case_text: In Briglia v Commissioner of Taxation [2000] FCA 443 at [6] , Kenny J pointed out that, although s 177(1) of the ITAA may operate to preclude a Court from examining the validity of an assessment once a notice of assessment is tendered, it can only operate provided there has been a bona fide attempt by the Commissioner to exercise the power of assessment, the attempt to exercise the assessment power relates to the subject matter of the ITAA, and the exercise of the assessment power is reasonably capable of reference to the Commissioner's power of assessment. That expression of the limitations upon the apparent scope of s 177(1) is derived from the observations of Dixon J in R v Hickman; Ex parte Fox [1945] HCA 53 ; (1945) 70 CLR 598 at 614. It is clear from Deputy Commissioner of Taxation (Cth) v Richard Walter Pty Ltd [1995] HCA 23 ; (1995) 183 CLR 168 that s 177(1) does not, and cannot, deprive the High Court of its constitutional jurisdiction, and to the extent to which this Court is conferred with such jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth) cannot deprive this Court of its jurisdiction under that provision. The so called Hickman principles, based upon the decision in Hickman , and which formed the basis of Kenny J's observations in Briglia , were considered by the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476. I do not think it is necessary to explore whether the result of the decision in Plaintiff S157/2002 is to explain the application of the Hickman principles in a way which may broaden the capacity of the taxpayer to challenge the due making of an assessment notwithstanding s 177(1). That is simply because, in my view, on any analysis of the allegations made by Mr Jewiss in the Amended Application and in the Amended Statement of Claim, they cannot establish relevantly a failure on the part of the Commissioner in the due making of the assessments.


case_outcome: referred to

case_title: R v Hickman; Ex parte Fox [1945] HCA 53 ; (1945) 70 CLR 598


case_title: Deputy Commissioner of Taxation (Cth) v Richard Walter Pty Ltd [1995] HCA 23 ; (1995) 183 CLR 168


case_title: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476


case_outcome: cited

case_text: In my judgment, the matters which Mr Jewiss now raises in the Amended Application and in the Amended Statement of Claim correspond with the allegations made in the District Court proceedings, including on his appeal to the Full Court of the Supreme Court of South Australia. It would be an abuse of the Court's processes to permit Mr Jewiss to re-litigate in this proceeding the same matters that have previously been determined by the District Court: cf Shumack v Commissioner, Australian Federal Police [2005] FCA 1476 at [4] . There is no prospect of Mr Jewiss now succeeding on those claims because they have already been decided adversely to him.


case_text: The parties in the District Court proceedings and in this proceeding are the same. The allegations generally under the umbrella of bad faith are the same. They relate to the circumstances of and conduct at the search of Mr Jewiss' premises, conduct subsequent to the raid in respect of Mr Jewiss, and use of documents which are allegedly known to be false in making the assessments and issuing the Notices. Those issues were all raised by Mr Jewiss in the District Court proceedings. They have been resolved adversely to him. There is no reason why he should be permitted to re-litigate those matters. It is in precisely such circumstances that the Court in other matters has found there to have been an abuse of process of the Court and to have exercised the power to have dismissed the proceedings: see e.g. Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (Receivers and Managers appointed in Liquidation) (1993) 115 ALR 377 at 398. As Dixon J observed in Blair v Curran [1939] HCA 23 ; (1939) 62 CLR 464 at 531: "A judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies."


case_text: I note that such a course was adopted in Bryant v Commonwealth Bank of Australia (1994) 51 FCR 529 on the basis of an Anshun-type estoppel: see Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589. I accept that, in many cases where the claim is made that there is an estoppel by judgment or an issue estoppel or an Anshun-type estoppel, it is more appropriate for those issues to be determined on pleadings rather than by the summary dismissal of proceedings. But I consider that this case is a clear one, where Mr Jewiss has previously raised and had a full opportunity to ventilate the very matters which he has sought to raise by way of his Amended Application and Amended Statement of Claim and those issues have been determined against him. There is no reason why he should be given a further opportunity to re-ventilate those issues in the present proceeding. 51 In this matter, I do not think there is scope for the Anshun principle to be applied, simply because in my judgment the issues now sought to be raised by Mr Jewiss are the same issues as those he sought to raise in the District Court proceedings and upon which an adjudication adverse to those claims has been made. It is not a matter of him raising matters now which he did not, but could have, raised in the earlier proceedings (cf Anshun at 602-604). It is simply a matter of him now making the same allegations. Perhaps to a minor degree Mr Jewiss now asserts the availability of further or different evidence in support of those allegations than that which he adduced at the hearing before the District Court, but that is to a degree speculative. Even if it were so, the issues themselves have been determined. They have been determined adversely to Mr Jewiss. 52 For those reasons, in my judgment, the claim in the Amended Application and the Amended Statement of Claim have no prospect of success. They have already been decided against Mr Jewiss. Those claims are therefore an abuse of process and should be dismissed. 53 I also accept the contentions of counsel for the Commissioner, that in significant respects the allegations now, and previously made, by Mr Jewiss could not give rise to invalidity of the assessments and of the Notices. The power of search and seizure exists under s 263 of the ITAA. It is not a power which is to be construed in the same way as a search warrant. It does not require routinely the production of a written authority to support the exercise of the power. There was no obligation to produce the written authority in support of the search unless requested, and no request was made (s 263(2)). The fact that Mr Jewiss was not present when the search was carried out does not support any suggestion that it was an improper investigation. The way in which that part of the investigation was carried out was not itself capable of affecting the validity of the assessments or of the Notices. The complaint of the lack of opportunity to assert legal professional privilege in respect of the seized documents is not supported by any evidentiary allegation. It is simply a general allegation which is not made out. It does not in any event go to the validity of the Notices. In addition, as noted above, there is nothing to connect the decision-making process in respect of the Notices with those involved in the search and seizure processes or the method of their implementation.


case_text: The policy informing s 67(1) is plain enough. Fully informed decision-making and finality in respect of determinations relating to the same area are central to it: see also s 13(1) and s 61A(1). This said the section provides no real guidance in making orders under s 67(2) though it is unsurprising that it does not given the varying circumstances that can attend overlap claims. Nonetheless, its purpose seems clearly to be tied to facilitating the orderly and efficient administration of justice where claims overlap: see e.g. Bodney v Western Australia [2001] FCA 297 at [2] . 6 The Arabunna's contentions, in précis form, rely (i) on Mansfield J's apparent lack of reasons for the overlap proceedings orders; (ii) the inability of the Arabunna to be able to prepare for a hearing in July 2007 given the lack of available funding (I would note in passing that while both the Kokatha and Barngarla claimants have been denied funding by the Aboriginal Legal Rights Movement, the Arabunna's funding application has not yet been determined); (iii) the lack of opposition to the motion from the other claimant groups; (iv) the prospect of mediation and settlement of the claims over Overlap Area 20; and (v) the significance of the area to the Arabunna people. 7 In opposition to the claim, the State points out that (i) while at least the Kokatha claim will be resolved under the present arrangements, no single one of the three or possibly four claims will be resolved in its entirety if the motion is successful; (ii) a lack of funding does not excuse an applicant from pursuing an action it brought and neither the Kokatha nor the Barngarla claimants are funded; (iii) Overlap Area 20 is significant to other claimants; (iv) for the Kokatha proceedings to be the subject of a fully informed decision (it being the only full claim being prepared for trial) the whole of its factual matrix should be before the Court especially as material relating to Overlap Area 20 might well inform decision-making relating to the contiguous area which is the subject of overlapping claims between the Kokatha and Barngarla claimants as also the prospective Kuyani-Wilyaru claimants.


case_title: SZCIA v MIMA [2006] FCA 238

case_text: In summary those submissions were that the reason for the Tribunal's decision was that the Tribunal, having read all the material and having evaluated its content and weight was unable to reach the specified mental state; that is the Tribunal was not satisfied that the appellant had a well founded fear of persecution because of subjectively perceived inadequacies in the information ( SZCIA v MIMA [2006] FCA 238 per Allsop J at [12]; SZEZI v MIMIA [2005] FCA 1195 per Allsop J at [29]). This was a finding open to the Tribunal and no error can be found in the approach of the learned Federal Magistrate.


case_title: SZEZI v MIMIA [2005] FCA 1195


case_text: In fact, in Bishop v Bridgelands Securities Ltd (1990) ATPR SS41 -060 Wilcox J held that para (b) was not limited by reference to para (a) of r 2. I respectfully agree. Nonetheless, the first inquiry will always be whether the terms of para (a) are satisfied. If so, the Court will proceed to consider discretionary factors of the kind mentioned above. If not, the Court may still be persuaded in the particular circumstances of the case to exercise the discretion by granting leave, as happened in Bishop v Bridgelands, above. 27 Mr Knight could not have joined S & S and Wiley at the outset because the facts giving rise to his claims against them (the publishing of the two books) occurred subsequently. 28 If a separate proceeding were brought by Mr Knight against S & S and Wiley, it appears that some common questions of law and fact would arise in that proceeding and the present proceeding (see para (i) of r 2(a)), namely, questions relating to Mr Knight's reputation in Australia in connection with the name 'MYTHBUSTERS'. Apparently this will be a strongly contested issue in this proceeding. It may be, however, that even in relation to this issue, there would be differences between the two proceedings, one proceeding relating to Mr Knight's reputation with television viewers and the other relating to his reputation with the buyers and readers of books.


case_text: The rights to relief claimed in the two proceedings would clearly not be 'in respect of or arise out of the same transaction or series of transactions': cf Payne v Young [1979] HCA 39 ; (1980) 145 CLR 609. The evidentiary fields which would be covered by Mr Knight's claim against Beyond, Discovery, SBS and Foxtel in connection with the television series, and that covered by his claim against S & S and Wiley in connection with publication of the two books, would, it seems, be quite different. 30 The inconvenience to the two groups of respondents of having to participate in a hearing in which a substantial number of the issues and a substantial part of the evidence would be no concern of theirs, must be weighed against the inconvenience to Mr Knight of having to prove his reputation (or reputations) in separate proceedings. 31 In my view, the weighing exercise favours the respondents. Mr Knight would not have been entitled under O 6 r 2 to join the publishers as respondents in this proceeding initially, and he should not be allowed to do so now.


