case_title: O'Rourke and Comcare [1997] AATA 304

case_text: Mr Bryant has now appealed to this Court from the Tribunal's decision. Such an appeal lies only on a question of law: s 44 Administrative Appeals Tribunal Act 1975 (AAT Act). A number of what are said to be questions of law are specified in the notice of appeal, as follows: THE QUESTIONS OF LAW raised on appeal are: (a) Whether, in view of the finding that the accepted injury of muscle tension headaches was permanent, it was for the Applicant to call evidence to satisfy the Tribunal as to the level of impairment that there were not other causes that might influence the severity, frequency and/or level of impairment of the headaches? (b) Whether the decision of the Tribunal in finding that sleep apnoea and/or psychological factors could equally account for his headache symptoms was so manifestly unreasonable as to amount to an error of law? (c) Whether the Tribunal in taking account of psychological factors failed to consider that such factors were a sequelae of headaches and therefore compensable under Section 24 in light of the admissions and findings that had already made? (d) Whether in reviewing the determination under Section 24 and 27 the Tribunal should have considered psychological factors or sleep apnoea as causes of the Applicant's headaches in the absence of any expert to that effect? (e) Whether the Tribunal applied Table 13.1 correctly when considering what constituted minor interference with activities of daily living? (f) Whether the manner of assessment of headaches under Table 13.1 in O'Rourke v Comcare (1997) AATA 11720 was the correct test to be applied? (g) Whether, in assessing the level of impairment under Table 13.1, the Tribunal must be satisfied on medical evidence of the criteria in the Table or whether the Applicant's evidence alone, if accepted, would be sufficient? 6 Section 24 of the SRC Act makes provision for the payment of permanent impairment compensation. It provides: 24 Compensation for injuries resulting in permanent impairment (1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury. (2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to: (a) the duration of the impairment; (b) the likelihood of improvement in the employee's condition; (c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and (d) any other relevant matters. (3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment. (4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5). (5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide. (6) The degree of permanent impairment shall be expressed as a percentage. (7) Subject to section 25 , if: (a) the employee has a permanent impairment other than a hearing loss; and (b) Comcare determines that the degree of permanent impairment is less than 10%; an amount of compensation is not payable to the employee under this section. 7 The reference in s 24 to the "approved Guide" is a reference to the "Guide to the Assessment of the Degree of Permanent Impairment" approved pursuant to s 28 of the SRC Act . So far as material, that section provides: 28 Approved Guide (1) Comcare may, from time to time, prepare a written document, to be called the "Guide to the Assessment of the Degree of Permanent Impairment", setting out: (a) criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined; (b) criteria by reference to which the degree of non-economic loss suffered by an employee as a result of an injury or impairment shall be determined; and (c) methods by which the degree of permanent impairment and the degree of non-economic loss, as determined under those criteria, shall be expressed as a percentage. (2) Comcare may, from time to time, by instrument in writing, vary or revoke the approved Guide. (3) A Guide prepared under subsection (1), and a variation or revocation under subsection (2) of such a Guide, must be approved by the Minister. (3A) ... (4) Where Comcare, a licensee or the Administrative Appeals Tribunal is required to assess or re-assess, or review the assessment or re-assessment of, the degree of permanent impairment of an employee resulting from an injury, or the degree of non-economic loss suffered by an employee, the provisions of the approved Guide are binding on Comcare, the licensee or the Administrative Appeals Tribunal, as the case may be, in the carrying out of that assessment, re-assessment or review, and the assessment, re-assessment or review shall be made under the relevant provisions of the approved Guide. (5) The percentage of permanent impairment or non-economic loss suffered by an employee as a result of an injury ascertained under the methods referred to in paragraph (1)(c) may be 0%. (6) In preparing criteria for the purposes of paragraphs (1)(a) and (b), or in varying those criteria, Comcare shall have regard to medical opinion concerning the nature and effect (including possible effect) of the injury and the extent (if any) to which impairment resulting from the injury, or non-economic loss resulting from the injury or impairment, may reasonably be capable of being reduced or removed. (7) ... (8) ... 15 For like reasons, albeit at the cost of an elongation of these reasons, it is necessary to set out certain passages from the Tribunal's reasons under each of these headings: "1. The cause and relationship to service of the applicant's headaches 37. There are conflicting medical opinions on the cause of the applicant's headaches, either that they are derived from his service related rugby neck injury, or that they are due to tension headaches. ... 39. Neurologists Dr Beran (Exhibit 3 folio 157) and Dr Lethlean (Exhibit 1 folio 70) both diagnosed tension headaches. 40. The Tribunal finds that the evidence for a cervical spinal cause for the applicant's headaches is inconclusive. On balance it favours the diagnosis of tension headaches made by both Neurologists. 41. However, further to this, the Tribunal finds that the diagnosis of the nature of the headache is incidental. Both Dr Rowe (Exhibit 1 folio 42) and Dr Lethlean ( ibid folio 71), the only doctors asked if the applicant's headaches are due to his Navy service, have determined that they are. 2. Whether the applicant's headache condition is permanent 42. Both Dr Rowe (Exhibit 1 folio 42) and Dr Lethlean ( ibid folio 83) have concluded that the applicant's headache condition is permanent. The other medical witnesses have provided no opinion. 3. The applicant's whole person impairment from his headache condition 43. Again there is conflicting medical opinion on this. Dr Rowe has assessed that the applicant suffers 10% whole person impairment from his headache condition, whereas Dr Lethlean assessed this at 0%. 44. Based on the reports by the various medical specialists together with the oral evidence provided, results in our placing greater weight on the evidence of Dr Lethlean in preference to the evidence of Dr Rowe. While both these specialists have provided more recent reports, Dr Rowe conceded that his opinion is based essentially on the applicant's statements. However, of greater importance and weight was the fact that Dr Lethlean, while agreeing with Mr King-Scott (Counsel for the applicant) that it is possible to regard the factual evidence as affecting the activities of daily living of the applicant, he did not resile from his opinion that the applicant has a 0% whole person impairment and did so on the basis of the principle that such an assessment should only be altered following a re-assessment. A re-assessment had not occurred between the date of his latest report on 3 November 2006 where he observed some significant differences in the symptoms described by the applicant in his statement of 14 June 2006, in comparison to his examination of the applicant some 8 months earlier on 31 October 2005. o In addition, his reasoning was quite analytical. He emphasised if a clinical re-assessment was to occur, that a psychiatric assessment should also be included, as he formed the view that Mr Bryant's symptoms were multi-factorial. He further stated that sleep apnoea could also account for the present level of impairment and if that was found to be so, then it would not be compensable under Table 13.1. If sleep apnoea was a major cause of the applicant's headaches, then, not only would it be non-compensable under Table 13.1, but it would explain the condition as being not stabilised and that there may be potential for a reduction in the level of headaches by further medical treatment. We therefore regarded Dr Lethlean's report as providing greater cogency or weight of evidence. ... 47. In relation to the above conditions, it is essentially a contest as to whether or not the applicant satisfies the 10% whole person impairment criteria. If he does not, then the 0% whole person impairment criteria is more appropriate. In relation to the 10% criteria, the applicant has described to Dr Rowe and in his other evidence, that he has attacks which occur 12 times or more per year. Of importance is whether they cause "minor interference with activities of daily living" or are readily reversed by medication. In relation to the evidence provided to Dr Lethlean, the frequency of headaches seems to have reduced from 1994 to October 2005 when the applicant was examined by Dr Lethlean. But the activities described do not require any particular functions of daily living to be satisfied although "due weight must be given to the psychosocial aspect of the function i.e. the ability to stand may be impaired because one cannot stand straight, or stand still or stand around or even stand by without some supervision or direction": Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Emery [1993] FCA 601 ; (1993) 32 ALD 147 at 151). 48. That principle must be read in the context that all the attacks must be considered in making the assessment of frequency, not merely those of relevant severity ( McKenna v Repatriation Commission (1995) 39 ALD 254). Of direct relevance is the case of Re O'Rourke and Comcare (AAT 12152, 26 August 1997) which was a case involving an assessment of severe headaches on the activities of daily living as required by Table 13.1. The decision in that case noted that the 10% level of impairment requires "minor interferences with activities of daily living". Activities of daily living refers to primary biological and psychosocial functions. "Minor interference" it was said must be greater than "no" interference but less than "most" interference. The Tribunal there held that a global view or assessment is more appropriate; that on some occasions, one activity of daily living may be so affected in both biological and psychosocial terms as to constitute a minor interference with activities of daily living, whereas in another case there could be multiple activities of daily living which are affected at such a low level but which could still be described as constituting a "minor interference" with activities of daily living. It was said however, '[i]t is highly unlikely, when taking a global approach to this assessment, that a small infraction of one [activity of daily living] could properly be described as "minor interference with activities of daily living'. 49. In assessing the evidence presented against these criteria and their interpretations as outlined above, we have also kept in mind the underlying principles which inform Table 13.1. In O'Rourke's case it was found that the frequency of headaches suffered by the applicant there was approximately 25 per year (greater than the standard in the criteria of 12 or more) and that the duration of the headaches involved several hours and the severity at the upper level. However, the Tribunal there found that the level of impairment under Table 13.1 was 0% as the attacks did not interfere with activities of daily living as defined in the glossary of the Guide. In the present case, the applicant has to rest or stretch and sometimes even double checks his work. These responses to stimuli could be regarded as being on the one hand, part of the ordinary incidence of life which results from tiredness, stress in the workplace or other influencing factors. There is the possibility however, that those activities of daily living may be experiencing a "minor interference" as defined. However, we have concluded on the balance of probabilities that the likelihood of the latter conclusion is far outweighed by the factors raised by Dr Lethlean that sleep apnoea, for example, could equally account for the symptoms described. On that basis, the headaches reported could not then be attributable to service life and therefore be compensable under Table 13.1. That is not to detract from the acceptance of liability for the original injury or even that headaches may be related to the original injury. However, the doubt raised by Dr Lethlean that some psychological factors may be involved lends credence to the requirement for clinical re-assessment including psychiatric assessment. The time lapse between Dr Lethlean's original and more recent reports, his observation of apparent inconsistencies as specified in his latest report should not be viewed lightly and his suggestion of a clinical re-assessment would accord with the best evidence rule in order to make the correct or preferable decision. 50. Having considered all of the evidence, we are satisfied that the applicant does not suffer a 10% whole person impairment which can be attributable to service life , in terms of s 24 of the Act. An amount of compensation is therefore not payable under that provision. (Emphasis added) 27 In regard to the construction and application of Table 13.1 in the Approved Guide, Mr Bryant's submission was that the Tribunal's reliance on an earlier Tribunal decision, O'Rourke v Comcare [1997] AATA 304 , led it to apply an incorrect construction of the term "minor interference". Mr Byrant's submissions proceeded as follows. The global approach to "minor interference" in O'Rourke v Comcare , is contrary to the approach the Court has taken to interpreting the Guide in Whittaker v Comcare [1998] FCA 1099 ; (1998) 86 FCR 532 and Comcare v Fiedler [2001] FCA 1810 ; (2001) 115 FCR 328. These cases are, it was submitted, supportive of the proposition that, where there is ambiguity in a phrase, as there is with "minor interference", then the Tribunal should take the approach most favourable to the employee. If the global approach in O'Rourke v Comcare has the effect of limiting or reading down the meaning of "minor interference" then it ought not be followed. If an "activity of daily living" (ADL) is interrupted, temporarily suspended or ceased altogether because of a headache that amounted, it was submitted, to an interference and whether it is minor or significant depended on the frequency, duration and severity of attacks. Where headaches amount to more than a de minimus interference with ADL, it was submitted that this would then constitute a "minor interference". It was submitted that Mr Bryant's medical history, as provided to Dr Lethlean, which history was assumed to be uncontroversial, would fall within the meaning of "minor interference" so construed and hence amounted to a 10% impairment under Table 13.1 of the Approved Guide. 30 The Commission further submitted that, even if O'Rourke v Comcare were the source of an incorrect test to apply to the term "minor interference", the Tribunal's reasons do not disclose that it applied such a narrow conception. In support of this, the Commission pointed to the Tribunal's reasons at [49] as showing that the Tribunal did consider whether there was a de minumus interference. The Commission submitted that, whilst the Tribunal was not satisfied on the evidence that the 10% impairment was met, this was not because the interference was considered too minor. The Commission finally submitted, in regard to the acceptance of Dr Lethlean's opinion over that of Dr Rowe, that this was a matter of the weight afforded to evidence and did not give rise to any errors of law. 56 In assessing what constituted a "minor interference" with the "activities of daily living" the Tribunal sought to follow an approach adopted in an earlier tribunal case, O'Rourke and Comcare [1997 ] AATA 304 (26 August 1997, Deputy President Burns). In that case, in a passage which was influential on the Tribunal as constituted for the purposes of the present proceeding, the Tribunal had observed: "The Tribunal's considered view is that when assessing whether the relevant attacks cause minor interference with activities of daily living, one must take a global approach. The circumstances of a given case may be such that one ADL is so affected, both biologically and psychosocially, as to fall to be described as "minor interference with activities of daily living". In another case however, where there is a low level of, say psychosocial, interference with several ADL, that could similarly fall to be described as "minor interference with activities of daily living". It is highly unlikely, when taking a global approach to this assessment, that a small infraction of one ADL could properly be described as "minor interference with activities of daily living"." 57 Regard to its definition in the Glossary in the Approved Guide discloses that "activities of daily living" is a collective term for a number of activities which an individual needs to perform to live. Its use saves the repeated specification, in those parts of the Approved Guide when reference to the same is directed, of each of the activities mentioned in the definition. 58 Though the term is a collective one it does not, with respect, follow that the "global approach" is thereby mandated. Indeed, in its reference to one ADL being so affected as to fall to be described as "minor interference" the Tribunal itself in O'Rourke seems to counsel against the adoption of such an approach in such a case. Be that as it may, the correct way to approach assessment in respect of those parts of the Approved Guide which make reference to the collective term "activities of daily living" is that stated by Spender J in Comcare v Emery [1993] FCA 601 ; (1993) 32 ALD 147 , at 151: "The Tribunal referred to the use of "Activities of Daily Living" in other Tables of the Guide, and said that certain conclusions could be reached. The Tribunal said: 'The first is that to find 'some supervision and direction in ADL was needed' there is no requirement that all, or most, or any one of the particular functions listed in the glossary definition have been adversely affected. Another conclusion is that the term ADL is not limited to the basic mechanics of an activity but due weight must be given to the psychosocial aspect of the function ie the ability to stand may be impaired because one cannot stand straight, or stand still or stand around on even standby without some supervision or direction.' It seems to me that no criticism can be taken of the correctness of this passage, save for the ambiguity in the reference to "any one of the particular functions listed in the glossary definition". If that reference was meant to read "any particular one" was necessary to have been adversely affected, no complaint could be made." 59 These observations were made in relation to the construction of the collective term "activities of daily living" in the context of Table 5.1 of the Approved Guide, which referred to a "need for supervision and direction in activities of daily living" They apply mutatis mutandis to the construction of that collective term in Table 13.1. Thus there is no requirement that there be "minor interference" with all, or most or any particular one of the activities listed in the definition of that collective term before a finding of "minor interference" may be made. To the extent that the "global approach" counselled in O'Rourke suggests otherwise, and that seems to be how the Tribunal in the present case understood it, it is inconsistent with the decision of this Court in Emery and should not be followed by the Tribunal.


