULE' or the paragraph numbers appearing in square brackets which have been added by the applicants in the left hand margin for ease of identification. The second respondent has admitted hand delivering the original of the ATO letter to the Hurstville branch of the Australian Tax Office on or about 13 September 2005. The third respondent says that the second respondent did so at his request.


case_title: Sim v Stretch (1936) 52 TLR 669

case_text: as it is suggested that the publications conveyed imputations which were defamatory of the applicants or any of them the test to be applied in determining the question of defamatory meaning is that enunciated by Lord Atkin in Sim v Stretch (1936) 52 TLR 669 at 671, namely, would the words tend to lower the applicants in the estimation of right-thinking members of society generally? In Sim v Stretch there had been a quarrel between neighbours which concerned the vicissitudes of a domestic servant whose fortune it was to be employed at successive times by both the plaintiff and the defendant. The defendant had dictated to the post office at Maidenhead a telegram reading 'Stretch, The Twigs, Cookham Dean. Edith has resumed her service with us to-day. Please send her possessions and the money you borrowed, also her wages, to Old Barton. Sim'. The Statement of Claim in that case, after alleging publication of the words of the telegram to the officials of the post office whose duty it was to transmit and deal with the telegram, alleged in paragraph 7: 'By the said words the defendant meant and was understood to mean that the plaintiff [Stretch] was in pecuniary difficulties, that by reason thereof he had been compelled to borrow and had in fact borrowed money from the said housemaid, that he had failed to pay the said housemaid her wages, and that he was a person to whom no one ought to give any credit'. At the close of the plaintiff's case counsel for the defendant submitted that the words of the telegram were incapable either of the meaning alleged in the innuendo or of any defamatory meaning. Lord Atkin proceeded to say at 671: '... The learned Judge rejected the submission ... It appears to me that the alleged innuendo is fantastic, and that the words used are in their ordinary meaning incapable of being understood by reasonable persons as conveying an imputation on the plaintiff's financial credit. It was, in my opinion, the duty of the Judge so to have held, and to have withdrawn the count alleging the innuendo from the jury. ... ... Judges and text-book writers alike have found difficulty in defining with precision the word "defamatory". The conventional phrase exposing the plaintiff to hatred, ridicule, or contempt is probably too narrow. The question is complicated by having to consider the person, or class of persons, whose reaction to the publication is the test of the wrongful character of the words used. I do not intend to ask your Lordships to lay down a formal definition, but after collating the opinions of many authorities I propose, in the present case, the test: Would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally? Assuming such to be the test of whether words are defamatory or not, there is no dispute as to the relative function of Judge and jury, of law and fact. It is well settled that the Judge must decide whether the words are capable of a defamatory meaning. That is a question of law; is there evidence of a tort? If they are capable, then the jury is to decide whether they are in fact defamatory. In the present case it is material to notice that there is no evidence that the words were published to anyone who had any knowledge at all of any of the facts ... There is no direct evidence that they were published to anyone who had ever heard of the plaintiff. The post office officials at Maidenhead would not be presumed to know him, and we are left without any information as to the officials at Cookham Dean. ... It might, however, be inferred that the publication of the telegram at Cookham Dean was to someone who knew the plaintiff. What would he or she learn by reading the telegram? That Edith Saville had been in the plaintiff's employment; that she had that day entered the defendant's employment; and that the former employer was requested to send on to the new place of employment the servant's possessions, together with the money due to her for money borrowed and for wages. How could perusal of that communication tend to lower the plaintiff in the estimation of the right-thinking peruser who knew nothing of the circumstances but what he or she derived from the telegram itself?' Lord Russell of Killowen and Lord Macmillan concurred with Lord Atkin's reasons.