case_outcome: followed

case_text: principles which apply where a court is considering whether to appoint a provisional liquidator are well established and the following propositions can be extracted from the authorities: (a) the applicant for the appointment must satisfy the Court that there is a reasonable prospect that a winding-up order will be made at the final hearing: Australian Securities Commission v Solomon (1996) 19 ACSR 73 at 80; (b) an applicant must establish that there is good reason for the Court intervening prior to the final hearing of the winding-up application on the basis that the appointment of a provisional liquidator is required in the public interest or to preserve the status quo or to protect the company's assets from dissipation: Allstate Explorations NL v Batepro Australia Pty Ltd [2004] NSWSC 261 at [30] ; (c) the appointment of a provisional liquidator pending the determination of a winding-up application is a drastic intrusion into the affairs of a company and should not be made if other measures are adequate to preserve the status quo: Zempilas v JN Taylor Holdings Limited (No 2) (1990) 55 SASR 103 at 107; Lubavitch Mazal Pty Ltd v Yeshiva Properties No 1 Pty Ltd [2003] NSWSC 535 ; (2003) 47 ACSR 197 at [217] . Although the power of the Court to appoint a provisional liquidator is unfettered by statute the factors which are often taken into account in determining whether to appoint a provisional liquidator typically include: (a) whether there is a real risk that the assets of the company will be dissipated prior to the time at which a winding-up order is to be made; (b) whether there is a prima facie case for a winding-up order to be made; (c) whether the company's affairs have been conducted in a manner without regard to legal requirements or accepted principles of corporate management: Montgomery Windsor (NSW) Pty Ltd v Ilopa Pty Ltd (1984) 2 ACLC 224 ; Australian Securities Commission v Solomon (supra) at 80; (d) whether in the public interest there is a need for an independent examination of the accounts and financial transactions of the company which are in disarray: Australian Securities Commission v Solomon (supra) at 80. I have had regard to these principles and authorities in preparing these reasons and reaching my conclusions. I consider that the approach to take on an application such as is made by the Commission in the circumstances of this case is usefully summarised by Tamberlin J in Australian Securities Commission v Solomon (supra) at 80: "The relevant principles relating to the appointment of a provisional liquidator which require consideration include the following: (a) The court should only appoint a provisional liquidator where it is satisfied that there is a valid and duly authorised winding up application and that there is a reasonable prospect that a winding up order will be made: see Debelle J in Re J N Taylor Holdings Ltd; Zempilas v J N Taylor Holdings Ltd (1991) 3 ACSR 516 ; 9 ACLC 1 at 12-3. (b) The fact that the assets of the corporation may be at risk is a relevant consideration. (c) The provisional liquidator's primary duty is to preserve the status quo to ensure the least possible harm to all concerned and to enable the court to decide, after a further examination, whether the company should be wound up: Re Carapark Industries Pty Ltd (in liq) (1996) 9 FLR 297; 86 WN (Pt 1) (NSW) 165 at 171. (d) The court should consider the degree of urgency, the need established by the applicant creditor and the balance of convenience: Re Club Mediterranean Pty Ltd (1975) 11 SASR 481 at 484 per Bright J. The power is a broad one and circumstances will vary greatly. Commercial affairs are infinitely complex and various and it is inappropriate to limit the power by restricting its exercise to fixed categories or classes of circumstances or fact. (e) It may be appropriate to appoint a provisional liquidator in the public interest where there is a need for an independent examination of the state of accounts of the corporation by someone other than the directors: Tickle v Crest Insurance Co of Australia Ltd (1984) 2 ACLC 493. (f) Where the affairs of the company have been carried on casually and without due regard to legal requirements so as to leave the court with no confidence that the company's affairs would be properly conducted with due regard for the interests of shareholders, it may be appropriate to appoint a provisional liquidator: see Montgomery Windsor (NSW) Pty Ltd v Illopa Pty Ltd (1984) 2 ACLC 224. "


case_text: principles which apply where a court is considering whether to appoint a provisional liquidator are well established and the following propositions can be extracted from the authorities: (a) the applicant for the appointment must satisfy the Court that there is a reasonable prospect that a winding-up order will be made at the final hearing: Australian Securities Commission v Solomon (1996) 19 ACSR 73 at 80; (b) an applicant must establish that there is good reason for the Court intervening prior to the final hearing of the winding-up application on the basis that the appointment of a provisional liquidator is required in the public interest or to preserve the status quo or to protect the company's assets from dissipation: Allstate Explorations NL v Batepro Australia Pty Ltd [2004] NSWSC 261 at [30] ; (c) the appointment of a provisional liquidator pending the determination of a winding-up application is a drastic intrusion into the affairs of a company and should not be made if other measures are adequate to preserve the status quo: Zempilas v JN Taylor Holdings Limited (No 2) (1990) 55 SASR 103 at 107; Lubavitch Mazal Pty Ltd v Yeshiva Properties No 1 Pty Ltd [2003] NSWSC 535 ; (2003) 47 ACSR 197 at [217] .


case_title: Zempilas v JN Taylor Holdings Limited (No 2) (1990) 55 SASR 103


case_title: Lubavitch Mazal Pty Ltd v Yeshiva Properties No 1 Pty Ltd [2003] NSWSC 535 ; (2003) 47 ACSR 197


case_text: the power of the Court to appoint a provisional liquidator is unfettered by statute the factors which are often taken into account in determining whether to appoint a provisional liquidator typically include: (a) whether there is a real risk that the assets of the company will be dissipated prior to the time at which a winding-up order is to be made; (b) whether there is a prima facie case for a winding-up order to be made; (c) whether the company's affairs have been conducted in a manner without regard to legal requirements or accepted principles of corporate management: Montgomery Windsor (NSW) Pty Ltd v Ilopa Pty Ltd (1984) 2 ACLC 224 ; Australian Securities Commission v Solomon (supra) at 80; (d) whether in the public interest there is a need for an independent examination of the accounts and financial transactions of the company which are in disarray: Australian Securities Commission v Solomon (supra) at 80. I have had regard to these principles and authorities in preparing these reasons and reaching my conclusions. I consider that the approach to take on an application such as is made by the Commission in the circumstances of this case is usefully summarised by Tamberlin J in Australian Securities Commission v Solomon (supra) at 80: "The relevant principles relating to the appointment of a provisional liquidator which require consideration include the following: (a) The court should only appoint a provisional liquidator where it is satisfied that there is a valid and duly authorised winding up application and that there is a reasonable prospect that a winding up order will be made: see Debelle J in Re J N Taylor Holdings Ltd; Zempilas v J N Taylor Holdings Ltd (1991) 3 ACSR 516 ; 9 ACLC 1 at 12-3. (b) The fact that the assets of the corporation may be at risk is a relevant consideration. (c) The provisional liquidator's primary duty is to preserve the status quo to ensure the least possible harm to all concerned and to enable the court to decide, after a further examination, whether the company should be wound up: Re Carapark Industries Pty Ltd (in liq) (1996) 9 FLR 297; 86 WN (Pt 1) (NSW) 165 at 171. (d) The court should consider the degree of urgency, the need established by the applicant creditor and the balance of convenience: Re Club Mediterranean Pty Ltd (1975) 11 SASR 481 at 484 per Bright J. The power is a broad one and circumstances will vary greatly. Commercial affairs are infinitely complex and various and it is inappropriate to limit the power by restricting its exercise to fixed categories or classes of circumstances or fact. (e) It may be appropriate to appoint a provisional liquidator in the public interest where there is a need for an independent examination of the state of accounts of the corporation by someone other than the directors: Tickle v Crest Insurance Co of Australia Ltd (1984) 2 ACLC 493. (f) Where the affairs of the company have been carried on casually and without due regard to legal requirements so as to leave the court with no confidence that the company's affairs would be properly conducted with due regard for the interests of shareholders, it may be appropriate to appoint a provisional liquidator: see Montgomery Windsor (NSW) Pty Ltd v Illopa Pty Ltd (1984) 2 ACLC 224. "


case_text: was satisfied that it was appropriate, and in a number of respects necessary to appoint a provisional liquidator of the third, fourth, fifth, sixth, eighth and ninth defendants for a number of reasons which included prima facie evidence of insolvency of some of the defendants. There was also a considerable body of evidence led by the Commission that there were numerous instances of inter-company transactions and loans involving substantial sums of money which were not documented. As I observed in my earlier reasons for judgment on 13 February 2009 when I put in place a number of restraining orders, all the corporate defendants in this proceeding, at relevant times, were controlled, or had involved in their activities, one or both of the first defendant, Mr Clestus Weerappah, and the second defendant, Ms Andrea Hawkins: Australian Securities and Investments Commissions v Weerappah [2009] FCA 164. I set out in those reasons for judgment a summary of relevant parts of evidence which was given by Ms Hawkins and Mr Weerappah. In par [31] of those reasons for judgment I said: "...I am particularly concerned about Ms Hawkins' seeming inability to identify the particular borrowers and lenders involved in a number of transactions which were the subject of evidence by her, and her inability to distinguish which company in the group of companies with which she was involved is entitled to receive, or obliged to pay moneys, or discharge liabilities of other companies in the group. Subsequent to the delivery of those reasons for judgment, Ms Hawkins swore two affidavits in which she explained a number of the financial transactions which are under investigation by the Commission. However, those affidavits, particularly in the light of other evidence relied upon by the Commission, still leave significant doubt and concern in my mind as to the credibility of Ms Hawkins' explanation for a number of those financial transactions, particularly those transactions which have not been documented properly or at all. The background to the commencement of this proceeding by the Commission is set out in my earlier reasons for judgment and I do not repeat that background. It should be read in conjunction with these reasons for judgment.