case_outcome: considered

case_text: In aid of this submission, Mr Bryant pointed to observations made by the Full Court in Lees v Comcare (1999) 56 ALD 84 , at [39] to the effect that the powers and discretions conferred on the Tribunal by s 43 of the AAT Act are conferred for the purpose of reviewing the decision under review and are not powers able to be exercised at large. Reference was also made to observation of the Full Court of the High court in Canute v Comcare [2006] HCA 47 ; (2006) 226 CLR 535 , at 542, [14], taken up by Greenwood J in Parker v Military Rehabilitation and Compensation Commission (2007) 96 ALD 624 , at [52], to the effect that the Approved Guide fell for application through the "prism" of the injury which the claimant had suffered resulting in permanent impairment. Reliance was also placed upon the proposition, flowing from the rejection of a submission to the contrary by Jenkinson J in Comcare v Amorebieta (1996) 66 FCR 83 , at 96, that s 24(5) of the SRC Act was not to be construed in a way which admitted of an assessment of the degree of permanent impairment proportionate to the causal contribution of the incident giving rise to the compensation claim.


case_text: The Commission did not dispute that Mr Bryant had by his notice of appeal engaged the jurisdiction conferred on this Court by s 44 of the AAT Act. Though that statute terms the proceeding an "appeal", it is one in the Court's original jurisdiction. That jurisdiction is only engaged if there truly is a question of law, for that is what s 44 specifies the appeal is "on": TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 ; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 76 ALD 321 ; Price Street Professional Centre Pty Ltd v Commissioner of Taxation (2007) 243 ALR 728. Having considered the questions specified in the notice, I am satisfied that the Commission was right to adopt this stance.