case_text: as the applicant's case relies upon the assertion that the publications were defamatory, that, in the circumstances of this case, becomes a question of fact for me as the trial judge to determine. The question as to whether the publications were capable of giving rise to the defamatory imputations pleaded has already been addressed (see National Auto Glass Supplies (Australia) Pty Ltd v Nielsen & Moller Autoglass (NSW) Pty Ltd [2006] FCA 1386 ; (2006) 156 FCR 148). In the Third Further Amended Application filed 27 October 2006 in this case the first applicant identified that its claims have arisen under ss 52 , 53 , 55A and 60 of the Trade Practices Act 1974 (Cth) (the ' Trade Practices Act ') and ss 42 , 44 , 50 and 55 of the Fair Trading Act 1987 (NSW) (the ' Fair Trading Act '). In addition, the applicants have indicated that they all claim relief for defamation under the Defamation Act 1974 (NSW), the Wrongs Act 1958 (Vic), the Criminal Code Act 1899 (Qld), the Defamation Act 1889 (Qld), the Criminal Code Act 1913 (WA), the Wrongs Act 1936 (SA), the Defamation Act 1957 (Tas), the Civil Law (Wrongs) Act 2002 (ACT) and the law of Hong Kong and the People's Republic of China. The substantive claims made by the first applicant in the Third Further Amended Application filed 27 October 2006 included claims for orders as follows: 'On the grounds stated in the accompanying Third Further Amended Statement of Claim, the First applicant claims: 1. An order that the respondents are liable to pay damages to the First applicant: (a) under S.82 of the Trade Practices Act and s.68 of the Fair Trading Act ; (b) under S.87 of the Trade Practices Act and s.72 of the Fair Trading Act . 2. A declaration that the Respondents have engaged in misleading and deceptive conduct pleaded in the Second (sic) Further Amended Statement of Claim; 3. Orders under Section 80(1) of the Trade Practices Act and s.65 of the Fair Trading Act restraining the Respondents from engaging in the misleading and deceptive conduct pleaded in the Second (sic) Further Amended Statement of Claim;' In respect of the claims made by all of the applicants in respect of alleged defamation the Third Further Amended Application filed 27 October 2006 contained a claim for substantive relief as follows: 'On the grounds stated in the accompanying Second (sic) Further Amended Statement of Claim, the Applicants claim: 1. An order that the Respondents are liable to pay damages to the Applicants for defamation, including aggravated and exemplary damages. Particulars of aggravated and exemplary damages (a) the failure of the Respondents to apologise; (b) the falsity of the imputations complained of and the knowledge by the Respondents of that falsity prior to publication; (c) the sensationalist presentation of the matters complained of; (d) the failure of the Respondents to make reasonable enquiries of the Applicants including but not limited to ascertaining falsity of the imputations and the failure to ascertain the likely impact upon the Applicants prior to publishing the matters complained of; (e) the failure of the Respondents to make reasonable enquiries of persons other than the Applicants prior to publishing the matters complained of; (f) the malice of the Respondents as particularised in the Applicants' Reply to Amended Defence and Defence to Cross Claim. (g) the repetition of the defamatory imputations in the matters complained of in the following subsequent publications: (i) letter from the Second respondent to ATO dated 4 October 2005; (ii) letter from the Second respondent to the ATO dated 25 October 2005; (iii) email from the Third respondent to the ATO (Nesa Gnanaratnam) dated 22 February 2006; (iv) email from the Third respondent to ATO (Nesa Gnanaratnam) dated 1 March 2006; (v) letter from the Third respondent to the director of ACCC dated 15 March 2006; (vi) letter from the Second respondent to the Honourable Bruce Baird dated 24 March 2006. (vii) email from the Second respondent to Roger Jiang dated 4 August 2006. (viii) email from the First and Third respondents to Curie Chan (sic) dated 4 August 2006. (h) the contemptuous conduct of the Second Respondent by reason of his letter to Robert Yip and Co dated 9 January 2006. (i) the violent verbal assault made by the Third Respondent on the Applicants' lawyers outside the Federal Court on 22 August 2006 (j) the Applicants rely upon the malice of the Second and/or Third respondents infecting the First respondent by reason of them being the guiding minds of the First respondent. (k) the publication of the second matter complained of, after publication of the first matter complained of; (l) the publication of the third matter complained of after publication of the first and second matters complained of.' Section 82 of the Trade Practices Act relevantly provided: '82(1) A person who suffers loss or damage by conduct of another person that was done in contravention of Part ... V ... may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.'