case_text: In Citrix Systems Inc v Telesystems Learning Pty Ltd (in liq) (1998) 28 ACSR 529, Moore J made an order that a company be wound up in insolvency in circumstances where it was being wound up voluntarily, and there was no suggestion that an order terminating the voluntary winding up was necessary. 18 In the authorities, various reasons for making an order in such circumstances have been put forward and held to be sufficient. One reason which has commonly been put forward is that a change of liquidator is desirable. That reason will be sufficient if the liquidator has not given the appearance of being independent: Citrix Systems Inc v Telesystems Learning Pty Ltd (in liq) (supra) per Moore J at 535-537, but, on the other hand, a mere desire to replace a liquidator is not sufficient: Re Green (as liq of Australian Resources Ltd (in liq)) (supra). The fact that an insurance policy responding to claims for insolvent trading by directors may cover such claims only if the liquidator is appointed by the court may be a sufficient reason: Re Green (as liq of Australian Resources Ltd (in liq)) (supra), as may the fact that a charge or certain dispositions of property may only be challenged if the court has ordered the company to be wound up under s 459A: Carter (as liq of New Tel Ltd (in liq)) v New Tel Ltd (in liq) (supra).


case_title: Re Green (as liq of Australian Resources Ltd (in liq)) (2004) 52 ACSR 452

case_text: In Re Green (as liq of Australian Resources Ltd (in liq) (2004) 52 ACSR 452, Barrett J made an order that the company be wound up in insolvency in circumstances where it was the subject of a creditors' voluntary winding up arising from a voluntary administration under Pt 5.3A and there was no suggestion that an order terminating the voluntary winding up was necessary. 16 In the circumstances, the Registrar's lack of power to make orders under s 482 is no obstacle to her power to make an order winding up the company in insolvency. 17 A court will not make an order winding up a company in insolvency in circumstances in which the company is already the subject of creditors' voluntary winding up unless there is good reason to do so: Carter (as liq of New Tel Ltd (in liq)) v New Tel Ltd (in liq) (2003) 44 ACSR 661 per Austin J at 663(5); Re Green (as liq of Australian Resources Ltd (in liq)) (supra) per Barrett J at 453 [5]. The reason for this is that, in the ordinary case, there is little practical difference between a creditors' voluntary winding up and a form of winding up imposed by order of the court. 18 In the authorities, various reasons for making an order in such circumstances have been put forward and held to be sufficient. One reason which has commonly been put forward is that a change of liquidator is desirable. That reason will be sufficient if the liquidator has not given the appearance of being independent: Citrix Systems Inc v Telesystems Learning Pty Ltd (in liq) (supra) per Moore J at 535-537, but, on the other hand, a mere desire to replace a liquidator is not sufficient: Re Green (as liq of Australian Resources Ltd (in liq)) (supra). The fact that an insurance policy responding to claims for insolvent trading by directors may cover such claims only if the liquidator is appointed by the court may be a sufficient reason: Re Green (as liq of Australian Resources Ltd (in liq)) (supra), as may the fact that a charge or certain dispositions of property may only be challenged if the court has ordered the company to be wound up under s 459A: Carter (as liq of New Tel Ltd (in liq)) v New Tel Ltd (in liq) (supra).


case_title: Carter (as liq of New Tel Ltd (in liq) v New Tel Ltd (in liq) (2003) 44 ACSR 661

case_text: A court will not make an order winding up a company in insolvency in circumstances in which the company is already the subject of creditors' voluntary winding up unless there is good reason to do so: Carter (as liq of New Tel Ltd (in liq)) v New Tel Ltd (in liq) (2003) 44 ACSR 661 per Austin J at 663(5); Re Green (as liq of Australian Resources Ltd (in liq)) (supra) per Barrett J at 453 [5]. The reason for this is that, in the ordinary case, there is little practical difference between a creditors' voluntary winding up and a form of winding up imposed by order of the court.


case_text: 10(2) should also be read with s 16 of the AD(JR) Act which makes it clear that the grant of relief pursuant to the AD(JR) Act is discretionary: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 per Mason CJ at 338; and Wyeth Australia Pty Ltd v Minister for Health & Aged Care (2000) 61 ALD 372; [2000] FCA 330.


case_outcome: approved

case_text: respondents submit that with respect to an application before this Court to review the second respondent's decision of 5 May 2005 to direct the applicant to attend a psychiatric assessment under subs 36(3) of the SRC Act, the proceedings in the AAT make adequate provision for this decision to be reviewed on its merits: see Comcare v Sassella [2001] FCA 1514 ; (2001) 34 AAR 142. In the circumstances, the respondents submit that it would be appropriate for the Court to exercise its discretion under subs 10(2)(b) of the AD(JR) Act and refuse to grant this part of the application. Section 10 of the AD(JR) Act, so far as is relevant, provides: '10(1) The rights conferred by sections 5, 6 and 7 on a person to make an application to the Federal Court or the Federal Magistrates Court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision or in respect of a failure to make a decision: (a) are in addition to, and not in derogation of, any other rights that the person has to seek a review, whether by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure; and ... (2) Notwithstanding subsection (1): ... (b) the Federal Court or the Federal Magistrates Court may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason: (i) that the applicant has sought a review by the court, or by another court, of that decision, conduct or failure otherwise than under this Act; or (ii) that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure. (3) In this section, review includes a review by way of reconsideration, re-hearing, appeal, the grant of an injunction or of a prerogative or statutory writ or the making of a declaratory or other order.'


case_title: Wyeth Australia Pty Ltd v Minister for Health & Aged Care (2000) 61 ALD 372; [2000] FCA 330


case_title: General Steel Industries Inc v Commissioner of Railways ( NSW ) [1964] HCA 69 ; (1964) 112 CLR 125

case_text: The standard to be applied before a pleading is struck out is that the claim must be 'so clearly untenable that it cannot possibly succeed': General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 130. I am conscious that this is an early stage of the proceeding. Bearing in mind what the Amended Statement of Claim states concerning the relationship between the brothers and their companies, I am not prepared to conclude at this stage that the claim of wrongful interference with contractual rights is so untenable that it cannot possibly succeed. 10 As to the question whether or not the claim is properly pleaded, in my view there is no deficiency in the pleading: the material facts are pleaded and particulars are provided in support of the claim. It is simply a question of whether the facts alleged and the particulars provided make out a tenable claim. I am satisfied that the claim is sufficiently arguable that it should not be struck out. 11 I turn to deal with the causes of action concerning the allegation that the third applicant's plant breeder's rights have been infringed. The attack on this part of the pleading was based on submissions which, at least to some extent, involved a misapprehension of what is required by the rules of pleading and the authorities. In the first place, the respondents submitted (by reference to the paragraph concerning the Rich Lady plant breeder's rights allegations) that allegations in paragraphs 34 to 38 were in the nature of conclusions of law. In my opinion, that characterisation is not apposite. Paragraphs 34 to 38 make allegations of material fact, and are expressed in language which reflects the facts required to be established under ss 3, 11 and 53(1)(a) of the PBR Act, in order to establish an infringement of plant breeder's rights. That does not mean that what is alleged is a conclusion of law.


case_text: Order 11 r 2(a) of the Federal Court Rules ('the Rules') requires that a pleading shall contain only 'a statement in summary form of the material facts on which the party relies, but not the evidence by which those facts are to be proved'. The purpose of pleadings is to define the issues and to inform the other parties of the case that they must meet: Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664. In distinguishing between material facts and evidence, the pleader must choose an appropriate level of generality in which to express the material facts that is consistent with the purposes to be achieved by the pleadings.


case_text: The Rules do not compel the pleader to adopt so detailed an approach to the identification of material facts that it would unduly lengthen or complicate a pleading, or, to use the language of Burchett J in Scott v Beneficial Finance Corporation Ltd (unreported, Burchett J, 14 December 1996), throw up 'an impenetrable forest of detail'. A statement of claim is not defective merely because it pleads what might be said to be conclusions of fact at a higher level of generality than the primary facts that must be proved by evidence. So much clearly appears from the decision of French J in Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171 at 173; see also BWK Elders Australia Pty Ltd v Westgate Wool Co Pty Ltd (No 2) [2002] ATPR 41-860 at 44,748 [15] per Mansfield J.


case_title: Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171


case_title: BWK Elders Australia Pty Ltd v Westgate Wool Co Pty Ltd (No 2) [2002] ATPR 41-860


case_outcome: considered

case_text: Mr Caine, senior counsel for the applicants, referred me to several authorities dealing with a like provision to O 58 r 27(1) concerning patent pleadings: see s 117 of the Patents Act 1990 (Cth) and Dart Industries Inc v David Jones Ltd [1990] AIPC 90-689 (' Dart v David Jones' ); and Dart Industries Inc v Grace Bros Pty Ltd (1990) 18 IPR 87 (' Dart v Grace Bros' ). 24 In Dart v David Jones , King J considered the sufficiency of a pleading and particulars of patent infringement which alleged that the plaintiff retailer had possessed for sale, offered for sale, offered for supply, sold or supplied certain press type sealed containers. His Honour referred to the equivalent provision of the Industrial Property Rules (Vic) and concluded that the particulars were adequate, having regard to the pre-discovery stage of the proceedings: at 36,412-36,413. His Honour concluded that the particulars were sufficient to apprise the other side of the nature of the case they had to meet. King J added that, on the face of it, a marketing company such as David Jones should know what it has sold, or should have access to records from which such information may be ascertained: at 36,414.


