case_text: In Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [76] French J said: 'The injunction to judicial comity does not merely advance mutual politeness as between judges of the same or co-ordinate jurisdictions. It tends also to uphold the authority of the courts and confidence in the law by the value it places upon consistency in judicial decision-making and mutual respect between judges. And where questions of law, and statutory construction, are concerned the proposition that a judge who has taken one view of the law or a statute is 'clearly wrong' is one not lightly to be advanced having regard to the choices that so often confront the courts particularly in the area of statutory construction. Indeed, where a serious doubt arises on the part of one judge, about the correctness of the law as stated by another, in a matter of importance, it may be desirable for a case to be stated to the Full Court for early resolution of the question in contention.' 51 In my view, there is little to add to the observations of his Honour in Hicks . Similar observations have been made in many other Federal Court cases including La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204 (per Burchett J), Bank of Western Australia v Federal Commissioner of Taxation (1994) 55 FCR 233 at 255 (per Lindgren J), Nezovic v MIMIA [2003] FCA 1263 ; (2003) 133 FCR 190 at 206 (per French J), and Koara People v State of Western Australia [2006] FCA 66 at par 29 (per Nicholson J). The principle of comity is applied in other Australian courts in respect of decisions of single judges: I note, by way of illustration, Durovic trading as Shell Tornik Roadhouse v Judge , unreported Supreme Court of New South Wales, Rolfe J, 25 February 1997; Zotovic v Dobel Boat Hire Pty Ltd (1985) 62 ACTR 29 at 32 (per Blackburn CJ); Anteden Pty Ltd v Glen Eira City Council [2000] VSC 366 par 25 (per Balmford J); McDermott Projects Pty Ltd v Chadwell Pty Ltd (2002) 2 QdR 363 at 365 (per Holmes J); and Swetnam Brothers Pty Ltd v Grundy , unreported Supreme Court of Tasmania, Wright J, 14 March 1997. The principle of judicial comity as between Courts of equal status is long-standing in the United Kingdom; the principle is discussed, with many case citations, in Halsbury's Law of England , 4 th Edition Reissue vol 37 at par 1244. I also note similar comments in A MacAdam and J Pyke, Judicial Reasoning and the Doctrine of Precedent in Australia (Butterworths, Sydney, 1998) at 179-180.


case_outcome: cited

case_text: Her Honour agreed with the contention of Essenbourne Pty Ltd that the definition of 'fringe benefit' required reference to a particular employee in connection with the benefit said to be provided. This requirement of the definition was not, in Kiefel J's view, satisfied in Essenbourne . Given the nature of the contest before me, it is important and relevant to set out her Honour's reasoning on this point: '[54] In my view Essenbourne is correct in its contention that the definition of "fringe benefit" requires reference to a particular employee in connexion with the benefit said to have been provided. This is reflected in the references to a benefit being "provided to the employee or to an associate of the employee" and to the benefit being provided "in respect of the employment of the employee" (emphasis added). The latter reference, in particular, can only be to a particular person's employment. The Commissioner submitted that the reference to "an employee" in the definition should be read as "employees", in the case of certain benefits, as s 23 Acts Interpretation Act 1901 (Cth) would permit. In my view the Assessment Act requires that the particular employee be identified in connexion with the benefit. It is their employment which, after all, provides the necessary "link" to the benefit: see J & G Knowles & Associates Pty Ltd v FC of T [2000] FCA 196 ; (2000) 96 FCR 402. The definition does not admit of a reference to a number of employees in connexion with the benefit, the subject of the assessment. ... [56] The link between the benefit and the employment of the employee is required to be sufficient or material: J & G Knowles, 409, 410. It arises because of the words 'in respect of the employment'. A mere causal link with the employment of the employee will not be sufficient. Essenbourne submits that, at least until the issue of Bonus Units, there is not a sufficient connexion with the brothers' employment. It seems to me that the substantial link at this point is as between the payment and the deduction sought by Essenbourne. It is not necessary for me to further consider the point for, in my view, the payment by Essenbourne to the trustee does not qualify as a fringe benefit as it is defined.' 56 The words 'in respect of the employment' in the context of the definition of 'fringe benefit' were explained by the Full Court of the Federal Court in J & G Knowles and Associates Pty Ltd v Commissioner of Taxation [2000] FCA 196 ; (2000) 96 FCR 402. Their Honours pointed out that what needs to be established is whether there is a sufficient or material causal connection or relationship between the benefit and the employment. Considering in individual circumstances whether the benefit is a product or incident of the employment is useful if it is not, then the benefit is likely to be extraneous to the employment and not bear fringe benefits tax, notwithstanding that the employment might have been a causal factor (at 410). 57 In the case before me there is clearly some connection between a beneficiary of the CSP receiving the ABC Public shares, and a beneficiary being an employee of an RMC who has satisfied nominated criteria. Further, on the facts of this case the trustee of the CSP appears to be an associate of the employees as defined by s 159 FBTAA . Accordingly, the question in the case before me becomes: (a) whether employees are identified with sufficient particularity to come within the definition of 'fringe benefit' in s 136(1) FBTAA ; and if so, (b) whether there is a sufficient or material causal connection or relationship between the benefit and the employment of the employees to satisfy the definition of 'fringe benefit' in s 136(1) FBTAA . 58 If, as the applicant contends, the employees are not identified with sufficient particularity, in my view the question of the benefit being 'in respect of' their employment does not arise. As Kiefel J pointed out in Essenbourne , 'It is their employment which, after all, provides the necessary "link" to the benefit: see J & G Knowles & Associates Pty Ltd v Commissioner of Taxation [2000] FCA 196 ; (2000) 96 FCR 402.'