case_text: In support of these submissions, Mr Bryant pointed to observations by Mason J (as he then was) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1985) 162 CLR 24 at 41 to the effect that a court may set aside an administrative decision that has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance, on the ground that the decision is manifestly unreasonable. It was also noted, by reference to Federal Commissioner of Taxation v Swift and Ors (1989) 18 ALD 679 and Riddle v Telstra Corporation Limited [2006] FCA 58 ; (2006) 149 FCR 348 , that these principles apply equally to a decision of the Tribunal. 31 In Telstra Corporation Limited v Hannaford [2006] FCAFC 87 ; (2006) 151 FCR 253 , after an exhaustive review of earlier authority, Conti J, with the agreement of Heerey and Dowsett JJ, reached (at 273-274, [57] - [59]) the following conclusions: 57 In my opinion, it should be concluded, upon the correct construction of the SRC Act , and in particular of the provisions thereof upon which I have focused attention in these reasons, that the AAT is empowered to make subsequent findings of fact in relation to the circumstances the subject of decision-making under ss 16 and 19 of the SRC Act , and also under ss 21 and 27 of the SRC Act , where the determination of the first instance decision-maker (here of course Telstra) made under the auspices of s 14 of the SRC Act remains in operation in the sense that it has not been the subject of any inconsistent outcome in the context of a subsequent review by the AAT. The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability, whether that determination be made in isolation, or in the context of decision-making concerning consequential relief that may be required in the light of evolving circumstances. It is therefore a scheme which allows progressively for ongoing relief, and is thus not comparable of course with the process of curial resolution of the traditional common law entitlement of an injured employee for damages as a consequence of the negligent conduct of an employer. The opening words of s 14(1) '[s]ubject to this Part...' are consistent with the flexibility inherent in the ensuing codification of the various facets of compensation envisaged. 58 The first instance decisions of this Court in Power, Hill and Riddle, which I have reviewed, each reflect in my opinion correctly the operation of the statutory scheme, and in particular its provision for ongoing adjustment designed to accommodate changing circumstances inclusive for instance (as here involved) of changing medical diagnosis. The approach to statutory construction and operation evident in those first instance authorities is not at odds with the approach to statutory construction and operation adopted by the Full Court in Lees subsequently to Power and Hill and prior to Riddle . 59 I would therefore conclude , contrary to the decision of the primary judge, that the AAT below was duly empowered , upon the true construction of the SRC Act and in the events which happened: (i) to make findings of fact that effectively undercut the necessary findings of fact made in the initial or original decision of Telstra under s 14 of the SRC Act to accept liability in respect of Mr Hannaford's claim for compensation; and (ii) to do so in circumstances where the AAT was undertaking its review of whether any compensation should be payable or further payable, for instance under ss 16 and 19 of the SRC Act , and/or under ss 21 and 27 of the SRC Act ; and (iii) to do so in the circumstances further where Telstra's s 14 decision remained in force to the extent that it had not been actually reversed, and had not been the subject of any adverse review per se by the AAT. In short, it matters not, upon the true construction of the SRC Act , that there has never been any reconsideration of the determination of Telstra of 8 May 2002 whereby liability under s 14 thereof for Mr Hannaford's claim originally made on 1 May 2002 had been accepted. (Emphasis added; citations for cases referred to in the passage quoted omitted)


case_text: The submission for Mr Bryant that this constituted " Wednesbury unreasonableness" misconceives the nature of that type of error of law. As Gummow J explained in Minister for Immigration and Multi-cultural Affairs v Eshetu at 649, [124] this descriptor, derived from the decision of the English Court of Appeal in Associated Provincial Picture Houses Ltd v Wednesbury Corporation , refers to that body of administrative law which is concerned with the judicial review of the abuse of discretionary powers. When standing in the Commission's place so as to decide whether Mr Bryant had an entitlement to compensation under s 24 of the SRC Act the Tribunal was not exercising a discretionary power. Neither does s 24 of the SRC Act posit an eligibility test grounded in a state of administrative satisfaction to a state of affairs. The principles attending the judicial review of a decision made under this type of statutory provision were comprehensively discussed by Gummow J in Eshetu's case, but are of no present relevance. That is not to say that no error of law is revealed. If the Tribunal reaches a conclusion critical to its determination without any material to support that conclusion that is an appealable error of law: Secretary, Department of Social Security v Murphy [1998] FCA 809 ; (1998) 52 ALD 268 , at 271-272.


case_outcome: followed

case_text: For its part, the Commission submitted, principally by reference to Telstra Corporation Limited v Hannaford [2006] FCAFC 87 ; (2006) 151 FCR 253 , that, questions of liability to pay compensation under s 24 of the SRC Act can involve "primary aspects" of liability such as whether there is an "injury" for the purposes of that Act. The Commission also emphasised that the Tribunal was not obliged, subject to procedural fairness considerations, to limit the conduct of its review to the case presented by the parties, citing Grant v Repatriation Commission [1999] FCA 1629 ; (1999) 57 ALD 1 and Bramwell v Repatriation Commission (1998) 158 ALR 623 in support of this proposition. 31 In Telstra Corporation Limited v Hannaford [2006] FCAFC 87 ; (2006) 151 FCR 253 , after an exhaustive review of earlier authority, Conti J, with the agreement of Heerey and Dowsett JJ, reached (at 273-274, [57] - [59]) the following conclusions: 57 In my opinion, it should be concluded, upon the correct construction of the SRC Act , and in particular of the provisions thereof upon which I have focused attention in these reasons, that the AAT is empowered to make subsequent findings of fact in relation to the circumstances the subject of decision-making under ss 16 and 19 of the SRC Act , and also under ss 21 and 27 of the SRC Act , where the determination of the first instance decision-maker (here of course Telstra) made under the auspices of s 14 of the SRC Act remains in operation in the sense that it has not been the subject of any inconsistent outcome in the context of a subsequent review by the AAT. The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability, whether that determination be made in isolation, or in the context of decision-making concerning consequential relief that may be required in the light of evolving circumstances. It is therefore a scheme which allows progressively for ongoing relief, and is thus not comparable of course with the process of curial resolution of the traditional common law entitlement of an injured employee for damages as a consequence of the negligent conduct of an employer. The opening words of s 14(1) '[s]ubject to this Part...' are consistent with the flexibility inherent in the ensuing codification of the various facets of compensation envisaged. 58 The first instance decisions of this Court in Power, Hill and Riddle, which I have reviewed, each reflect in my opinion correctly the operation of the statutory scheme, and in particular its provision for ongoing adjustment designed to accommodate changing circumstances inclusive for instance (as here involved) of changing medical diagnosis. The approach to statutory construction and operation evident in those first instance authorities is not at odds with the approach to statutory construction and operation adopted by the Full Court in Lees subsequently to Power and Hill and prior to Riddle . 59 I would therefore conclude , contrary to the decision of the primary judge, that the AAT below was duly empowered , upon the true construction of the SRC Act and in the events which happened: (i) to make findings of fact that effectively undercut the necessary findings of fact made in the initial or original decision of Telstra under s 14 of the SRC Act to accept liability in respect of Mr Hannaford's claim for compensation; and (ii) to do so in circumstances where the AAT was undertaking its review of whether any compensation should be payable or further payable, for instance under ss 16 and 19 of the SRC Act , and/or under ss 21 and 27 of the SRC Act ; and (iii) to do so in the circumstances further where Telstra's s 14 decision remained in force to the extent that it had not been actually reversed, and had not been the subject of any adverse review per se by the AAT. In short, it matters not, upon the true construction of the SRC Act , that there has never been any reconsideration of the determination of Telstra of 8 May 2002 whereby liability under s 14 thereof for Mr Hannaford's claim originally made on 1 May 2002 had been accepted. (Emphasis added; citations for cases referred to in the passage quoted omitted) 34 Mr Bryant did not seek reconsideration of the determination of 25 January 2006. The status of this determination is identical to the earlier determination made by Telstra, that of 8 May 2002, analysed by Conti J in Telstra Corporation Limited v Hannaford . Mr Bryant sought reconsideration only of the later, 16 March 2006 determination, described at the outset of these reasons. When, on 24 July 2006, a decision was made on reconsideration it was that decision, and that decision alone, which became the "reviewable decision" for the purposes of s 64 of the SRC Act . 35 In the passage from Telstra Corporation Limited v Hannaford which I have quoted above Conti J does not, in terms, mention s 24 of the SRC Act , instead referring to ss 16 , 19 , 21 and 27 of the SRC Act . However, his Honour's reference to these particular provisions was clearly by way of example (witness their being preceded by "for instance"). The compensation for which s 16 (compensation for medical expenses and the like), s 19 (compensation types for injuries resulting in incapacity), s 21 (compensation for injuries resulting in incapacity where the employee is in receipt of a lump sum benefit) and s 27 (compensation for non-economic loss) respectively provide are but particular types of compensation eligibility for which is enlivened, subject to the additional satisfaction of their relevant statutory criteria, once it has been concluded that an "injury" for the purposes of the SRC Act has been suffered. Compensation for an injury which has resulted in permanent impairment, for which s 24 of the SRC Act provides, is another. Each of these is a type of compensation for which Part II of the SRC Act provides. In these circumstances, there is no material distinction to be drawn between Telstra Corporation Limited v Hannaford and the present case. 36 It follows, to paraphrase and adapt for present application the conclusions reached in Telstra Corporation Limited v Hannaford , that, providing procedural fairness was observed, the Tribunal was duly empowered, upon the true construction of the SRC Act and in the events which happened: (i) to make findings of fact that effectively undercut the necessary findings of fact made in the decision of the Commission under s 14 of the SRC Act to accept liability in respect of Mr Bryant's claim for compensation; and (ii) to do so in circumstances where the Tribunal was undertaking its review of whether any compensation should be payable or further payable under s 24 of the SRC Act ; and (iii) to do so in the circumstances further where the Commission's s 14 decision remained in force to the extent that it had not been actually reversed, and had not been the subject of any adverse review per se by the Tribunal. 37 To the extent that Mr Bryant contends for a contrary conclusion, that contention must be rejected. 38 Paragraphs 37, 39, 40 and 41 of the Tribunal's reasons evidence that the Tribunal did consider whether Mr Bryant indeed suffered from the hitherto accepted "injury" of "muscle tension type headaches". The Tribunal concluded that he did. In so doing, the Tribunal necessarily accepted that Mr Bryant suffered from a "disease" for the purposes of the SRC Act , i.e. materially, an ailment suffered by him that was contributed to in a material degree by his employment by the Commonwealth (see; the then definition of "disease" in s 4 of the SRC Act ). At the relevant time, the SRC Act provided that an "injury" included a "disease" (definition of "injury" in s 4 , SRC Act ).