case_text: Mr Caine, senior counsel for the applicants, referred me to several authorities dealing with a like provision to O 58 r 27(1) concerning patent pleadings: see s 117 of the Patents Act 1990 (Cth) and Dart Industries Inc v David Jones Ltd [1990] AIPC 90-689 (' Dart v David Jones' ); and Dart Industries Inc v Grace Bros Pty Ltd (1990) 18 IPR 87 (' Dart v Grace Bros' ). 25 In Dart v Grace Bros, another case involving a retailer, the defendants argued that the particulars alleging the instances of sales of goods were inadequate. Marks J held that it was appropriate, given the early stage of the pleading, to accept the adequacy of the particulars that had been given. In reaching this conclusion, his Honour referred to the fact that more detailed information was not in the possession of the plaintiff, but it was clearly within the possession of the manufacturers and retailers of the products. In addition, Marks J observed that defendants failed to put on affidavit that they did not deal in the subject goods at the relevant time. His Honour noted that defendants were well aware that 'they and they alone hold the key to the solution of the problem whether they deal in these goods or not': at 89. 26 In my view, there are distinctions between the above authorities and the present case. The principal allegation against the respondents is that they have grown trees of the relevant varieties in the course of their orchard and wholesale fruit business and that they have sold fruit of the relevant variety. The facts particularised go no further than raising a case of that kind. While the relevant particulars can support (at least to the necessary threshold stage in a pleading) the allegations in, for instance paragraphs 34(a), (b) and (e), they do not lend any support to the allegations in paragraphs 34(c) and (d). Accordingly, I propose to strike out the unsupported subparagraphs (c) and (d) in paragraphs 34 to 52 of the Amended Statement of Claim. 27 Mr Hess, senior counsel for the respondents, argued that the other allegations of infringement of plant breeder's rights were not supported by material facts. It was argued that the particulars merely identify that trees have been found in existence at the properties and, in the case of Arctic Star and Earliqueen, provide some factual material indicating sales. In my view, a sufficient case is raised by the allegations that have been pleaded and the facts that have been particularised. The respondents' attack on the other aspects of the pleadings concerning contravention of plant breeder's rights therefore fails. 28 The respondents criticised other minor aspects of the pleading in argument. The respondents argued that some illogicality or inconsistency arose because paragraphs 4, 5 and 8 of the Amended Statement of Claim allege that each of Fred, Bruno and Tony are and were at all relevant times in effective control of fourth and fifth respondents. Mr Caine submitted that there was no logical inconsistency in alleging that each of the brothers was in effective control of the two companies. Be that as it may, Mr Caine indicated that if pleading requires some attention, it would be appropriate to address this matter by adding some words to paragraphs 4(f), 5(e) and 8(e) of the Amended Statement of Claim, to the effect that the relevant individual was in effective control 'either alone or in conjunction with his brothers'. I consider that the additional words suggested by Mr Caine may assist the clarity of the pleading; however I decline to make a specific finding that the pleading as it stands is illogical or inconsistent in this regard. 29 It was also submitted that there were deficiencies or pleading inadequacies in relation to the allegations of breach of contract in the Amended Statement of Claim. I do not accept these submissions. The breach of contract claims are pleaded at an appropriate level of generality, and the particulars are capable of supporting the allegations.


case_title: Rainsford v Victoria [2001] FMCA 115

case_text: The first proceeding was commenced in this Court against the State and concerned the transport claim only. It was remitted to the Federal Magistrates Court on 28 September 2001. In the Federal Magistrates Court McInnis FM delivered judgment on 28 November 2001 dismissing Mr Rainsford's application on the grounds that the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act) and the DDA did not bind the State of Victoria: Rainsford v Victoria [2001] FMCA 115. Subsequent to this order, the HREOC Act was amended retrospectively to bind the State. Mr Rainsford appealed to the Full Federal Court which, by consent, ordered that the appeal be allowed and the matter remitted to the Federal Magistrates Court.


case_text: The second proceeding was filed in the Federal Magistrates Court on 8 November 2001 against both current respondents. It concerned the Charlotte Management Unit claim and was consolidated with the proceeding remitted from the Full Federal Court. The combined proceeding was heard before Bryant CFM in September 2003. In June 2004, before she had delivered judgment, the Chief Federal Magistrate was appointed Chief Justice of the Family Court. Regrettably, the matter had to be reheard before a different Federal Magistrate, Raphael FM. That hearing took place on 26 27 August 2004 and was, pursuant to a direction made by the Federal Magistrate, a hearing of certain separate questions. Raphael FM answered the two separate questions adversely to Mr Rainsford and, in consequence of those unfavourable answers, dismissed the entire proceeding: Rainsford v Victoria [2004] FMCA 707 ; (2004) 184 FLR 110.


case_text: Mr Rainsford then appealed to the Full Federal Court which unanimously found that the separate questions posed by Raphael FM were inappropriate to answer because they relied on facts that had not been found or agreed between the parties: Rainsford v Victoria [2005] FCAFC 163 ; (2005) 144 FCR 279. The Full Court remitted the matter back to the Federal Magistrates Court. 12 Finally, on 6 December 2005, after hearing submissions from counsel, Walters FM determined that it was appropriate to transfer the proceeding to this Court. No party objected to this course. 13 I must also mention a related proceeding. In September 2001, Mr Rainsford commenced a related proceeding in the Supreme Court of Victoria seeking judicial review of the decision to move him to the Charlotte Management Unit. That proceeding was dismissed on 23 November 2001. It is not challenged in this proceeding, and nor could it be. I mention it only because some of the affidavit evidence given in that proceeding has been put in evidence before me. 65 Some assistance on this question is to be gained from the obiter comments of Kenny J (with whom Hill and Finn JJ agreed) in the Full Court in this case. To begin with, however, it is important to note Kenny J's caveat at Rainsford v Victoria [2005] FCAFC 163 ; (2005) 144 FCR 279 at [52] : "The absence of findings of fact makes it very difficult indeed to provide any guidance to the parties on any substantive matter. An expression of opinion by this Court may be misleading because it is based on a misconception of the facts that are ultimately found ... With this in mind, only some very brief comments may be made about [the Federal Magistrate's] reasons in relation to the ['service'] question." Her Honour made those brief comments at [2005] FCAFC 163 ; 144 FCR 279 at [54] [55]: "[54] Section 4(1) provides an inclusive definition of services and that, amongst other things, unless the contrary intention appears, "services" includes "services of the kind provided by a government, a government authority or a local government body" (par (f)). As [the Federal Magistrate] recognised, on account of its remedial character, the DDA is to be generously construed and the word 'services' includes all matters which ordinarily fall within that notion: see IW v City of Perth at 11-12 per Brennan CJ and McHugh J; 22-23 per Dawson and Gaudron JJ; 27 per Toohey J; 39, 41-42 per Gummow J; and 69-70 per Kirby J. The identification of the 'service' at issue in any case is a question of fact for the trier of fact: see Waters at 361 per Mason CJ and Gaudron J, with whom Deane J relevantly agreed (382); 394 per Dawson and Toohey JJ; and 404-405 per McHugh J; and also Catholic Education Office at [12]-[13] per Tamberlin J and [102] per Sackville and Stone JJ. The question of whether an activity is a service for the purposes of s 24 of the DDA is essentially a matter of characterisation. In discharging statutory duties and functions and in exercising statutory powers in the public interest, a body may also be engaged in the provision of services to particular individuals: see IW v City of Perth at 44 per Gummow J; also 12-13 per Brennan CJ and McHugh J; 24 per Dawson and Gaudron JJ; 29 per Toohey J; and 72 per Kirby J. The Federal Magistrate erroneously relied on a distinction that he drew between the provision of services pursuant to a statutory discretion and "the situation ... where no discretionary element exists": see [17]. [55] In addition to the management and security of prisons, the purposes of the Corrections Act 1986 (Vic) include provision for the welfare of offenders. The custodial regime that governs prisoners under this Act is compatible with the provision of services to them: see, eg, s 47. Indeed, this proposition is fortified by the provisions of the [Prison Services] Agreement to which counsel for Mr Rainsford referred on the hearing of the appeal (see [21]). In discharging their statutory duties and functions and exercising their powers with respect to the management and security of prisons, the respondents were also providing services to prisoners. The fact that prisoners were unable to provide for themselves because of their imprisonment meant that they were dependent in all aspects of their daily living on the provision of services by the respondents. Although the provision of transport and accommodation would ordinarily constitute the provision of services, whether the acts relied on by Mr Rainsford will constitute services for the DDA will depend upon the findings of fact, which are yet to be made and, in particular, the identification of the acts that are said to constitute such services." 79 I am conscious of the arguments made by Mr Rainsford relying on the provisions of the Corrections Act and the Prison Services Agreement; they are referred to in the passage of the judgment of Kenny J in the Full Court in this matter that I have set out at [65]. Attending to the welfare of prisoners is an important legal obligation placed on both respondents. This is all the more so given the vulnerabilities of prisoners who are unable to do much to control their circumstances within prisons. It is for this reason that I accept that certain facilities provided by the respondents to prisoners may constitute services for the purposes of the DDA. However, for the reasons I have identified, I do not consider either of the postulated services to fit the definition in the DDA. In addition, it is important not to focus only on the prisoner welfare purposes of the Corrections Act and the Prison Services Agreement. The first purpose listed in the Corrections Act is "to provide for the establishment management and security of prisons and the welfare of prisoners": s 1(a). This purpose demonstrates the balancing act that prison authorities must perform. Their obligations are not just to the welfare of prisoners but also to the general public and prison staff through providing adequate security measures, to other prisoners by ensuring that prisoners do not harm one another, and to the general good governance of the prison. To suggest that transport of prisoners or cell accommodation is a service to prisoners is to ignore the fact that they are functions performed in order to comply with the sometimes competing obligations of prison management to its prisoners, its staff, the public and the good governance of the prison. 80 The parties did not argue for any difference in result depending on whether transportation and accommodation were analysed as involving the provision of a service or the making available of a facility. I agree that in this case there is no relevant difference. Neither activity can be described as a facility any more than as a service. 81 Having concluded that the respondents did not provide a relevant service or make available a relevant facility, the application must be dismissed. In case a contrary view should be taken on this point, I will consider the other aspects of the applicant's claim.