case_text: In my view, there is little to add to the observations of his Honour in Hicks . Similar observations have been made in many other Federal Court cases including La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204 (per Burchett J), Bank of Western Australia v Federal Commissioner of Taxation (1994) 55 FCR 233 at 255 (per Lindgren J), Nezovic v MIMIA [2003] FCA 1263 ; (2003) 133 FCR 190 at 206 (per French J), and Koara People v State of Western Australia [2006] FCA 66 at par 29 (per Nicholson J). The principle of comity is applied in other Australian courts in respect of decisions of single judges: I note, by way of illustration, Durovic trading as Shell Tornik Roadhouse v Judge , unreported Supreme Court of New South Wales, Rolfe J, 25 February 1997; Zotovic v Dobel Boat Hire Pty Ltd (1985) 62 ACTR 29 at 32 (per Blackburn CJ); Anteden Pty Ltd v Glen Eira City Council [2000] VSC 366 par 25 (per Balmford J); McDermott Projects Pty Ltd v Chadwell Pty Ltd (2002) 2 QdR 363 at 365 (per Holmes J); and Swetnam Brothers Pty Ltd v Grundy , unreported Supreme Court of Tasmania, Wright J, 14 March 1997. The principle of judicial comity as between Courts of equal status is long-standing in the United Kingdom; the principle is discussed, with many case citations, in Halsbury's Law of England , 4 th Edition Reissue vol 37 at par 1244. I also note similar comments in A MacAdam and J Pyke, Judicial Reasoning and the Doctrine of Precedent in Australia (Butterworths, Sydney, 1998) at 179-180.