case_title: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175


case_text: In regard to the construction and application of Table 13.1 in the Approved Guide, Mr Bryant's submission was that the Tribunal's reliance on an earlier Tribunal decision, O'Rourke v Comcare [1997] AATA 304 , led it to apply an incorrect construction of the term "minor interference". Mr Byrant's submissions proceeded as follows. The global approach to "minor interference" in O'Rourke v Comcare , is contrary to the approach the Court has taken to interpreting the Guide in Whittaker v Comcare [1998] FCA 1099 ; (1998) 86 FCR 532 and Comcare v Fiedler [2001] FCA 1810 ; (2001) 115 FCR 328. These cases are, it was submitted, supportive of the proposition that, where there is ambiguity in a phrase, as there is with "minor interference", then the Tribunal should take the approach most favourable to the employee. If the global approach in O'Rourke v Comcare has the effect of limiting or reading down the meaning of "minor interference" then it ought not be followed. If an "activity of daily living" (ADL) is interrupted, temporarily suspended or ceased altogether because of a headache that amounted, it was submitted, to an interference and whether it is minor or significant depended on the frequency, duration and severity of attacks. Where headaches amount to more than a de minimus interference with ADL, it was submitted that this would then constitute a "minor interference". It was submitted that Mr Bryant's medical history, as provided to Dr Lethlean, which history was assumed to be uncontroversial, would fall within the meaning of "minor interference" so construed and hence amounted to a 10% impairment under Table 13.1 of the Approved Guide. 29 On behalf of the Commission, it was submitted that the comparison between the term "difficulty", as considered in Whittaker v Comcare and Comcare v Fiedler , and the term "interference" as used in Table 13.1 of the Approved Guide was not appropriate to support a de minumus argument. In support, the Commission pointed to the observation of the Full Court in Fiedler at [24] that, "There is no reason to think the Tribunal considered that any difficulty with digital dexterity, no matter how slight, was sufficient to come within par 1 of Table 9.4". 53 Like the other provisions of the Approved Guide, if competing constructions of Table 13.1 are open, that which favours the employee is the one to be preferred: Whittaker v Comcare [1998] FCA 1099 ; (1998) 86 FCR 532 at 544-545 (Full Court), citing with approval remarks earlier made by Olney J in Comcare v Tiscay (1992) 32 FCR 181 at 188.


case_outcome: cited

case_title: Bell-Booth v Bell-Booth [1998] 2 NZLR 2

case_text: provision of reasons serves a valuable purpose in the administration of justice: C onnell v Auckland City Council [1977] 1 NZLR 630. Chilwell J there observed, at 634: A matter which I have not mentioned, which is another reason for requiring the stating of reasons, is this: every litigant who loses his action, whether it be in the civil or criminal jurisdiction, is a disappointed litigant. That is inevitable and is a logical result of our judicial system. There is all the world of difference between a disappointed litigant and a disturbed litigant. In the latter category come litigants who cannot understand why the decision went against him. In this case the appellant would be justified in feeling disturbed as he presumably does because he has brought this appeal. He is disturbed that justice did not appear to him to have been done. It is of the utmost importance that Her Majesty's subjects should have faith in our judicial system. By far the greatest number of civil and criminal cases come before the lower court. One should not draw distinctions between courts but it is of fundamental importance that the lower courts, which deal with so much work and with whom the average citizen has greater contact, should maintain respect for and faith in the judicial system. Applied: SZKLO v Minister for Immigration and Citizenship [2008] FCA 735 at [20] , 102 ALD 115 at 120. In a subsequent decision of the New Zealand Court of Appeal in Bell-Booth v Bell-Booth [1998] 2 NZLR 2 at 6 the Court observed: Reasons for judgment are a fundamental attribute of the common law. The affinity of law and reason has been widely affirmed and a Judge's reasoning — his or her reasons for the decision — is a demonstration of that close assimilation. Arbitrariness or the appearance of arbitrariness is refuted and genuine cause for lasting grievances is averted. Litigants are assured that their case has been understood and carefully considered. If dissatisfied with the outcome, they are able to assess the wisdom and worth of exercising their rights of appeal. At the same time public confidence in the legal system and the legitimacy and dynamic of the common law is enhanced. The legal system can be seen to be working and, although possibly at times imperfectly, striving to achieve justice according to law.


case_text: Commissioner for Railways for the State of Queensland v Peters (1991) 24 NSWLR 407, the Court of Appeal was entertaining an appeal from an award entered in the Compensation Court. The primary Judge in his reasons stated that regardless of any determination of his own, the matter was to be removed forthwith to the High Court. The delivery of " lengthy reasons ", according to the primary Judge, was thus considered to be of " little assistance ". The transcript of submissions was incorporated into the reasons and preference expressed for the submissions of the worker and the State. " The applicant ", the primary Judge concluded, " has discharged his onus in all respects and is entitled to an award ". Kirby P (as His Honour then was) voiced similar concerns to those expressed by the New Zealand Court of Appeal when he observed (in part) as follows, at 416: ... [I]t is worth collecting the reasons which obliged his Honour to provide more than the findings offered in this case. They included: (1) The fact that the High Court had returned the cause to the Compensation Court specifically to permit the ordinary procedures of the law to be followed. These include proper fact finding at first instance. Only if this course is followed will appellate courts be saved the time otherwise taken in determining the facts, isolating the issues, removing issues not seriously in contention and addressing those which are; (2) The judicial reasons at first instance are of benefit not only to the parties and their advisers, but also to the appellate court. The analysis of issues by one legally trained mind will often help others to cut through the issues on appeal to those which are most important. This is especially true in a case where multiple issues are raised, as in this case; (3) It may be possible to conceive an instance where the incorporation of submissions by one party in reasons for judgment would be an adequate compliance with the judicial duty to provide reasons. That was certainly not the case here. ... In applying this decision it has subsequently been held that "... it is generally true that merely to set out two competing sets of reasons and to say that one is preferred ... is not a satisfactory method of complying with the judicial duty to give reasons ": Fyntray Constructions Pty Ltd v Macind Drainage & Hydraulic Services Pty Ltd [2002] NSWCA 238 at [66] per Heydon JA (Hodgson JJA and Ipp AJA agreeing). See also: Goldsmith v Villanueva [2000] NSWSC 1181 at [13] per Adams J; Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49 at [44] to [45] per Perram J.


case_outcome: discussed

case_title: Commissioner for Railways for the State of Queensland v Peters (1991) 24 NSWLR 407


case_title: C onnell v Auckland City Council [1977] 1 NZLR 630


case_text: appeal to this Court from an interlocutory decision of the Federal Magistrates Court requires leave: Federal Court of Australia Act 1976 (Cth) s 24(1A). Considerations relevant to the exercise of that discretion are ( Décor Corp Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 at 398 to 399, per Sheppard, Burchett and Heerey JJ): No Application seeking leave has been filed in this Court. The proceeding in this Court was commenced by a purported Notice of Appeal as filed on 24 December 2008. In accordance with Directions given by the Registrar on 14 January 2009, the purported appeal has been treated as an Application for leave to appeal and the Notice of Appeal as a draft of the Notice that would be filed if leave were granted. The handwritten Grounds of Appeal set forth as follows (without alteration): The single judge of the Federal Magistrate Court in His Honours judgement delivered on ... failed to find error of law, jurisdictional error, procedural fairness and relief under section 39B of the Judiccery Act 1903. The learned Federal Magistrate has dismissed my application without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal. A written Outline of Submissions has, however, been filed by the Applicant. That outline seeks to advance the following contentions (without alteration): 1. His Honours should have found that the Tribunal failed to appropriately deal with the documents in particular the inference that the documents are fabricated thus breaching section 424A. Particulars The Tribunal inferred that the documents that the applicant's submitted were fabrication. The Tribunal has not given the applicant an opportunity in the section 424A letter to deal with the claim raised by the Appellant. His Honours should have found that the Tribunal erred by not allowing the appellant to explain the documents and rebut any inference of fabrication breaching section 425 of the Migration Act . Particulars The Tribunal has drawn an inference that the independent country information about the prevalence of document fraud in Bangladesh, yet the appellant was not given the opportunity to rebut this inference. Notwithstanding the form of the document filed, it is in effect an application to amend what has been treated as a draft Notice of Appeal . The Applicant appeared before the Court unrepresented, although he did have the benefit of an interpreter. He accepted that the argument set forth in his written Outline of Submissions had not been advanced before the Federal Magistrate. The explanation provided was that the prospect of raising that argument was only raised by a " friend " in conversation subsequent to the hearing conducted by the Federal Magistrates Court. Notwithstanding considerable reservation, it is considered that leave to appeal should be refused. Reservation is occasioned by the manner in which the Federal Magistrate has expressed his reasons for decision. Those reasons occupy some nine pages — of those nine pages, over two pages set out verbatim the submissions of the Minister as to the relevant " background "; one page sets out verbatim the grounds of the Amended Application ; and a further two pages adopt and set out verbatim the Minister's written submissions on substantive issues. The balance of the judgment — some four pages — sets out the reasons as expressed by the Federal Magistrate.