case_text: Some assistance on this question is to be gained from the obiter comments of Kenny J (with whom Hill and Finn JJ agreed) in the Full Court in this case. To begin with, however, it is important to note Kenny J's caveat at Rainsford v Victoria [2005] FCAFC 163 ; (2005) 144 FCR 279 at [52] : "The absence of findings of fact makes it very difficult indeed to provide any guidance to the parties on any substantive matter. An expression of opinion by this Court may be misleading because it is based on a misconception of the facts that are ultimately found ... With this in mind, only some very brief comments may be made about [the Federal Magistrate's] reasons in relation to the ['service'] question." Her Honour made those brief comments at [2005] FCAFC 163 ; 144 FCR 279 at [54] [55]: "[54] Section 4(1) provides an inclusive definition of services and that, amongst other things, unless the contrary intention appears, "services" includes "services of the kind provided by a government, a government authority or a local government body" (par (f)). As [the Federal Magistrate] recognised, on account of its remedial character, the DDA is to be generously construed and the word 'services' includes all matters which ordinarily fall within that notion: see IW v City of Perth at 11-12 per Brennan CJ and McHugh J; 22-23 per Dawson and Gaudron JJ; 27 per Toohey J; 39, 41-42 per Gummow J; and 69-70 per Kirby J. The identification of the 'service' at issue in any case is a question of fact for the trier of fact: see Waters at 361 per Mason CJ and Gaudron J, with whom Deane J relevantly agreed (382); 394 per Dawson and Toohey JJ; and 404-405 per McHugh J; and also Catholic Education Office at [12]-[13] per Tamberlin J and [102] per Sackville and Stone JJ. The question of whether an activity is a service for the purposes of s 24 of the DDA is essentially a matter of characterisation. In discharging statutory duties and functions and in exercising statutory powers in the public interest, a body may also be engaged in the provision of services to particular individuals: see IW v City of Perth at 44 per Gummow J; also 12-13 per Brennan CJ and McHugh J; 24 per Dawson and Gaudron JJ; 29 per Toohey J; and 72 per Kirby J. The Federal Magistrate erroneously relied on a distinction that he drew between the provision of services pursuant to a statutory discretion and "the situation ... where no discretionary element exists": see [17]. [55] In addition to the management and security of prisons, the purposes of the Corrections Act 1986 (Vic) include provision for the welfare of offenders. The custodial regime that governs prisoners under this Act is compatible with the provision of services to them: see, eg, s 47. Indeed, this proposition is fortified by the provisions of the [Prison Services] Agreement to which counsel for Mr Rainsford referred on the hearing of the appeal (see [21]). In discharging their statutory duties and functions and exercising their powers with respect to the management and security of prisons, the respondents were also providing services to prisoners. The fact that prisoners were unable to provide for themselves because of their imprisonment meant that they were dependent in all aspects of their daily living on the provision of services by the respondents. Although the provision of transport and accommodation would ordinarily constitute the provision of services, whether the acts relied on by Mr Rainsford will constitute services for the DDA will depend upon the findings of fact, which are yet to be made and, in particular, the identification of the acts that are said to constitute such services." 66 In IW v City of Perth [1997] HCA 30 ; (1997) 191 CLR 1 the High Court considered the meaning of 'service' in the Equal Opportunity Act 1984 (WA), the provisions of which are for present purposes identical to those of the DDA. The case was a discrimination claim brought on behalf of an association of people with AIDS. They had sought and been refused planning approval from the City of Perth to build a drop-in centre for people affected by AIDS. They alleged that the decision to refuse the planning permit discriminated against the group on the basis that its members had AIDS. The majority of the High Court found against the association. 67 Brennan CJ and McHugh J said that a council considering planning approvals is not engaged in the provision of a service. They said, at IW 191 CLR at 11: "The term 'services' has a wide meaning. The Macquarie Dictionary relevantly defines it to include 'an act of helpful activity'; 'the providing or a provider of some accommodation required by the public, as messengers, telegraphs, telephones, or conveyance'; 'the organised system of apparatus, appliances, employees, etc, for supplying some accommodation required by the public'; 'the supplying or the supplier of water, gas, or the like to the public'; and 'the duty or work of public servants'. But wide as the definition is, in our opinion it is not capable of including a refusal to exercise the statutory discretion provided for by the Town Planning and Development Act 1928 (WA) and Clause 40 of the City of Perth City Planning Scheme to approve the use of premises for use other than as a shop." Further on, at IW 191 CLR at 18, they said: "The process by which the Council considers applications for approvals is not in our view arguably describable as a service that it provides to applicants for planning approval. Rather it is a power to process applications for the protection and general benefit of the residents of the City." (Emphasis in original) 68 Dawson and Gaudron JJ took a somewhat different view. They began by noting, at IW 191 CLR at 23, that "'services', a word of complete generality, should not be given a narrow construction unless that is clearly required by definition or by context". However, where Brennan CJ and McHugh J found that the Council did not provide a service, Dawson and Gaudron JJ held that there was a service, but that it needed to be properly identified. They identified the service as "the exercise of a discretion to grant or withhold planning approval", and when so identified it was apparent that the Council had not failed to provide a service. The Council had considered the application for planning approval and had exercised its discretion, albeit contrary to the wishes of the association. 69 Gummow J had a similar view to that of Dawson and Gaudron JJ, saying, at IW 191 CLR at 44, that: "There is no reason in logic or good sense to deny the proposition that the Council may be engaged in the provision of services, not only to the community as a whole, but also to individual applicants who invoke the exercise of the powers of the Council under the town planning law. There is no dichotomy here between the discharge of statutory functions and the provision of services to those seeking the discharge of these functions." Like Dawson and Gaudron JJ, Gummow J found that the Council had not refused to provide the relevant service, since it had considered the application and refused it. 70 Toohey J dissented on the services point. He agreed with Dawson and Gaudron JJ and Gummow J that the Council provided a service, but said that classifying the service as the consideration of applications for planning permits was too narrow. His Honour said at IW 191 CLR at 28: "If the service is seen as the consideration of the application and its disposition and if it appears that the Council refused the application on the ground of impairment, why is that not discrimination 'in the manner in which the first-mentioned person provides the other person with those ... services'? Consideration of an application is of itself hardly a service; it is the disposition of the application which either provides or refuses the service. In the manner of that refusal there may be discrimination." 71 Kirby J also dissented, concluding, at IW 191 CLR at 75 that "[t]he word 'service' is wide enough to sustain the appellant's submission." 72 The judgments in IW are clearly dependent on the particular fact situation of that case, but some general propositions can be identified. First, not all government functions are services, although some undoubtedly are. Second, as the difference between Dawson, Gaudron and Gummow JJ on the one hand, and Toohey and Kirby JJ on the other hand demonstrates, the way in which the service is identified is critical. It is a question of fact determined by the situation of the particular case. 73 Counsel for the State suggested that the touchstone for service should be whether the act involves helpful or beneficial activity: IW 191 CLR at 11 per Brennan CJ and McHugh J. I accept that this is a useful test, but in a qualified way. Most activities are helpful or beneficial to someone. That in itself does not make them services. The question must be whether the act is helpful or beneficial to the relevant class of persons to which the person alleging discrimination belongs. There is little doubt that GSL provides a service to the State: there was in evidence parts of the Prison Services Agreement between the State and ACF and further evidence that ACF sub-contracted its obligations to GSL. Were it not for the decision of the Court of Appeal in Farah v Commissioner of Police of the Metropolis [1998] QB 65, I would have thought that the State, by maintaining a prison system, provides a service to the general public. However, in Farah , where the alleged discriminator was the police, it was held that assisting and protecting members of the public is a service but that pursuing, arresting and charging criminals is not. To my mind, the pursuit of criminals is so much a part of protecting the members of the public that a distinction between them is hard to justify, but I need not pursue this. These services for the benefit of the State or the general public are not to the point. The question in this case is whether the respondents provide a service to the relevant class to which Mr Rainsford belongs, namely prisoners. 83 For each of his two claims, that requirement or condition has been differently formulated. As the judgments in IW [1997] HCA 30 ; 191 CLR 1 demonstrate, the precise formulation of the requirement or condition is critical. For the transport claim, Mr Rainsford says that the requirement or condition was that he be transported between prisons without access to conditions which would have protected his back. For their part, the respondents say that there are two services and that the condition only relates to the second. The first service is the provision of regular scheduled transport available to all prisoners. The second is the provision of separate special transport in circumstances where the regular transport was unavailable or inappropriate. The condition (or at least one of them) attaching to this second service is that the prisoner first obtain a medical certificate demonstrating a need for particular special transport. 84 I do not think either Mr Rainsford or the respondents accurately states both the service and its condition. On the evidence it is not correct to say that prisoners were offered a transport service that did not allow them access to conditions relevant to any medical problems. On the contrary, the evidence established that there were alternative transport arrangements available to those prisoners who demonstrated a need for them. I therefore reject Mr Rainsford's formulation of the condition. The respondents' formulation artificially divides transport into two categories, one for the able-bodied travelling at times when the regular service is available, the other for those with special requirements or travelling when the regular service is unavailable. 85 In my view, if there is a service (which, for the reasons set out above, I reject) then it is appropriate to classify it broadly, so as to encompass prison transport generally. The relevant condition which attaches to the service is that a prisoner who for medical reasons is unfit to take the regular transport service must first obtain a medical certificate stating that alternative transport arrangements should be made.