case_title: La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201


case_title: McDermott Projects Pty Ltd v Chadwell Pty Ltd (2002) 2 QdR 363


case_outcome: followed

case_text: I have referred to four cases in which this interpretation has been applied. These cases are: 1. Essenbourne Pty Ltd v Commissioner of Taxation [2002] FCA 1577 ; (2002) ATC 5201; (2002) 51 ATR 629 (a decision of Kiefel J); 2. Walstern Pty Ltd v Commissioner of Taxation [2003] FCA 1428 ; (2003) 138 FCR 1; (2003) 54 ATR 423 (a decision of Hill J); 3. Spotlight Stores Pty Ltd v Commissioner of Taxation [2004] FCA 650 ; (2004) 55 ATR 745; (2004) ATC 4674 (a decision of Merkel J); and 4. Caelli Constructions (Vic) Pty Ltd v Commissioner of Taxation [2005] FCA 1467 ; [2005] 147 FCR 449; (2005) 60 ATR 542; (2005) ATC 4938 (a decision of Kenny J). 45 In each of the Federal Court decisions Walstern , Spotlight Stores and Caelli Constructions , the learned judge followed and applied the principles decided by Kiefel J in Essenbourne . 47 Similarly, in Spotlight Stores , Merkel J agreed with Kiefel J. His Honour said: '[121] In Essenbourne...Kiefel J concluded that the definition requires that for the benefit to be provided in respect of the employment of "the employee", a "particular employee" must be able to be identified in connection with the benefit. In Walstern...Hill J agreed with Kiefel J's view. In the present case, it is clear that when the benefit (that is, the $15 million contribution) was provided it was not provided, whether to "the employee" or to Spotlight Incentive as an "associate" of "the employee", in respect of the employment of any particular employee because the employees of Spotlight were not beneficiaries of the Incentive Trust at that time. The Commissioner contended that I should not follow Essenbourne or Walstern but I am not satisfied those decisions are clearly wrong and, accordingly, propose to follow them. It must follow that Spotlight is entitled to succeed in its appeal in relation to its FBT objection.' 49 As I have already noted, in Walstern (at FCA par 87 per Hill J) and Caelli Constructions (at FCA par 61 per Kenny J) their Honours stated their views that the decision of Kiefel J in Essenbourne was correct, and stated the law. Merkel J in Spotlight Stores did not need to discuss the Essenbourne case in great detail, however his Honour observed that he proposed to follow Essenbourne and Walstern as, notwithstanding the submissions of the Commissioner in Spotlight Stores , his Honour was not satisfied that those decisions were clearly wrong (at FCA par 121). Hill J in Walstern had also indicated that, as a matter of comity, he would have followed the decision of Kiefel J in Essenbourne unless he had formed the view either it was distinguishable or that the decision was clearly wrong, neither of which was the case (at par 87). 53 Notwithstanding powerful submissions by the Commissioner, I am not satisfied that the principle articulated by Kiefel J in Essenbourne is clearly wrong. With respect, there is little to add to the reasons provided by Kiefel J in Essenbourne or Hill J in Walstern which have been repeated in this judgment. I agree with the four judges in Essenbourne, Walstern, Spotlight Stores and Caelli Constructions that the identification of particular employees is a requisite element in the application of the definition of 'fringe benefit' under the FBTAA . Like the judges in Walstern , Spotlight Stores and Caelli Constructions I propose to follow the Essenbourne decision and, to the extent it is applicable to the facts of the case before me, apply it. 64 The circumstances before me are in some ways comparable with those in Spotlight Stores . There Merkel J found that when the $15 million contribution which was the benefit was provided, it was not provided, either to the employee or to the trustee as an associate of the employee, in respect of the employment of any particular employee because the employees of Spotlight were not beneficiaries of the Incentive Trust at that time. Although the fringe benefits tax assessment issue did not require full exploration by his Honour, relevant facts in that case were: • the employer contributed sums to a fund established to reward employees; • the frequency and amount of the contributions would be determined by the employer in its absolute discretion; • a separate trustee was incorporated, the directors of which were also directors of the employer; • the discretion of the trustee was absolute and uncontrolled, although in making determinations as to amounts to be paid as benefits, it was required to consult with the employer, and it could have regard to the criteria in clause 10 of the trust deed; and • beneficiaries were defined as 'persons who immediately prior to the date on which an amount is proposed to be paid by the Trustee...has been or is an Employee of [Spotlight] and, in the opinion of the Trustee, fulfils the criteria set out in Clause 10'. Clause 10 criteria included the contribution made by the beneficiary to the revenues or profits of the employer and the business or operation of the employer, the extent to which the beneficiary had attracted new clients to the employer, the length of service with the employer, and the seniority of the beneficiary. 65 Similar facts existed in the case before me, although again I note that the contributor of the capital to the trust fund was not the employer RMCs, but ABC Public, and the trustee in the case before me was an independent professional trustee.


case_title: Swetnam Brothers Pty Ltd v Grundy , unreported Supreme Court of Tasmania, Wright J, 14 March 1997