case_title: Fyntray Constructions Pty Ltd v Macind Drainage & Hydraulic Services Pty Ltd [2002] NSWCA 238


case_title: Goldsmith v Villanueva [2000] NSWSC 1181


case_outcome: applied

case_title: Harrington v Rich [2008] FCAFC 61 , 166 FCR 440


case_text: is equally no injustice to the Applicant in not now entertaining the argument as to the failure on the part of the Tribunal to itself initiate further inquiries, as there is no such general duty imposed upon the Tribunal. In Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 , the Full Court held that there is no duty upon the Tribunal to undertake its own investigation into the authenticity of documents supporting a visa application. Black CJ, von Doussa, Sundberg and Mansfield JJ there noted at 561: Although we have concluded that there may be circumstances in which the Tribunal's obligation to act according to substantial justice requires it to make inquiries, we are respectfully unable to agree with the primary judge's general proposition that where an applicant produces a document which purports to be an official document issued in a foreign country, its disputed authenticity is a matter appropriate for verification by the Tribunal through official channels ... In a particular case the Tribunal may indeed be obliged to verify a document in this fashion, but there is no general rule to that effect. In that case, the purported source of the Tribunal's obligation to make inquiries was s 420 of the Migration Act . Nor can a duty to enquire be sourced from s 427(1)(d) of the Migration Act . This provision empowers the Tribunal to make its own inquiries for the purpose of reviewing a decision, but it creates no obligation on the part of the Tribunal: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 , 78 ALD 224 per Gummow and Hayne JJ at [43] and Callinan J at [124]; WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 per Heerey, Nicholson and Mansfield JJ at [24] to [25]; SZATG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1595 , 83 ALD 596 per Hely J at [22]. In the present case, there is no error in the Tribunal proceeding to make its decision without pursuing further inquiries of its own initiative into the veracity of the Appellant's documentation.


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 , 78 ALD 224


case_text: relevant to any exercise of discretion is any explanation for the failure to raise the fresh argument sought to be relied upon: e.g. MZXEN v Minister for Immigration and Citizenship [2007] FCA 829 , 240 ALR 582. In the present proceeding no explanation was forthcoming as to why the argument was not previously relied upon before the Federal Magistrate.


case_title: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 , 147 FCR 51

case_text: to the exercise of any discretion is an assessment as to whether it is " expedient in the interests of justice" to allow the fresh argument to be now relied upon: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158. Kiefel, Weinberg and Stone JJ there concluded: [46] In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so ... [47] In Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 , Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7: "It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish." [48] The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court. Applied: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 at [163] , [2005] FCAFC 134 ; 147 FCR 51 at 84 per Madgwick J (Conti J agreeing).


case_title: SZATG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1595 , 83 ALD 596


case_title: SZKLO v Minister for Immigration and Citizenship [2008] FCA 735 , 102 ALD 115


case_text: Application for review of the Tribunal's decision was filed in the Federal Magistrates Court on 2 October 2008 and an Amended Application was subsequently filed on 28 November 2008. That Court dismissed the Application pursuant to Rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) on 8 December 2008: SZMUV v Minister for Immigration and Citizenship [2008] FMCA 1644. Rule 44.12 of the 2001 Rules provides as follows: Show cause hearing (1) At a hearing of an application for an order to show cause, the Court may: (a) if it is not satisfied that the application has raised an arguable case for the relief claimed — dismiss the application; or (b) if it is satisfied that the application has raised an arguable case for the relief claimed — adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application. (2) To avoid doubt, a dismissal under paragraph (1) (a) is interlocutory. As r 44.12(2) expressly provides, the dismissal of an application under r 44.12(1)(a) is an interlocutory decision. That difficulty is only compounded by the generality of the submissions previously advanced by the Respondent Minister and thereafter incorporated in the Magistrate's reasons. A principal ground being advanced before the Federal Magistrate by the present Applicant was a denial of procedural fairness " by reaching adverse conclusions that the Tribunal did not find the applicant to be a credible or reliable witness, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters ". The written submission advanced by the Minister and incorporated into the reasons simply asserted: The particulars of this ground are that the Tribunal's adverse credit findings against the applicant were not "obviously open to it" and that (therefore) it did not give the applicant an opportunity to be heard on those matters. There is no substance in this complaint. The applicant was on notice from the delegate's decision that his credit was in issue. Furthermore, contrary to the applicant's assertion, the adverse credit findings of the Tribunal were obvious inferences from the evidence before it. The Magistrate then concluded that " (t)he adverse credibility findings made by the Tribunal were open to it on the material before it ": [2008] FMCA 1644 at [5] . Both the submission and the reason provided are but generalities. In contrast stand the reasons of the Tribunal. The Tribunal expressed its finding as to credibility and then went on to provide instances to support its finding. For example, the Tribunal concluded as follows: [84] I did not find the applicant to be a credible or reliable witness. With respect to the material aspects of his claim I found his evidence to be vague and at times confusing. [85] I do not accept that the applicant is or was a member or office holder in the Chatra League or the Awami League. The applicant's evidence was vague and full of generalities. I would have expected that if he had been a General Secretary or any office holder he would have been able to give me a more detailed account of how he joined the party, the nature of his activities with which he was involved and of his role as office holder. I found his evidence to be confused and lacking in credibility. He claimed that a relative was a Member of Parliament for the Awami League however could not tell me the name of his seat or any other details relating to his candidature. I would have expected that he would have had a better understanding of the organisation of the Awami League and how it operates in the Comilla area and greater knowledge of the structures and organisation of the party. On balance, however, it is considered that the reasons of the Magistrate: (i) disclose the reasoning process in fact adopted; and (ii) display no appellable error. Notwithstanding the extent to which the Magistrate has placed reliance upon the material incorporated within his reasons for judgment, the remaining brevity of the language of the Magistrate does indicate that he did give independent consideration to each of the grounds sought to be advanced. The Magistrate correctly concluded that " the applicant failed before the Tribunal because he was not believed ": [2008] FMCA 1644 at [5] . He then went on to address, albeit briefly, the arguments founded upon an alleged breach of s 424A of the Migration Act 1958 (Cth) and an allegation of actual bias. The decision in SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638 , 105 ALD 25, it was concluded, was to be distinguished. The very process of distinguishing that decision exposes not only an independent consideration of the facts of SZDGC but an independent consideration of the facts of the case then before him and an analysis of the decision of the Refugee Review Tribunal. Obvious care must be taken to ensure that an appeal does not become a vehicle for simply criticising the manner in which the reasons of a judge at first instance have been expressed. Recognition must also be given to the fact that the Federal Magistrates Court is entrusted with a primary role in resolving migration cases. In that Court in 2007 over 1500 migration applications were filed and more than 2000 migration matters were finalised. These figures were higher still in each of the three preceding years. Any review of the reasons as provided by a Federal Magistrate must necessarily take into account the sheer number of the cases that that Court has to resolve. But there is a point below which the economy of language with which reasons may be expressed cannot trespass. In the present proceeding it is unquestionably the case that the reasons for decision of the Federal Magistrate may have been better expressed and more fully expressed. Had that course been taken, the Applicant may well have continued to express regret — but he would at least feel confident that his case had been thoroughly considered.


case_title: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158


case_title: WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277


case_title: Australian Securities and Investments Commission , In the Matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 3) [2006] FCA 433

case_text: For reasons published on 20 April 2006 orders were made appointing receivers to the property of the four individuals and three of the corporations being the fifth, sixth and eighth defendants Australian Securities and Investments Commission, In the Matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 3) [2006] FCA 433. A separate order, by way of a Mareva injunction, was made against the seventh defendant, Bowesco Pty Ltd, which was already in receivership under the terms of securities over its assets. Similar orders were made in relation to Keypoint Developments on 26 May 2006 - Australian Securities and Investments Commission, In the Matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 4) [2006] FCA 644.


case_title: Australian Securities and Investments Commission, In the Matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 4) [2006] FCA 644


case_text: In accordance with the authorities relating to the application of s 1323 and its predecessors there was no requirement on ASIC to demonstrate a prime facie case of liability on the part of the defendants or that they had contravened any law or even that their assets had been or were about to be dissipated. There was therefore a need for restraint in the formulation of orders made under the section. The appointment of a receiver is 'an extraordinary step' Australian Securities and Investment Commission v Burke [2000] NSWSC 694 at [8] (Austin J). In the present case the interlocutory character and protective purposes of the orders made were considered in defining the limits of the receivers' powers. The powers so defined were a moderated and qualified version of those initially sought by ASIC.