case_text: Part of the error I have just referred to comes from a failure on the part of Mr Rainsford to articulate with precision what service he contends for. The importance of this exercise was stressed by the High Court in Waters v Public Transport Corporation [1991] HCA 49 ; (1991) 173 CLR 349. In that case, McHugh J said at 404 5: "the goods or services which must be identified are those goods or services which are relevant to the complainant or any person or persons whom the complainant represents. Before there can be a finding of discrimination by a person in relation to the provision of goods or services, therefore, the relevant goods or services must be identified with sufficient precision to relate them to the facts of the case and the issues which arise for determination. If a person is alleged to have refused to perform services, eg, the services in question must be identified in sufficiently concrete terms to enable the Board to determine whether or not there has been a refusal to perform those services. What is a sufficiently precise identification of the service in one case may be too general in another. If the discrimination alleged was the refusal to allow impaired persons to travel on trams to St Kilda, it would be meaningless to identify the service provided as 'the public transport system'. If, however, the discrimination alleged was the refusal to allow impaired persons to travel on trams generally, 'transportation of members of the public by trams' might identify the service with sufficient precision to enable the relevant issues to be resolved." 76 In his outline of submissions, Mr Rainsford identifies the relevant service as "prison management and control, including the control of cell accommodation and transport between prisons". In my view, such a wide identification of service is meaningless; it is, in effect, no more than "prison management and control". The two activities complained of by Mr Rainsford are, first, the transportation of prisoners between prisons and between a prison and court and, second, the accommodation of prisoners in cells within the prison system. This is the appropriate level of precision with which to identify the alleged services. So identified, I am of the view that neither constitutes a service for the purpose of the DDA. 77 At [74] I postulated what would have happened had no transport been available to prisoners. The question is entirely hypothetical since transport is an inherent part of incarceration. Prisoners on remand must attend court for their hearings. Prisoners in low-security prisons who are re-classified must be moved to higher-security prisons. The prison system simply could not function without prison transport. It is an artificial use of the word service to apply it to a fundamental integer of a system over which those affected have no or almost no control. 82 The discrimination that the respondents are alleged to have engaged in is indirect discrimination as defined in s 6 of the DDA. In order to satisfy this definition Mr Rainsford must show that he was required to comply with a requirement or condition. In responding to the requirements that Mr Rainsford claims he was unable to comply with, the respondents raised a number of different arguments. One argument was that the alleged conditions were negative and that the DDA does not apply to a negative condition. Another argument was that the conditions in Mr Rainsford's case were no more than inherent in the relevant services and that the condition must be over and above the service: see Waters [1991] HCA 49 ; 173 CLR 349. In my view the question whether Mr Rainsford was required to comply with a requirement or condition can be disposed of without answering these submissions of the respondents. All that needs to be done is to correctly identify the service and the requirement and to apply these to Mr Rainsford's case. Once this is done, it is apparent that for neither claim can Mr Rainsford demonstrate that he was required to comply with a requirement or condition.


case_text: The accommodation of prisoners in cells within the prison system is similarly an inherent part of incarceration. Prisoners must be housed somewhere within the prison system and that this is so demonstrates that for a prisoner to have a cell is not a helpful or beneficial activity so far as the prisoner is concerned. In so far as there is choice in the allocation of prison cells, it is a purely administrative and prison management matter. It does not, of itself, provide prisoners with a benefit. Rather, it is better described as being "part and parcel of the exercise of a statutory duty and cannot be described as the provision of a service or services", to adopt the words of Underwood J in Secretary of the Department of Justice and Industrial Relations v Anti-Discrimination Commissioner (2003) 11 Tas R 324 at 341.


case_text: In the case of the transport claim, I accept that Mr Rainsford experienced some pain and suffering as a result of being transported in the manner in which he was. There is however, another problem with his claim on this point. It is that he was able to comply with the condition that was imposed. Mr Rainsford attempts to get around this problem by saying that the requirement was that he be transported without access to conditions that would protect his back from injury. In support of this negative formulation of the condition, he relies on the recent Full Court decision in Hurst v Queensland [2006] FCAFC 100 ; (2006) 151 FCR 562. In that case, the appellant was a deaf child who was denied access to an Auslan teacher or interpreter. The trial judge found that because the child could cope in a regular classroom without Auslan assistance, she could comply with the condition that she "accept an education and receive instruction in English without the assistance of an Auslan teacher or an Auslan interpreter": Hurst v Education Queensland [2005] FCA 405 at [85] . The Full Court found that the trial judge erred in his construction of s 6(c) of the DDA. Ryan, Finn and Weinberg JJ said at 151 FCR at [134]: "His Honour's own findings ought to have led him to conclude that [the appellant] was relevantly 'not able to comply' with the requirement or condition that she be taught in English, without the assistance of Auslan. In our view, it is sufficient to satisfy that component of s 6(c) that a disabled person will suffer serious disadvantage in complying with a requirement or condition of the relevant kind, irrespective of whether that person can 'cope' with the requirement or condition. A disabled person's inability to achieve his or her full potential, in educational terms, can amount to serious disadvantage. In [the appellant's] case, the evidence established that it had done so." The evidence referred to in this passage included that without Auslan in the classroom the appellant "would cope, but not reach her full educational potential": Hurst 151 FCR at [44] and [108] [113]. 101 The Full Court made it plain (at Hurst 151 FCR at [132]) that the outcome depended on the highly specific facts of the case. There was almost no discussion of whether a claimant who suffers something less than 'serious disadvantage' in complying with a condition would satisfy s 6(c) of the DDA. There is, however, one obiter paragraph that is fatal to Mr Rainsford's claim. After discussing the first instance decision of Madgwick J in Clarke v Catholic Education Office (2003) 202 ALR 340, in which his Honour had found in favour of another deaf child who would have faced 'serious' or 'substantial' disadvantage by not being educated with Auslan, the Full Court said at Hurst 151 FCR at [120]: "there appears to be no real difference between his Honour's [ie Madgwick J's] use of the term 'substantial disadvantage' in relation to the comparable base group, and his use of the term 'serious disadvantages' in relation to the issue of ability to comply. On the other hand, neither formulation accords with [the submission of counsel for the intervener, the Human Rights and Equal Opportunity Commission,] that 'non-trivial disadvantage' is all that s 6(c) contemplates. That submission goes too far, and cannot be accepted." Later on, their Honours note that they do not do deal with the 'various construction arguments' put by counsel for HREOC: Hurst 151 FCR at [135]. There was no evidence before me as to what those arguments were.


case_text: In the case of the transport claim, I accept that Mr Rainsford experienced some pain and suffering as a result of being transported in the manner in which he was. There is however, another problem with his claim on this point. It is that he was able to comply with the condition that was imposed. Mr Rainsford attempts to get around this problem by saying that the requirement was that he be transported without access to conditions that would protect his back from injury. In support of this negative formulation of the condition, he relies on the recent Full Court decision in Hurst v Queensland [2006] FCAFC 100 ; (2006) 151 FCR 562. In that case, the appellant was a deaf child who was denied access to an Auslan teacher or interpreter. The trial judge found that because the child could cope in a regular classroom without Auslan assistance, she could comply with the condition that she "accept an education and receive instruction in English without the assistance of an Auslan teacher or an Auslan interpreter": Hurst v Education Queensland [2005] FCA 405 at [85] . The Full Court found that the trial judge erred in his construction of s 6(c) of the DDA. Ryan, Finn and Weinberg JJ said at 151 FCR at [134]: "His Honour's own findings ought to have led him to conclude that [the appellant] was relevantly 'not able to comply' with the requirement or condition that she be taught in English, without the assistance of Auslan. In our view, it is sufficient to satisfy that component of s 6(c) that a disabled person will suffer serious disadvantage in complying with a requirement or condition of the relevant kind, irrespective of whether that person can 'cope' with the requirement or condition. A disabled person's inability to achieve his or her full potential, in educational terms, can amount to serious disadvantage. In [the appellant's] case, the evidence established that it had done so." The evidence referred to in this passage included that without Auslan in the classroom the appellant "would cope, but not reach her full educational potential": Hurst 151 FCR at [44] and [108] [113].


case_text: The Full Court made it plain (at Hurst 151 FCR at [132]) that the outcome depended on the highly specific facts of the case. There was almost no discussion of whether a claimant who suffers something less than 'serious disadvantage' in complying with a condition would satisfy s 6(c) of the DDA. There is, however, one obiter paragraph that is fatal to Mr Rainsford's claim. After discussing the first instance decision of Madgwick J in Clarke v Catholic Education Office (2003) 202 ALR 340, in which his Honour had found in favour of another deaf child who would have faced 'serious' or 'substantial' disadvantage by not being educated with Auslan, the Full Court said at Hurst 151 FCR at [120]: "there appears to be no real difference between his Honour's [ie Madgwick J's] use of the term 'substantial disadvantage' in relation to the comparable base group, and his use of the term 'serious disadvantages' in relation to the issue of ability to comply. On the other hand, neither formulation accords with [the submission of counsel for the intervener, the Human Rights and Equal Opportunity Commission,] that 'non-trivial disadvantage' is all that s 6(c) contemplates. That submission goes too far, and cannot be accepted." Later on, their Honours note that they do not do deal with the 'various construction arguments' put by counsel for HREOC: Hurst 151 FCR at [135]. There was no evidence before me as to what those arguments were.


case_text: The application to strike out the defence was brought on the basis that it was an abuse of the process of the Court under O 11 r 16. The onus is on the party bringing the application to satisfy the court that there is an abuse of process: KC Park Safe (SA) Pty Ltd v Adelaide Terrace Investments Pty Ltd (unreported, Mansfield J, 17 September 1998). There is no exhaustive list of what would constitute an abuse of process: Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275, at 279.


case_text: The application to strike out the defence was brought on the basis that it was an abuse of the process of the Court under O 11 r 16. The onus is on the party bringing the application to satisfy the court that there is an abuse of process: KC Park Safe (SA) Pty Ltd v Adelaide Terrace Investments Pty Ltd (unreported, Mansfield J, 17 September 1998). There is no exhaustive list of what would constitute an abuse of process: Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275, at 279. 17 While it is permissible for evidence to be adduced in proceedings such as these (see Re Elders Australia Ltd; Super John Pty Ltd v Futuris Rural Pty Ltd (No 2) (unreported, Foster J, 24 December 1997); Munnings v Australian Government Solicitor [1993] HCA 66 ; (1994) 118 ALR 385, at 389; Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 109), the Court should be cautious not to preclude a party from relying on a defence that might be proved at trial merely because evidence exists which brings it into doubt: National Mutual Holdings v The Sentry Corporation (unreported, 27 September 1989); Sea Culture International v Scoles (1991) 32 FCR 275.