case_text: I have referred to four cases in which this interpretation has been applied. These cases are: 1. Essenbourne Pty Ltd v Commissioner of Taxation [2002] FCA 1577 ; (2002) ATC 5201; (2002) 51 ATR 629 (a decision of Kiefel J); 2. Walstern Pty Ltd v Commissioner of Taxation [2003] FCA 1428 ; (2003) 138 FCR 1; (2003) 54 ATR 423 (a decision of Hill J); 3. Spotlight Stores Pty Ltd v Commissioner of Taxation [2004] FCA 650 ; (2004) 55 ATR 745; (2004) ATC 4674 (a decision of Merkel J); and 4. Caelli Constructions (Vic) Pty Ltd v Commissioner of Taxation [2005] FCA 1467 ; [2005] 147 FCR 449; (2005) 60 ATR 542; (2005) ATC 4938 (a decision of Kenny J). 45 In each of the Federal Court decisions Walstern , Spotlight Stores and Caelli Constructions , the learned judge followed and applied the principles decided by Kiefel J in Essenbourne . 46 In Walstern , Hill J decisively and unambiguously agreed with Kiefel J in Essenbourne on this issue. His Honour said: '(at 22) As I have already noted, I would, as a matter of comity, follow the decision of Kiefel J in Essenbourne unless the case was either distinguishable or I was of the view that the decision was clearly wrong. On this point the case is not distinguishable. Further, far from being of the view that her Honour was clearly wrong, I am of the view that her Honour was clearly right. The definition of "fringe benefit" in s 136(1) of the FBTA Act makes clear the importance of identification of the employee. The benefit itself is one which is said to be "in relation to an employee". The benefit is required to have been provided to the employee (or associate of the employee) and is required to be in respect of the employment of the employee. The definition of "property fringe benefit" (if that is the kind of benefit relied upon) requires relevantly provision of property to a particular person there referred to as "the recipient". The valuation formula relevantly here requires that there be a benefit provided "to a person" in respect of the employment of an employee. Any contribution made by an individual employee is taken into account in determining the taxable value of the benefit. Although not relevant in the present case, the exclusion of a benefit otherwise deductible to an employee contemplates taking into account the specific circumstances of the employee himself or herself. It is not surprising that the legislation requires a link between the benefit and a particular employee (or associate of a particular employee) because historically the purpose of the Fringe Benefits Tax Act 1986 (Cth) is to provide a specific means of taxing benefits which are a substitute for income to an employee and in respect of which the provisions of the 1936 Act and particular s 26(e) were thought to be defective. Income tax is a tax upon the taxable income of a particular employee. While fringe benefits tax is a tax for which an employer is made liable and is payable at the maximum personal income tax rate, the theory of fringe benefits tax legislation is that it operates as a final withholding tax payable by the employer on amounts that essentially are or would be income of the employee...' 49 As I have already noted, in Walstern (at FCA par 87 per Hill J) and Caelli Constructions (at FCA par 61 per Kenny J) their Honours stated their views that the decision of Kiefel J in Essenbourne was correct, and stated the law. Merkel J in Spotlight Stores did not need to discuss the Essenbourne case in great detail, however his Honour observed that he proposed to follow Essenbourne and Walstern as, notwithstanding the submissions of the Commissioner in Spotlight Stores , his Honour was not satisfied that those decisions were clearly wrong (at FCA par 121). Hill J in Walstern had also indicated that, as a matter of comity, he would have followed the decision of Kiefel J in Essenbourne unless he had formed the view either it was distinguishable or that the decision was clearly wrong, neither of which was the case (at par 87). 53 Notwithstanding powerful submissions by the Commissioner, I am not satisfied that the principle articulated by Kiefel J in Essenbourne is clearly wrong. With respect, there is little to add to the reasons provided by Kiefel J in Essenbourne or Hill J in Walstern which have been repeated in this judgment. I agree with the four judges in Essenbourne, Walstern, Spotlight Stores and Caelli Constructions that the identification of particular employees is a requisite element in the application of the definition of 'fringe benefit' under the FBTAA . Like the judges in Walstern , Spotlight Stores and Caelli Constructions I propose to follow the Essenbourne decision and, to the extent it is applicable to the facts of the case before me, apply it. 66 On the other hand, the facts of the case before me may be contrasted with those in Walstern and Caelli Constructions , where the Courts found against the respective applicants. In Walstern , Hill J found that a fringe benefit had been provided to each of two employees at the time allocation was made by the trustee of the contribution made by the employer, in circumstances where: • the trustee was clearly an 'arranger' within the meaning of par (e) of the definition of 'fringe benefit'; and • the arrangement in question was one which involved the employer making the contribution on the understanding that all relevant steps would be taken culminating in the trustee ultimately allocating the employer's contribution equally to each of the two employees. 67 In this respect, as his Honour noted, the two employees who were the beneficiaries under the trust in Walstern were clearly identified by the arrangement in place. The arrangement was for their benefit. This may be contrasted with the circumstances in the case before me, where, despite guidelines provided in the CSP Deed, several steps involving satisfaction of criteria and the exercise by the trustee of its discretion required completion, before a selection of potential beneficiaries could be made from the large group of existing (and future) employees of the RMCs.