case_text: The provisional character of the judgments upon which the orders for the appointment of the receivers were based informs consideration of the question whether the receivers' costs of discharging their functions under those orders should be borne by the defendants. It is not the object of the orders made under s 1323 to punish the defendants. Their object is to preserve their assets and thereby protect the interests of persons to whom they may have a liability. A secondary object is to ascertain the extent of the assets. This understanding of the purpose of such orders is well established in case law relating to s 1323 and its predecessors. In Corporate Affairs Commission v Smithson (1984) 3 NSWLR 547, Waddell J said of the like provisions of s 573 of the Companies (New South Wales) Code (at 553): '... the purpose of appointing a receiver is to provide security for the moneys which the relevant person is, or may become, liable to pay.' See also Corporate Affairs Commission v Transphere (1988) 15 NSWLR 596 at 611; Corporate Affairs Commission v ASC Timber Pty Ltd (1992) 10 ACSR 525 at 531. 21 The point was well made by Waddell J in Corporate Affairs Commission v Smithson in which the appointment of receivers under s 573 of the Corporations (New South Wales) Code was considered. The section was, in the relevant parts, similar to s 1323. Waddell J pointed to the 'severe effects' that the appointment of a receiver might have upon a defendant noting that the court was precluded from requiring the Commission to give an undertaking as to damages as a condition of appointing a receiver. Unjustified and irrecoverable damage could be suffered where the relevant person was subject to the appointment of receivers as security for claims which might not be made out. Waddell J further said (at 556): 'If a receiver is appointed on terms which permit him to take his remuneration out of the assets received by him, the unjustified damage caused to the relevant person would be so much greater. It should not be thought that in every case the property of a relevant person may be taken over by a receiver and his financial affairs investigated in order to provide security for claims against him, which may or may not succeed, on the basis that in any event the relevant person will have to pay the receiver's remuneration. It may well be that in a particular case, in order to avoid such a consequence, no order should be made permitting the receiver to take his remuneration out of the assets received, thus leaving it to the Commissioner to be responsible for such remuneration pending a determination of the liability of the relevant person.' In Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194, Hill J cited the passage from the judgment of Waddell J including that quoted above, and said (at 204): 'I am in complete agreement with what is said by Waddell J.' 56 In my opinion the Court has the power to order the examination of a party on the adequacy of a disclosure affidavit provided pursuant to an order of the Court under s 1323 of the Corporations Act . In Corporate Affairs Commission v Smithson, Waddell J said (at 554): 'What then can be done to enforce an order made under s 573 for the appointment of a receiver of all of the property of a relevant person? Such an order should, I think, ordinarily be accompanied by an order having the effect of requiring the relevant person to file in court an affidavit listing all his property and a further order having the effect of requiring him to transfer or deliver all of it to the receiver. If the relevant person fails to comply with such orders proceedings could be taken against him for contempt of court or, in my opinion, an order could be made under the Supreme Court Rules 1970 , Pt 43 , r 1, for him to attend before an officer of the court and be orally examined on such questions concerning or in aid of the enforcement of the order as may be specified in the order for examination. Under that rule he can also be required to produce documents.' 57 The Court may make such ancillary orders in support of its disclosure requirements as are necessary to enable the receivers it has appointed properly to discharge their functions. The power to do so derives from s 23 of the Federal Court Act , if from no other source. That power may well have a wider application than the power to make orders ancillary to a Mareva or other injunction in proceedings between private parties. The Court could, as an incident of its power to appoint receivers, require a relevant person to present himself or herself for examination by the receivers or ASIC before a Registrar in order to ascertain the extent and nature of the person's assets. The use of a disclosure affidavit is not required in every case. It is simply a mechanism to the same end. The Court is not confined to directing the filing of a disclosure affidavit and only if that is inadequate directing oral examination of the deponent. 58 In my opinion there is a real possibility that the disclosure affidavits sworn by Mr Carey have failed to disclose the full extent of assets and property owned or controlled by him or in relation to which he has an interest. The term 'control' used in Order 4 is to be interpreted according to its ordinary meaning and not limited to property in which he has a legal or beneficial interest.


case_text: The provisional character of the judgments upon which the orders for the appointment of the receivers were based informs consideration of the question whether the receivers' costs of discharging their functions under those orders should be borne by the defendants. It is not the object of the orders made under s 1323 to punish the defendants. Their object is to preserve their assets and thereby protect the interests of persons to whom they may have a liability. A secondary object is to ascertain the extent of the assets. This understanding of the purpose of such orders is well established in case law relating to s 1323 and its predecessors. In Corporate Affairs Commission v Smithson (1984) 3 NSWLR 547, Waddell J said of the like provisions of s 573 of the Companies (New South Wales) Code (at 553): '... the purpose of appointing a receiver is to provide security for the moneys which the relevant person is, or may become, liable to pay.' See also Corporate Affairs Commission v Transphere (1988) 15 NSWLR 596 at 611; Corporate Affairs Commission v ASC Timber Pty Ltd (1992) 10 ACSR 525 at 531.


case_title: Corporate Affairs Commission v ASC Timber Pty Ltd (1992) 10 ACSR 525


case_text: The Corporations Act does not expressly authorise the Court to make an order that the persons or companies who are the subject of the orders appointing receivers to their property pay the costs of those receivers in discharging their function. The Court may confer upon the receivers 'such powers as the Court orders'. Such powers necessarily relate to the ways in which the receivers can deal with a relevant person's property. The imposition of a costs liability by the Court is not readily accommodated by words authorising it to confer powers on the receivers. Absent any express power in the Corporations Act the relevant provision can be found in s 23 of the Federal Court Act or in the implied incidental power Jackson v Sterling Industries Ltd [1987] HCA 23 ; (1987) 162 CLR 612. 20 Although, in my opinion, the existence of a power to impose a liability to pay receivers' remuneration out of the defendants' assets can be found in s 23 as an incident of the powers conferred on the Court by s 1323 of the Corporations Act , it is not lightly to be exercised.


case_text: The point was well made by Waddell J in Corporate Affairs Commission v Smithson in which the appointment of receivers under s 573 of the Corporations (New South Wales) Code was considered. The section was, in the relevant parts, similar to s 1323. Waddell J pointed to the 'severe effects' that the appointment of a receiver might have upon a defendant noting that the court was precluded from requiring the Commission to give an undertaking as to damages as a condition of appointing a receiver. Unjustified and irrecoverable damage could be suffered where the relevant person was subject to the appointment of receivers as security for claims which might not be made out. Waddell J further said (at 556): 'If a receiver is appointed on terms which permit him to take his remuneration out of the assets received by him, the unjustified damage caused to the relevant person would be so much greater. It should not be thought that in every case the property of a relevant person may be taken over by a receiver and his financial affairs investigated in order to provide security for claims against him, which may or may not succeed, on the basis that in any event the relevant person will have to pay the receiver's remuneration. It may well be that in a particular case, in order to avoid such a consequence, no order should be made permitting the receiver to take his remuneration out of the assets received, thus leaving it to the Commissioner to be responsible for such remuneration pending a determination of the liability of the relevant person.' In Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194, Hill J cited the passage from the judgment of Waddell J including that quoted above, and said (at 204): 'I am in complete agreement with what is said by Waddell J.'


case_text: In Australian Securities Commission v Berona Investments Pty Ltd (1995) 18 ACSR 772, Cooper J held that the conduct of the respondents and their controllers had resulted in the appointment of the receivers and that there was therefore no need to depart from 'the ordinary rule that the respondents be liable for the costs of the receiver appointed by the Court'. In so concluding, Cooper J cited a judgment of McPherson J in Rosanove v O'Rourke (1987) 1 Qd R 275. The question in that case was whether receivers appointed in the equitable jurisdiction of the Supreme Court of Queensland, to a partnership in dispute, should be able to recover against the partners personally for their remuneration where partnership assets were not sufficient. McPherson J answered the question in the affirmative but was reversed in the Full Court in Rosanove v O'Rourke (1988) 1 Qd R 171. It was not in dispute that the receivers could recover their remuneration out of the assets of the partnership. Connolly J said (at 174): 'Trustees and receivers are, generally speaking, in a similar position in at least two respects. First, both are permanently liable on their contracts and second, both have a right of indemnity out of the property or estate.' That similarity did not extend to the trustee's right to recover from a beneficiary personally the amount expended by them (174). In my opinion the position of a receiver appointed in the exercise of equitable jurisdiction differs from that of a receiver appointed in the exercise of the statutory power conferred by s 1323. There is no entitlement, that goes with the appointment, to recover remuneration from the assets of the relevant person. The appointment under s 1323 when made on the application of ASIC and based on an ongoing investigation, aids the public regulatory and protective functions conferred upon ASIC by the Corporations Act and by the Australian Securities and Investments Commission Act 2001 (Cth) . That is a foundation for such an appointment which differs from that which underpins the private equitable remedy.