case_title: Remington v Scoles [1897] 2 Ch D 1

case_text: The plaintiff argued that the defence was an abuse of process because the substantive defence was a sham. I accept that a sham defence may amount to an abuse of process and may be struck out: see Remington v Scoles [1897] 2 Ch D 1.


case_outcome: discussed

case_text: The plaintiff sought to adduce evidence to show that the claim that the signatory to the agreement and to the mortgage on behalf of the owner did not have the requisite authority could not genuinely be raised. Obviously, the Court should be slow to be persuaded that a pleaded defence based on a matter of fact is not genuinely raised. However, if the Court is satisfied that a defendant has pleaded a fact which it does not genuinely maintain, the inference must follow that it has some extraneous reason for asserting that fact. It may be as simple as an attempt to delay the inevitable. There may be other reasons. If the fact is pleaded for an extraneous purpose, then it may amount to an abuse of process: see e.g. Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509. Care must be taken, as Mason CJ, Dawson, Toohey and McHugh JJ pointed out at 526-527, to ensure that the relevant or immediate purpose is not misunderstood.


case_text: While it is permissible for evidence to be adduced in proceedings such as these (see Re Elders Australia Ltd; Super John Pty Ltd v Futuris Rural Pty Ltd (No 2) (unreported, Foster J, 24 December 1997); Munnings v Australian Government Solicitor [1993] HCA 66 ; (1994) 118 ALR 385, at 389; Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 109), the Court should be cautious not to preclude a party from relying on a defence that might be proved at trial merely because evidence exists which brings it into doubt: National Mutual Holdings v The Sentry Corporation (unreported, 27 September 1989); Sea Culture International v Scoles (1991) 32 FCR 275.


case_title: Munnings v Australian Government Solicitor [1993] HCA 66 ; (1994) 118 ALR 385


case_title: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62


case_title: National Mutual Holdings v The Sentry Corporation (unreported, 27 September 1989)


case_text: In Australian law, even if the defence of the lack of authority of Al-Enazy to have signed the documents on behalf of the owner were established, it is likely on the presently available material that (a) the owner would be required to repay the monies advanced in any event: Bank of South Australia v Ferguson [1998] HCA 12 ; (1998) 192 CLR 248; and (b) the owner would be estopped by its conduct from saying that the two documents were not validly executed, provided that the plaintiff showed that it had acted on the representations as to the existence of the agreement and of the agreement/mortgage. 29 No evidence exists as to whether Kuwaiti law would have the same consequences, and of course the matter in (a) would only result in the existence of an unsecured indebtedness to the plaintiff. 30 The second category of evidence takes the matter further.


case_text: The defendant and the owner should pay the costs of the notice of motion to date to the plaintiff in any event. I accept the contention of counsel for the plaintiff that those costs should be payable on an indemnity basis, given my reason for striking out the defence: see Colgate-Palmolive Co v Cussons Pty ltd (1993) 46 FCR 225 per Sheppard J at 232-234. 43 I direct that the time from which any application for leave to appeal from this decision should run from the date of publication of these reasons for decision. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 17 April 2007 Counsel for the Applicant: Mr HNG Austin Solicitor for the Applicant: Minter Ellison Counsel for the Respondent: Mr I Maitland Solicitor for the Respondent: Wallmans Lawyers Date of Hearing: 9 February 2007 Date of Close of Submissions: 28 February 2007 Date of Judgment: 11 April 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/550.html


case_text: Telstra submitted that the detriment asserted by MWO cannot amount to "damage" sufficient to found a cause of action pursuant to ss 82 or 87 of the TPA. That is, according to Telstra, the pleading failed to establish a causal connection between the alleged damage and the conduct of Telstra alleged in paragraph 20 of the statement of claim. In support of this submission, Telstra referred to numerous authorities, including Marks v GIO Australia Holdings Ltd [1998] HCA 69 ; (1998) 196 CLR 494 (" Marks ") at 503-4, Wardley Australia Ltd v Western Australia (1992) 175 CR 514 (" Wardley ") at 525, Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3 ; (1986) 160 CLR 1 at 14; HTW Valuers (Central Queensland) Pty Ltd v Astonland Pty Ltd [2004] HCA 54 ; (2004) 217 CLR 640; Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459 at 501 [130] , and I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 ; (2002) 210 CLR 109 at 121 [31] . Telstra submitted that MWO failed to allege the "better" position that it would have been in "but for" its reliance on the representation, or otherwise to seek to connect the damage alleged in paragraph 29 of its statement of claim to any such "better" position. Telstra submitted that the authorities establish that MWO had thus failed to meet a fundamental pleading requirement if it is to make out its cause of action under ss 52 and 82 or 87 of the TPA in respect of the no cap representation. 19 The authorities establish that the relief that ss 82 or 87 of the TPA may afford is not confined to the remedies in tort, contract or equity: see, eg, Marks at 503-4. Further, the causative element in a cause of action under ss 52 and 82 (or 87) of the TPA is to be "understood as taking up the common law practical or common-sense concept of causation": Wardley at 525. Causation is a question of fact. As the Court said in Murphy , at 403, the difference between price and value is not the only kind of damage for which compensation can be given in such an action as this. It is necessary to identify the detriment which is said to be the loss or damage which has occurred or, when considering the application of s 87, has occurred or is likely to occur: see Murphy at 408. In Wardley , as the Murphy Court noted, "the mere entry into obligations which might, but need not, have had detrimental consequences in the future was held not to have occasioned loss or damage to the party making the contract": see Murphy at 408. The Court went on to hold, at 409-10, that in the Murphys' case: " [T] he finding that [they] had been induced to enter the lease by a statement of estimated outgoings that was misleading, because it did not take account of all amounts that could properly be charged as outgoings, meant that [they] undertook an obligation which may, but need not, have proved to be larger or more costly than they had been led to believe. There may be cases in which a person misled in this way suffers loss upon entering the agreement. ...But that was not this case. ... What [they] did not know was that the estimate of outgoings they were given did not provide for all the outgoings that were then being incurred. Here, therefore, [they] suffered no loss as a result of undertaking the obligations they did unless and until the contingency which the misrepresentation hid ... was first realised. ... It was only from the time when it in fact decided to depart from the 1992 position and charge for the wider categories that the adverse risk eventuated. When it did, but only then, [the Murphys] suffered loss and damage."


case_title: Wardley Australia Ltd v Western Australia (1992) 175 CR 514


case_text: Telstra submitted that the detriment asserted by MWO cannot amount to "damage" sufficient to found a cause of action pursuant to ss 82 or 87 of the TPA. That is, according to Telstra, the pleading failed to establish a causal connection between the alleged damage and the conduct of Telstra alleged in paragraph 20 of the statement of claim. In support of this submission, Telstra referred to numerous authorities, including Marks v GIO Australia Holdings Ltd [1998] HCA 69 ; (1998) 196 CLR 494 (" Marks ") at 503-4, Wardley Australia Ltd v Western Australia (1992) 175 CR 514 (" Wardley ") at 525, Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3 ; (1986) 160 CLR 1 at 14; HTW Valuers (Central Queensland) Pty Ltd v Astonland Pty Ltd [2004] HCA 54 ; (2004) 217 CLR 640; Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459 at 501 [130] , and I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 ; (2002) 210 CLR 109 at 121 [31] . Telstra submitted that MWO failed to allege the "better" position that it would have been in "but for" its reliance on the representation, or otherwise to seek to connect the damage alleged in paragraph 29 of its statement of claim to any such "better" position. Telstra submitted that the authorities establish that MWO had thus failed to meet a fundamental pleading requirement if it is to make out its cause of action under ss 52 and 82 or 87 of the TPA in respect of the no cap representation.


case_title: HTW Valuers (Central Queensland) Pty Ltd v Astonland Pty Ltd [2004] HCA 54 ; (2004) 217 CLR 640


case_title: I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 ; (2002) 210 CLR 109


case_text: In response to Telstra's strike out application, MWO relied chiefly on the High Court's decision in Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388 (" Murphy "). 10 In Murphy , the Court determined what, if any, relief under Pt VI of the TPA the appellants should have for a contravention of Pt V. They had been induced to enter into a lease of a unit in a retirement village. The lease provided that they should pay certain outgoings. The trial judge found that, in entering into the lease, they had relied on a misrepresentation that the figure for likely outgoings had been calculated taking into account all relevant costs. The figure had not been so calculated and turned out to be much higher than that nominated when the lessors entered the lease. The trial judge found that, had the lessors known the true position, they would not have entered into the lease. The High Court held that the appellants' undertaking of the obligation to pay the increased outgoings figure gave rise to the possibility that they could demonstrate that they had suffered loss and damage: Murphy at 415-6 [74]. 11 MWO submitted that, in Murphy , the High Court did not require the appellants to establish what agreement they would have entered into had the misrepresentation not been made. MWO noted that the Court found that the Full Federal Court had erred in applying the "but for" test for which Telstra contended. In written and oral submissions, MWO put their response to Telstra in this way: "Thus in Murphy : (a) Overton represented that the outgoings would be calculated on a certain basis; (b) The Murphys' relied upon it and were induced to enter into the lease; (c) No loss was suffered at the time of entering into the lease; (d) The loss arose when Overton charged outgoings on a higher basis than that represented; (e) The Murphys were entitled to recover the difference between the outgoings as represented and those charged. By analogy here: (a) Telstra represented that if [MWO] entered into the 2003 Agreement, it would not enforce the cap ...; (b) Telstra's representation was relied upon by [MWO] and induced [MWO] to do the things alleged in sub paragraphs 24(a) to 24(e); (c) Telstra's representation did not result in any loss to [MWO] at the time of entering into the 2003 Agreement; (d) the loss to [MWO] arose when Telstra ... sought, contrary to the Representation, to enforce the cap; (e) once Telstra sought to enforce the cap, [MWO] suffered damage, namely the difference between the remuneration capped and uncapped. (f) Accordingly, [MWO is] entitled to recover this difference as pleaded."