case_title: Zotovic v Dobel Boat Hire Pty Ltd (1985) 62 ACTR 29


case_title: Australian Competition and Consumer Commission v Econovite Pty Ltd [2003] ATPR 41-959

case_text: In my view, it is appropriate for there to be orders in accordance with the minute of proposed orders. The orders are within power and otherwise appropriate: ACCC v Target Australia Pty Ltd [2001] ATPR 41-840 at [24] and ACCC v Econovite Pty Ltd [2003] ATPR 41-959 at [12]. Moreover, in the circumstances, it is in the public interest that these proceedings be settled: see Kiefel J in NW Frozen Foods Pty Ltd v ACCC (1996) 71 FCR 285 at 291.


case_title: Australian Competition and Consumer Commission v Target Australia Pty Ltd [2001] ATPR 41-840


case_title: Australian Securities and Investment Commission v Rich (No 2) (2004) 22 ACLC 1232

case_text: As a general principle, a court does not make declarations on matters relating to public rights by consent or on admissions, but only if it is satisfied by evidence: ASIC v Rich (No 2) (2004) 22 ACLC 1232 at [10]; Williams v Powell [1894] WN (Eng) 141; Gramophone Co Ltd v Magazine Holder Co (1911) 28 RPC 221 at 225 227; Termijtelen v Van Arkel [1974] 1 NSWLR 525; Wallersteiner v Moir [1974] 3 All ER 217; Metzger v Department of Health and Social Security [1977] 3 All ER 444 at 451; BMI Ltd v Federated Clerks Union of Australia (NSW) Branch (1983) 51 ALR 401; Young P W, Declaratory Orders (2nd ed, 1984) [601].


case_title: BMI Ltd v Federated Clerks Union of Australia (NSW) Branch (1983) 51 ALR 401


case_text: I have carefully reviewed the Advertising Material several times and have sought to assess the likely effect of each on potential customers. In reviewing the Advertising Material I had at the forefront the caution from Lindgren J in Gillette Australia Pty Ltd v Energizer Australia Pty Ltd (2002) 193 ALR 629 at [47] regarding television advertising. Of course, similar caution must be adopted when reviewing the Advertising Material. 9 I accept that the following Representations were conveyed in the following Advertising Material: Advertising Material Episode Representations Conveyed The Age First to Sixth Advertisements 23 June 2007, 7, 14, 28 July 2007 4 and 11 August 2007 7 Seat Representation Price Representation 7 Seat Price Representation The Age Seventh Advertisement (18 August 2007) 7 Seat Representation 7 Seat Price Representation Sydney Morning Herald Eighth Advertisement (30 June 1 July 2007) 7 Seat Representation Price Representation 7 Seat Price Representation Sydney Morning Herald Ninth and Tenth Advertisements (7-8 July 2007 and 21-22 July 2007) 7 Seat Series Representation Audi Website 7 Seat Series Representation 2007 Specifications Brochure August 2007 7 Seat Series Representation 2006 Specifications Brochure August 2006 7 Seat Series Representation 10 Next, the ACCC submits that the Representations were false, misleading or deceptive on the basis that: (1) the Audi Q7 Series motor vehicles including the Audi Q7 3.6 SE have 5 seats as a standard feature; (2) 7 seats is an option available in the Audi Q7 Series motor vehicles including the Audi Q7 3.6 SE; (3) the Audi Q7 3.6 SE is not available for purchase as a 7 seat vehicle at or from $79,900; (4) the Audi Q7 3.6 SE is not available for purchase at or from $79,900; (5) there is a fee or charge to be paid in addition to the price of $79,900 to purchase an Audi Q7 3.6 SE vehicle for mandatory components including dealer delivery and statutory charges; and (6) there is a fee or charge to be paid in addition to the price of $79,900 for the 2 optional extra seats (in order to have 7 seats).