case_text: the context of a motor vehicle accident in New Caledonia in which a New South Wales resident was seriously injured, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said in Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10 ; (2002) 210 CLR 491 at 518 [69] - [70] : 'Two particular questions arise respecting the pleading of foreign law in tort actions. ... The first question is whether it is necessary for the plaintiff to plead the foreign law in order to establish a cause of action. The answer preferred by Dicey is in the negative. In Walker v W A Pickles Pty Ltd , Hutley JA explained: "An action of tort may be brought in New South Wales courts irrespective of where the facts founding the action may have occurred, even if they occurred in a place where there may be no law at all: see Mostyn v Fabrigas . A pleading of a cause of action in tort which did not allege that the facts occurred in any particular law district would be formally valid. On the basis that the utmost economy is enjoined by the rules, it would seem to me that pleading of a foreign element in the initiating process in a claim in tort can never be necessary ... This approach is reinforced by the principle that foreign law, which is, except between the States and the Territories of the Commonwealth, a fact, is presumed to be the same as local law; and a fact presumed to be true does not have to be pleaded: see Supreme Court Rules , Pt 15 , r 10(a)." On the other hand, if the defendant seeks to rely upon a foreign lex causae, then, in the ordinary way, it is for the defendant to allege and prove that law as an exculpatory fact.' (footnotes omitted) Gleeson CJ, McHugh J and Kirby J each found the general presumption that, in the absence of evidence to the contrary, foreign law was the same as Australian law, to be devoid of content in the case before the Court. At 343 [16] Gleeson CJ said: '16 ... I find no assistance in a general presumption that, in the absence of evidence to the contrary, foreign law is the same as Australian law. That might be a rational and practical aid to decision-making in many cases, but, whatever its precise extent, the principle seems to me to be devoid of content in this case. ...' At 396-397 Kirby J said at [202] [204]: '202 The foregoing difficulties, presented by the record, for the ascertainment of the law and practice of China governing Art 146 GPCL, have caused a majority of this Court to invoke a supposed presumption of the common law of evidence. This is to the effect that, in a case where the content of foreign law is significant for the resolution of the issues, and such law is not proved at all or adequately, an Australian court may presume that such law is the same as Australian law. It may decide the case accordingly. 203 Like Gleeson CJ and McHugh J, I derive no assistance from this supposed presumption, at least in a case such as the present. In this case, it involves an unrealistic fiction which has only to be stated for its flaw to be revealed. A presumption that a basic rule of the substantive law of England or some other common law country, in default of proof, is the same as the law of Australia is one that might be justified in a particular case. However, the notion that the law of a country so different, with a legal system so distinct, as China is the same as that of Australia, is completely unconvincing ... 204 With all respect to the majority view, I regard it as straining even credulity to impose on an Australian court the fiction of presuming that the law of China (the place of the wrong), which is an essential element in this case, is the same as the law in Australia. Or that a written law of China would be interpreted and applied by a Chinese court in the same way as an Australian judge would do in construing a similar text.' As I understand the relevant authorities, the general presumption that, in the absence of evidence to the contrary, foreign law is the same as Australian law is not inflexible. Where the law of the forum is governed by a statute and the law within Australia is itself lacking in uniformity, I doubt whether it could be presumed that the defamation law in China, including the Special Administrative Region of Hong Kong, is the same as it is in New South Wales.


case_text: Tisand (Pty) Ltd v Owners of the ship MV "Cape Moreton" (Ex "Freya" ) [2005] FCAFC 68 ; (2005) 219 ALR 48 the 'Cape Moreton' had been arrested by an admiralty marshal of the Court on the application of the plaintiffs in support of a claim for damage to a cargo of zircon sand said to have occurred on a voyage from South Africa to China. Freya Navigation Shipholding Ltd was said to be legally responsible, as carrier, for the damage. A Full Court comprising Ryan and Allsop JJ considered a Notice of Motion brought by Alico Marine Ltd seeking an order that the writ in rem under which the ship had been arrested be set aside. Alico Marine Ltd claimed to be the owner of the ship. The issue before the Full Court was whether Freya was the owner of the ship at the time of the proceedings, given that it was the 'registered owner', or whether Alico was the owner, albeit in a proprietary sense. If Freya was the owner, then the arrest of the ship was warranted, as damage to the cargo had occurred while the ship was in the possession of Freya and prior to the sale of the ship to Alico. In the result the writ in rem was set aside.


case_text: Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54 ; (2005) 223 CLR 331, the High Court was concerned to determine the meaning and manner of application of Article 146 of the General Principles of Civil Law of the People's Republic of China. In that case an Australian living in China had been injured in a fall in an apartment provided for his use by an Australian company. Gummow and Hayne JJ in a joint judgment, Callinan J and Heydon J each concluded that in the absence of evidence to the contrary, it should be presumed that the law of the People's Republic of China with respect to the construction of Article 146 was the same as the law in Western Australia where the case had been brought (at 372 [125], 411 [249] and 420 [275]).