case_text: MWO contended that the causal connection between the no cap representation and warranty and the detriment was constituted by its entry into the 2003 agreement and doing the other acts as alleged in reliance on the representation and warranty. The detriment was the non-fulfilment of the no cap representation and warranty. MWO relied on Walton Stores (Interstate) Limited v Maher [1988] HCA 7 ; (1988) 164 CLR 387 at 428-9, Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394 at 442-6 and Giumelli v Giumelli [1999] HCA 10 ; (1998) 196 CLR 101 at 112-4, as well as the reasons for judgment of Gyles J in the Full Court of this Court in Murphy (which MWO said met with the High Court's approval) in support of the proposition that there was no deficiency in its pleading to support its estoppel claim. MWO also referred to its proposed amendment to paragraph 34D, which, so it said, "makes plain that [it] relies upon the particulars subjoined to paragraph 24 as to the acts which it did to its detriment and relies upon the particulars subjoined to paragraph 29 as to the loss and damage occasioned by Telstra's failure to fulfil the assumption or expectation induced in [it] by making the [no cap representation] and Warranty". MWO submitted that this claim was plainly arguable.


case_title: Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394


case_title: Giumelli v Giumelli [1999] HCA 10 ; (1998) 196 CLR 101


case_outcome: applied

case_text: Prior to the enactment of s 31A of the Federal Court of Australia Act 1976 (Cth), which came into force on 1 December 2005, the standard to be satisfied before any order would be made under this provision was settled law. The Court would exercise its powers under this rule with great care and only make an order against an applicant in a very clear case that disclosed no tenable claim: see, e.g., Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129-130; Fancourt v Mercantile Credits Ltd [1983] HCA 25 ; (1983) 154 CLR 87 (" Fancourt ") at 99; and Webster v Lampard [1993] HCA 57 ; (1993) 177 CLR 598. Whether or not the Court is satisfied that that there is no real question to be tried (see Fancourt at 99) will depend entirely on the circumstances of the case.


case_title: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125


case_title: Fancourt v Mercantile Credits Ltd [1983] HCA 25 ; (1983) 154 CLR 87


case_title: Webster v Lampard [1993] HCA 57 ; (1993) 177 CLR 598


case_text: Although the pleadings have been amended from time to time, the nature of the claims made are, for present purposes, sufficiently described in the reasons for judgment of Crennan J in Mobileworld Operating Pty Ltd v Telstra Corporation Ltd [2005] FCA 292 (" Mobileworld (1) ") at [3] to [4]. Further, as reference to her Honour's decision shows, this is not the first time that this aspect of MWO's pleading has been challenged: see Mobileworld (1) at [25]-[30].


case_text: For similar reasons, I would not strike out the pleadings in so far as they raise a claim of estoppel against Telstra. Examination of the statement of claim shows that it sufficiently pleads the requisite elements of an estoppel as disclosed in the authorities mentioned in [14] above. These authorities establish that a pre-contractual representation can form the basis for an estoppel. In the case as pleaded, the unconscionability, if any, is said to lie in the fact that Telstra unilaterally departed from the assumption it had created by the no cap representation after the 2003 agreement was made. Having regard to the reasons for judgment of Gyles J in Murphy v Overton Investments Pty Ltd (2001) 112 FCR 183 at 225-228, it would not be a proper exercise of discretion to strike out this part of the pleading as clearly untenable. Further, the decision of the High Court in Murphy does not support such a course. 24 For the reasons stated, I would dismiss Telstra's motion, notice of which was given on 5 June 2006. No party suggested that there should be any departure from the ordinary provision as to the costs of an unsuccessful motion. 25 MWO applied to have the quantification of any loss or damage suffered by MWO as alleged under paragraph 41 of the Second Further Amended Statement of Claim ("SFASC") determined subsequently and separately to all other matters in the proceeding. MWO also sought to be relieved of the obligation to file, prior to trial, evidence going to the quantification of this loss.


case_text: Order 29 rule 2 of the Rules confers power on the Court to make orders for "... the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceeding". The principles that govern the circumstances in which an order of the kind presently sought may be made were set out in Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 (" Reading" ) at [7] and [8] per Branson J. French J reiterated these principles in Olbers Co Ltd v Commonwealth (No 3) [2003] FCA 651 (" Olbers" ) at [7]. In Reading at [8], Branson J summarised the relevant principles as follows: "The principles that govern the circumstances in which an order will be made under O 29 r 2 are relatively well established. They may be summarised as follows: (a) the term "question" in O 29 r 1 includes any question or issue of fact or law in a proceeding. ... ; (b) a question can be the subject of an order for a separate decision under O 29 r 2 even though a decision on such a question will not determine any of the parties' rights ...; (c) however, the judicial determination of a question under O 29 r 2 must involve a conclusive or final decision based on concrete and established or agreed facts for the purpose of quelling a controversy between the parties ...; (d) where the preliminary question is one of mixed fact and law, it is necessary that the question can be precisely formulated and that all of the facts that are on any fairly arguable view relevant to the determination of the question are ascertainable either as facts assumed to be correct for the purposes of the preliminary determination, or as agreed facts or as facts to be judicially determined ...; (e) care must be taken in utilising the procedure provided for in O 29 r 1 to avoid the determination of issues not "ripe" for separate and preliminary determination. ...; (f) factors which tend to support the making of an order under O 29 r 2 include that the separate determination of the question may - (i) contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the action; or (ii) contribute to the settlement of the litigation ... . (g) factors which tell against the making of an order under O 29 r 2 include that the separate determination of the question may (i) give rise to significant contested factual issues both at the time of the hearing of the preliminary question and at the time of trial ...; (ii) result in significant overlap between the evidence adduced on the hearing of the separate question and at trial - possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding ... . This factor will be of particular significance if the Court may be required to form a view as to the credibility of witnesses who may give evidence at both stages of the hearing of the proceeding; or (iii) prolong rather than shorten the litigation ...." (Citations omitted)


case_text: Order 29 rule 2 of the Rules confers power on the Court to make orders for "... the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceeding". The principles that govern the circumstances in which an order of the kind presently sought may be made were set out in Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 (" Reading" ) at [7] and [8] per Branson J. French J reiterated these principles in Olbers Co Ltd v Commonwealth (No 3) [2003] FCA 651 (" Olbers" ) at [7]. In Reading at [8], Branson J summarised the relevant principles as follows: "The principles that govern the circumstances in which an order will be made under O 29 r 2 are relatively well established. They may be summarised as follows: (a) the term "question" in O 29 r 1 includes any question or issue of fact or law in a proceeding. ... ; (b) a question can be the subject of an order for a separate decision under O 29 r 2 even though a decision on such a question will not determine any of the parties' rights ...; (c) however, the judicial determination of a question under O 29 r 2 must involve a conclusive or final decision based on concrete and established or agreed facts for the purpose of quelling a controversy between the parties ...; (d) where the preliminary question is one of mixed fact and law, it is necessary that the question can be precisely formulated and that all of the facts that are on any fairly arguable view relevant to the determination of the question are ascertainable either as facts assumed to be correct for the purposes of the preliminary determination, or as agreed facts or as facts to be judicially determined ...; (e) care must be taken in utilising the procedure provided for in O 29 r 1 to avoid the determination of issues not "ripe" for separate and preliminary determination. ...; (f) factors which tend to support the making of an order under O 29 r 2 include that the separate determination of the question may - (i) contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the action; or (ii) contribute to the settlement of the litigation ... . (g) factors which tell against the making of an order under O 29 r 2 include that the separate determination of the question may (i) give rise to significant contested factual issues both at the time of the hearing of the preliminary question and at the time of trial ...; (ii) result in significant overlap between the evidence adduced on the hearing of the separate question and at trial - possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding ... . This factor will be of particular significance if the Court may be required to form a view as to the credibility of witnesses who may give evidence at both stages of the hearing of the proceeding; or (iii) prolong rather than shorten the litigation ...." (Citations omitted) 43 As French observed in Olbers at [8]: "The overarching consideration informing the discretion to make an order under O 29 r 2 is efficient case management. It is subject to the limitation that the Court cannot give an advisory opinion on theoretical or hypothetical facts even if such an opinion were likely to lead to a settlement or resolution of the proceedings."


case_text: It is almost goes without saying that care is needed in determining whether the separate question procedure ought be used: compare Tepko Pty Ltd v Water Board [2001] HCA 19 ; (2001) 206 CLR 1 at 55 per Kirby and Callinan JJ. It is common enough to find that the separate determination of questions in a proceeding does not result in the expeditious resolution of the proceeding, although all parties thought it would at the time the separate determination was ordered. Indeed, such orders can have the opposite effect and the resulting fragmentation can add to the expense and time involved in the proceeding. As Kirby and Heydon JJ noted in Waterways Authority v Fitzgibbon [2005] HCA 57 ; (2005) 79 ALJR 1816 at [37] : "It is notorious that the course of ordering that a preliminary separate question be tried, and deciding the case on that question, rather than deciding the case on all issues, is a course which can create graver difficulties than those which it is intended to solve."


case_title: Waterways Authority v Fitzgibbon [2005] HCA 57 ; (2005) 79 ALJR 1816


case_text: An application to amend a pleading should be permitted where the justice of the case so demands: see Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 at 155 per Dawson, Gaudron and McHugh JJ and 167-172 per Kirby J. In the circumstances of this case, save for the matters raised by Telstra, I would have little hesitation in permitting MWO to abandon claims that it no longer wishes to pursue, whether out of a spirit of cooperation or for purely forensic reasons.