case_title: Rosanove v O'Rourke (1988) 1 Qd R 171


case_text: In Australian Securities Commission v Cooke (1996) 22 ACSR 580, Nicholson J made an order for receiver's costs under s 1323 to recover remuneration out of the estate of the relevant person. There were, however, no reasons given to explain that order and it does not appear that it was the subject of any argument before his Honour. 24 I do not consider at this stage that, absent agreement, I should order that the receivers recover the costs and remuneration out of the assets of the defendants. While there are serious concerns about the conduct of the defendants, these are based on provisional judgments about the facts. No liability has been ascertained. I am prepared to make an order in respect of the third and fourth defendants because they have consented to that course no doubt on the basis that they are insulated from the risk of having to contribute to the costs of the receiverships over other defendants. ASIC will have liberty to apply again for the orders it seeks as circumstances change. It may also seek an order at or before the end of the receivership that it be indemnified out of the assets of the defendants (other than the third and fourth defendants) for any payments made by it to the receivers in relation to the discharge of their functions. 25 In the orders made on 20 April 2006 there was included, as against Mr Carey and other individual defendants, an order in the following terms: 4. Except to the extent that a claim of privilege against self incrimination or exposure to civil penalty is made by any of the First, Second, Third and Fourth Defendants, each of the First, Second, Third and Fourth Defendants shall, by 5.00pm on Thursday 4 May 2006, deliver or cause to be delivered to the Plaintiff and the Individual Receivers full and detailed affidavits sworn by each of them, setting out: 4.1 the name and address of any bank, building society or other financial institution at which there is an account in the name of or under the control of the respective Defendant, together with the number of such account, the name of such account and the balance of that account at the date of this Order; 4.2 the name and address of any person or persons indebted to the respective Defendant at the date of this Order and the amount of the indebtedness; 4.3 an itemised inventory of the respective Defendant's assets and liabilities; 4.4 an itemised inventory of any and all property whether real or personal; 4.4.1 owned by the respective Defendant; 4.4.2 controlled by the respective Defendant; and 4.4.3 in which the respective Defendant has an interest, and which includes details of the location of that property;...'


case_text: As a primary position, Mr Carey argued that the Court should not be required to look beyond the affidavits which he had filed. It was submitted that cross-examination of a deponent of a disclosure affidavit will not normally be ordered. An order for cross-examination should only be made when such an order is the only just and convenient way of ensuring the deponent would not deal with his assets so as to deprive a plaintiff of the fruits of a judgment. Reference was made to Kodak (Australasia) Pty Ltd v Cochran (unreported Supreme Court of New South Wales, Equity Division, Brownie J, 4 April 1996); House of Spring Gardens v Waite (1985) FSR 173. It was also submitted that it may not be appropriate to make an order for cross-examination when a deponent is prepared to provide a further affidavit. He cited Planet International Ltd v Garcia (No 2) [1991] 1 Qd R 426.


case_title: House of Spring Gardens v Waite (1985) FSR 173


case_title: Planet International Ltd v Garcia (No 2) [1991] 1 QD R 426


case_text: The elements of a conspiracy claim were discussed by Hely J in Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 at [60] - [64] . At [61], his Honour identifies the necessary elements of the tort as follows: (i) a combination or agreement between two or more individuals; (ii) an intent to injure; (iii) the carrying out of certain acts pursuant to that agreement and with that intention; and (iv) loss and damage to the claimant. The elements of the tort of conspiracy are briefly set out in Bullen & Leake & Jacob's Precedents of Pleadings , Vol 2, 15 th edn, Sweet & Maxwell, London, 2004 at [50]. 9 Although the Notice of Motion originally filed by the Novapharm parties challenged the pleadings filed by Sheiman and sought summary dismissal of the proceeding, the Novapharm parties no longer press this point. However, they continue to press the application for security for costs, which I deal with below. 10 Shelston, on the other hand, submits that no cause of action has been disclosed as against it because the only pleadings of conspiracy concerning Shelston relate to its capacity as the authorised agent of the Novapharm parties (by whom Shelston was retained to provide services as a patent attorney). Shelston submits that, since the Novapharm parties are alleged to act in this matter only through Shelston as duly authorised agent, a claim of conspiracy cannot exist as between the corporation and an entity or person who is alleged to have done no more than act as that corporation's duly authorised agent. 17 The submissions advanced by Shelston raise a number of important respects in which Sheiman's pleadings, as presently framed in relation to the conspiracy allegation, are deficient. The deficiencies identified include: • the use of the expression "or any two or more of the respondents together" without identifying the respondents with greater clarity gives rise to uncertainty and lacks specificity, especially having regard to the very serious nature of the allegations; • the failure to set out or identify the terms of the alleged agreement to injure; • the failure to plead the primary facts on which the conclusion of the conspiracy is based (see Australian Wool Innovation [2005] FCA 290 at [68] ); • the absence of any express allegation of an intention to injure; • the uncertainty inherent in the repeated references to "and/or" (see, for example, [44] and [45] of the FASC); and • the objectionable nature of some of the claims for relief, in particular the claim which seeks an order that one of the Novapharm parties abandon or withdraw a patent application, without explaining how such an order relates to any pleaded causes of action or is available under the Patents Act 1990 (Cth). 18 I accept that each of these identified deficiencies exists in the FASC. Accordingly, while I do not think that the FASC is so deficient as to warrant summary dismissal of the proceeding, I am of the view that the particulars concerning the conspiracy claim should be struck out and pleaded afresh. 19 I note at this point that there is an application to remove the eighth respondent, Mr Ian Ernst, from the proceeding on the basis that he is merely an agent for the Novapharm parties, and should therefore not be a respondent in his own right. In my view this matter can be dealt with in the same way as I dealt with Shelston's submissions above, namely that the allegations as presently framed against Mr Ernst should be struck out and an opportunity afforded to Sheiman to reframe its claims against him.


case_text: Under s 31A of the Federal Court of Australia Act 1976 (Cth), the Court can give summary judgment when satisfied that the unsuccessful party has no reasonable prospect of successfully prosecuting or defending the proceeding (or part of the proceeding), with the consequence that the proceeding is thereby at an end. This is a lower threshold than was previously endorsed by the High Court in General Steel Industries Ltd v Commissioner for Railways [1964] HCA 69 ; (1964) 112 CLR 125. In addition, O 11 r 16 of the Federal Court Rules provides that a pleading may be struck out in whole or part where it discloses no reasonable cause of action, has a tendency to cause prejudice, embarrassment or delay, or is otherwise an abuse of process. If the Court accepts for the purpose of the application that the pleaded facts are established but finds that they do not contain the elements of the asserted cause of action, the Court may receive evidence to determine whether a genuine triable issue exists. 6 In order to establish liability on the ground of conspiracy by unlawful means, it is necessary to show that the alleged conspirators agreed to do an act which is independently unlawful apart from the conspiracy itself or to use unlawful means to attain their object. The expression "unlawful act" for the purposes of the tort includes crimes, torts, and breaches of statutory provisions. Frequently, conspiracy claims have arisen in the context of industrial action. In the present case there is an allegation that certain acts (referred to in [39] of the FASC) were unlawful because they constituted conduct which was false and misleading under the Patents Act 1990 (Cth) and the Criminal Code Act 1995 (Cth), or which breached the Corporations Act 2001 (Cth) or the Australian Securities and Investments Commission Act 2001 (Cth).


case_title: Jodast Pty Ltd v A& J Blattner Pty Ltd (1991) 104 ALR 248

case_text: In relation to claims for security, the Court observed in Jodast Pty Ltd v A & J Blattner Pty Ltd (1991) 104 ALR 248 that it is not appropriate for the Court to embark on an investigation of prospects of success in a proceeding at a very early stage and even less so where substantial evidence has been filed. 27 In my view, having regard to the complexity and serious nature of the allegations made in the FASC, the long period over which the dispute has run and the number of parties involved, the hearing of the present case is likely to be lengthy and the process of discovery and other preliminary steps is likely to be extensive. In these circumstances, I consider that there should be an order for security for costs in the sum of $50,000 in respect of the Novapharm parties and additional security for costs in the sum of $50,000 in respect of Shelston. In fixing these figures, I have taken into account the evidence before me as to the way in which those amounts were selected and I consider them to be reasonable and conservative. 28 I refuse the application for summary judgment made by Shelston. I strike out the FASC in relation to the conspiracy and trade practices claims. I grant liberty to Sheiman to re-plead within 28 days from the date of these reasons. I order Sheiman to pay the costs of the strike out application and the application for security for costs, and I order Shelston to pay the costs in relation to its unsuccessful application for summary judgment. I order that the applicants pay the costs thrown away as the result of amendments to the Statement of Claim and Amended Statement of Claim. Finally, I order that Sheiman provide security for costs in the amount of $50,000 in respect of the Novapharm parties and security for costs in the amount of $50,000 in respect of Shelston. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 28 May 2008 Counsel for the Applicants: Ms G. Preston Solicitor for the Applicants: Leitch Hasson and Dent Counsel for the First to Eighth Respondents: Mr J. Cooke Solicitor for the First to Eighth Respondents: Spruson & Ferguson Lawyers Counsel for the Ninth Respondent: Ms K. Howard SC and Mr M. Darke Solicitor for the Ninth Respondent: Shelston IP Lawyers Date of Hearing: 24 April 2008 Date of Judgment: 28 May 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/770.html


case_title: O'Brien v Dawson (1941) 41 SR(NSW) 295

case_text: In support of this submission Shelston refers to the observations of Jordan CJ in O'Brien v Dawson (1941) 41 SR(NSW) 295 at 307-308, where his Honour said: 'The next question is whether, if an ordinary limited liability company is a party to a contract, and its directors acting as such, and in the course of conducting the company's business at a Board meeting, resolve that the company shall refuse to perform a contract to which it is a party, the directors knowing that the refusal cannot be legally justified, and effect is given to this resolution, the directors concerned are guilty of the tort and presumably also of the crime of conspiracy. I am of opinion that in such a case it is entirely artificial to speak of the directors as "procuring" the company to break its contract in the sense in which the word is used in the Lumley v. Gye ... type of case. An incorporated company is a figment of the law. It is incapable of acting except through agents. Its directors are persons who have been authorised by the constituent members of the corporation to cause acts to be done on its behalf. They are its agents who have power to control its acts. It cannot act at all except through them or through some other authorised agents. They are not in the position of outsiders who are influencing the independent volition of a contracting party who is capable of exercising volition for himself.'