case_title: Gramophone Co Ltd v Magazine Holder Co (1911) 28 RPC 221


case_title: Metzger v Department of Health and Social Security [1977] 3 All ER 444


case_title: NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285


case_title: Termijtelen v Van Arkel [1974] 1 NSWLR 525


case_title: Wallersteiner v Moir [1974] 3 All ER 217


case_title: Williams v Powell [1894] WN (Eng) 141


case_title: BRGAB of 2007 v MIAC [2007] FMCA 823

case_text: This is an appeal from a decision of Federal Magistrate Jarrett ( BRGAB of 2007 v MIAC [2007] FMCA 823) in relation to the appellant's application for a Protection (Class XA) Visa ('a protection visa'). Jarrett FM dismissed the application. Subsequently, a Judge of this Court made an order under Order 80 rule 4(1) of the Federal Court Rules ('the Order 80') that the appellant be provided pro bono with legal advice as to her prospects of success in this appeal. The Order 80 stated that, if there were prospects of success, counsel could continue to act generally for the appellant; otherwise the assistance would end. 2 The matter was called on this morning and the appellant has made two applications. The first is an application that I disqualify myself from hearing the matter. The second is an application for adjournment. 3 As to the application that I disqualify myself, the appellant raised four bases.


case_outcome: applied

case_text: the Court's discretion is broad, it is not unfettered, and must be exercised on the evidence and having regard to the objects of the Act, principally, the protection of the interests of policyholders and prospective policyholders (s 3(1) of the Act). See Colonial Portfolio Services Ltd v Australian Prudential Regulation Authority (2000) 11 ANZ Ins Cas 90-103; [1999] FCA 1779 at [4] and [29]. There are two aspects to the protection of the interests of policyholders: 1. First, there are the procedural aspects in which the Court is concerned to see that the process undertaken has been properly executed in accordance with the requirements of the Act and the Life Insurance Regulations 1995 (Cth) ('the Regulations'); and 2. Second, there is a substantive aspect in which the Court is concerned to see that the Scheme will not be prejudicial to the interests of policyholders and that policyholders are properly safeguarded, i.e., there is not likely to be any material detriment to policyholders affected by the Scheme (see NuLife Insurance Ltd v Norwich Union Life Australia Ltd [2005] FCA 1635 at [24] per Emmett J; MLC Lifetime Company Ltd & Anor (No. 2) [2006] FCA 1367 at [5] per Bennett J; Colonial Portfolio at [25] per Mathews J)


case_text: are two aspects to the protection of the interests of policyholders: 1. First, there are the procedural aspects in which the Court is concerned to see that the process undertaken has been properly executed in accordance with the requirements of the Act and the Life Insurance Regulations 1995 (Cth) ('the Regulations'); and 2. Second, there is a substantive aspect in which the Court is concerned to see that the Scheme will not be prejudicial to the interests of policyholders and that policyholders are properly safeguarded, i.e., there is not likely to be any material detriment to policyholders affected by the Scheme (see NuLife Insurance Ltd v Norwich Union Life Australia Ltd [2005] FCA 1635 at [24] per Emmett J; MLC Lifetime Company Ltd & Anor (No. 2) [2006] FCA 1367 at [5] per Bennett J; Colonial Portfolio at [25] per Mathews J)


case_title: MLC Lifetime Company Ltd & Anor (No. 2) [2006] FCA 1367


case_text: The effect of s 85A was discussed by Lee J in Ward v Western Australia [1999] FCA 580 ; (1999) 93 FCR 305. Lee J's observations were picked up by the Full Court of the Federal Court in De Rose v State of South Australia (No 2) [2005] FCAFC 137. The Court consisted of Wilcox, Sackville and Merkel JJ. Their Honours at par 8 said: 'In Ward v Western Australia [1999] FCA 580 ; (1999) 93 FCR 305, Lee J made the following points about s 85A: • Section 85A(1) is intended to remove any ground for anticipation or expectation that unless cause is shown for another order, costs will follow the event (at [33]). • Nonetheless, s 85A acknowledges that the Court has an overriding discretion as to costs and does not expressly impose a limit on the scope of the discretion (at [31]-[32]). • There is no requirement that a threshold condition be met before the Court is empowered to make a costs order. It follows that the exercise of the discretion is not conditional upon a finding of fact or the formation of an opinion as to the occurrence of unreasonable conduct or the existence of special circumstances (at [35]). • Section 85A(2) of the NT Act puts beyond doubt the extent of the Court´s discretion in cases where a party acts unreasonably, but s 85A(2) does not control or limit the discretion available to the Court under s 85A(1) (at [36]-[37]). • The matters to be taken into account in making a costs order are left to the Court´s discretion, which must be exercised judicially. However, the starting point is that each party will bear their own costs unless the Court determines that it is appropriate in the circumstances to make an order for costs (at [34]) .' 13 The court has as general power to make orders for costs as Lee J's comments in Ward illustrate. There is a specific power where the court is satisfied of the matters referred to in subs 85A(2) of the Act. In my opinion those considerations do not apply. 14 Looking at the matter generally, in my judgment, this is not a case where it is appropriate to make any order as to costs. The consequence is that, pursuant to subs 85A(1) of the Act, each party to the Notice of Motion is to bear his or her own costs. 15 For the above reasons I give leave to Shane Coghill to discontinue the notice of motion filed on 8 February 2006, and note that, pursuant to s 85A of the Act, each party to that motion is to bear his or her own costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender J. Associate: Dated: 6 June 2006 Solicitor for the Applicant: Mr Michael Neal of Michael Neal Lawyers (respondent on notice of motion) There was no appearance for the first respondent. Mr Shane Coghill, the second respondent, applicant on the notice of motion, appeared in person Date of Hearing: 31 May 2006 Date of Judgment: 31 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/708.html