case_text: In Root Quality Pty Ltd v Root Control Technologies Pty Ltd [2000] FCA 980 ; (2000) 177 ALR 231 , Finkelstein J, after a detailed consideration of the relevant authorities, said at 263: 'In the face of these authorities it would be quite wrong for me not to apply Said v Butt. Presently, that case represents the law in this country and I will follow it. I should say that even if Said v Butt were not the authority in Australia I should still be inclined to apply this case because it appears to me to be good law.'


case_title: Said v Butt [1920] 3 KB 497

case_text: His Honour applied the principles expressed by McCardie J in Said v Butt [1920] 3 KB 497 at 505-506, where his Lordship said: 'But the servant who causes a breach of his master's contract with a third person seems to stand in a wholly different position. He is not a stranger. He is the alter ego of his master. His acts are in law the acts of his employer. In such a case it is the master himself, by his agent, breaking the contract he has made, and in my view an action against the agent under the Lunley v Gye ... principle must therefore fail, just as it would fail if brought against the master himself for wrongfully procuring a breach of his own contract.' 13 In Root Quality Pty Ltd v Root Control Technologies Pty Ltd [2000] FCA 980 ; (2000) 177 ALR 231 , Finkelstein J, after a detailed consideration of the relevant authorities, said at 263: 'In the face of these authorities it would be quite wrong for me not to apply Said v Butt. Presently, that case represents the law in this country and I will follow it. I should say that even if Said v Butt were not the authority in Australia I should still be inclined to apply this case because it appears to me to be good law.'


case_text: To succeed in a cause of action for conspiracy, it is necessary not only to allege an independently unlawful act, but also to allege an intention to cause injury to the applicant. Establishing the mere existence of a conspiracy is insufficient without the associated intention to injure. Where the alleged conspiracy involves unlawful means or acts, then it is sufficient if only one of several of the purposes of the conspiracy was to injure the aggrieved party. It is not necessary to show that the purpose was the sole or predominant purpose of the conspiracy: see Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637.


case_text: In Schneider Electric (Australia) Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 2 ; (2003) 127 FCR 170 at [57] Merkel J (with whom Black CJ and Sackville J relevantly agreed) accepted that the parity principle applies to pecuniary penalties imposed under s 76 of the TPA. His Honour referred to two earlier decisions of the Full Court in support of that proposition, namely NW Frozen Foods at 295, and Australian Competition and Consumer Commission v Ithaca Iceworks Pty Ltd (2002) ATPR |P41-851 at 44,539. See also Australian Competition and Consumer Commission v SIP Australia Pty Limited (2003) ATPR |P41-937 at [57] [58] per Goldberg J; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 4 ) (2006) ATPR |P42-101 at [71] [74] per Goldberg J; and Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No 3) [2007] FCA 144 at [11] per Tracey J.


case_text: It is also worth noting that the fact that a company has ceased trading and has no assets are not circumstances which ought to prevent the imposition of a penalty: Australian Competition and Consumer Commission v Commercial and General Publications Pty Ltd (No 2) (2002) ATPR |P41-905 at 45,441 per Heerey J. As O'Loughlin J stated in Australian Competition and Consumer Commission v The Vales Wine Company Pty Ltd (1996) ATPR |P41-528 at 42,776: "Even though [the penalties] may not be recovered, they will serve as a warning throughout the wine industry and elsewhere of the attitude of the Court to offences of this nature."


case_title: Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No 3) [2007] FCA 144


case_title: Australian Competition and Consumer Commission v Ithaca Iceworks Pty Ltd (2002) ATPR |P41-851


case_title: Australian Competition and Consumer Commission v SIP Australia Pty Limited (2003) ATPR |P41-937


case_title: Australian Competition and Consumer Commission v The Vales Wine Company Pty Ltd (1996) ATPR |P41-528


case_text: The pecuniary penalties that are sought, and agreed, are for the most part well within what I would regard as the "permissible range". Cartel conduct can take many different forms. On the one hand, it may be so grave as to warrant massive pecuniary penalties on the scale of those recently imposed by Heerey J in Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd (No 3) [2007] FCA 1617. 126 Cartel behaviour of the kind with which Heerey J was concerned can, as his Honour noted (at [306]) be extremely damaging to the prosperity of a free market economy. Often the profits to be made can be immense, and the risk of detection slight. That explains, in part, why the legislature has progressively increased the maximum penalties available in relation to this type of conduct. 127 Heerey J went on to observe (at [309]) that many countries with free market economies have enacted laws which make cartel conduct by individuals subject to criminal sanctions, including imprisonment. I note that in April 2003 the Dawson Committee recommended the introduction of criminal sanctions for serious cartel behaviour. I also note that on 2 February 2005 the Treasurer announced proposals for the criminalisation of serious cartel conduct. He stated that the maximum penalties for the new cartel offence would be a term of imprisonment of five years and a fine of $220,000 for individuals, and a fine for corporations that would be the greater of $10 million or three times the value of the benefit from the cartel. Where the value could not be determined the fine would be 10% of annual turnover. 128 Although not all cartel conduct should be viewed as warranting the imposition of criminal sanctions, including imprisonment, plainly that option should be available in relation to serious cases of such conduct. See generally B Fisse, "The Cartel Offence: Dishonesty?" (2007) 35 Australian Business Law Review 235 at 236. I interpolate that in the event such conduct is criminalised in Australia, problems may arise in formulating a cartel offence in terms that would be comprehensible to ordinary jurors. Section 45 is complex enough. The idea, which has been mooted, of simply adding the notion of "dishonesty" to what is already a daunting provision may be counterproductive. As Fisse notes, no country other than the United Kingdom (the Enterprise Act 2002 (UK)) has made dishonesty an element of a cartel offence, and perhaps for good reason. 129 It ought to be possible to define serious cartel conduct in relatively simply terms. Fisse (at 237) makes several useful suggestions as to how this might be done. Whatever else might be said, in appropriate cases imprisonment should be available as a sentencing option. Pecuniary penalties may be seen as simply part of the price of doing business.


case_text: In Lowe v The Queen [1984] HCA 46 ; (1984) 154 CLR 606 Mason J, as his Honour then was, underlined the importance of the parity principle. His Honour said (at 610 611): "Just as consistency in punishment -- a reflection of the notion of equal justice -- is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community." 146 In Postiglione v The Queen [1997] HCA 26 ; (1997) 189 CLR 295 the principle was further explained. Dawson and Gaudron JJ stated (at 301): "The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options." (Footnotes omitted.)


case_text: The real question is whether the pecuniary penalties which are now sought, and which have been agreed by the respondents, should be approved. In answering that question it must be emphasised that, in the final analysis, it is for the Court, and not the parties, to determine the amount of any pecuniary penalty. The Court is not to be regarded as a "rubber stamp". See generally NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285; and Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd (2004) ATPR |P41-993.


case_text: The real question is whether the pecuniary penalties which are now sought, and which have been agreed by the respondents, should be approved. In answering that question it must be emphasised that, in the final analysis, it is for the Court, and not the parties, to determine the amount of any pecuniary penalty. The Court is not to be regarded as a "rubber stamp". See generally NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285; and Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd (2004) ATPR |P41-993. 144 In Schneider Electric (Australia) Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 2 ; (2003) 127 FCR 170 at [57] Merkel J (with whom Black CJ and Sackville J relevantly agreed) accepted that the parity principle applies to pecuniary penalties imposed under s 76 of the TPA. His Honour referred to two earlier decisions of the Full Court in support of that proposition, namely NW Frozen Foods at 295, and Australian Competition and Consumer Commission v Ithaca Iceworks Pty Ltd (2002) ATPR |P41-851 at 44,539. See also Australian Competition and Consumer Commission v SIP Australia Pty Limited (2003) ATPR |P41-937 at [57] [58] per Goldberg J; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 4 ) (2006) ATPR |P42-101 at [71] [74] per Goldberg J; and Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No 3) [2007] FCA 144 at [11] per Tracey J.


case_text: In Postiglione v The Queen [1997] HCA 26 ; (1997) 189 CLR 295 the principle was further explained. Dawson and Gaudron JJ stated (at 301): "The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options." (Footnotes omitted.)