case_text: The effect of s 85A was discussed by Lee J in Ward v Western Australia [1999] FCA 580 ; (1999) 93 FCR 305. Lee J's observations were picked up by the Full Court of the Federal Court in De Rose v State of South Australia (No 2) [2005] FCAFC 137. The Court consisted of Wilcox, Sackville and Merkel JJ. Their Honours at par 8 said: 'In Ward v Western Australia [1999] FCA 580 ; (1999) 93 FCR 305, Lee J made the following points about s 85A: • Section 85A(1) is intended to remove any ground for anticipation or expectation that unless cause is shown for another order, costs will follow the event (at [33]). • Nonetheless, s 85A acknowledges that the Court has an overriding discretion as to costs and does not expressly impose a limit on the scope of the discretion (at [31]-[32]). • There is no requirement that a threshold condition be met before the Court is empowered to make a costs order. It follows that the exercise of the discretion is not conditional upon a finding of fact or the formation of an opinion as to the occurrence of unreasonable conduct or the existence of special circumstances (at [35]). • Section 85A(2) of the NT Act puts beyond doubt the extent of the Court´s discretion in cases where a party acts unreasonably, but s 85A(2) does not control or limit the discretion available to the Court under s 85A(1) (at [36]-[37]). • The matters to be taken into account in making a costs order are left to the Court´s discretion, which must be exercised judicially. However, the starting point is that each party will bear their own costs unless the Court determines that it is appropriate in the circumstances to make an order for costs (at [34]) .' 7 In this particular case, the submissions by Mr Neal on behalf of the Jagera People are: ' 5. Costs While there is no requirement for a threshold condition to be met before the Court is empowered to make a costs order in this matter, Jagera People argue that even if there was, it would have been surpassed by the conduct of Mr Coghill in: 1. Bringing the proceedings in the first place; 2. Failing to withdraw the Notice of Motion in a timely manner including following indirect discussions between Michael Neal of Michael Neal Lawyers and Paul Richards of counsel on behalf of Mr Coghill; 3. Failing to communicate with the Jagera People let alone attend the meeting to discuss this matter that was arranged by Jagera People; 4. Failing to respond to the fax of 23 May 2006 from Michael Neal Lawyers in a timely manner.' The reference to a fax of 23 May 2006 is a reference to a fax in which Mr Neal wrote to Mr Coghill, in which he said: '...I am instructed that as you are already aware that your application to strike out the claim has little if any prospects of success, and as you have not: 1. taken up the invitation of the Jagera People to attend a meeting, or 2. withdrawn the application, Jagera People regrettably must seek an order for costs against you if you lose the application .... In an endeavour to try and settle this matter as amicably as possible, I am also instructed that if your application is withdrawn by close of business on Wednesday, 24 May 2006, no order for costs will be sought. Jagera People ask again that you withdraw your application and do so straight away.' 8 Mr Coghill did not reply to the fax, but on 25 May filed the document headed, ' Notice of Discontinuance ', the terms of that document are set out in par 1 above. The offer contained in the fax is a little bit at odds with the application for costs now made, the basis of it being that the deadline imposed by the facsimile, namely Wednesday 24 May 2006, passed and there was no Notice of Discontinuance filed, or any communication by Mr Coghill with Mr Neal. 9 In the light of all the material, including the written submissions filed by Mr Coghill today, and observations put to the Court on behalf of Queensland South Land Council by Mr Colin Hardy concerning attempts to resolve matters of dispute involving claims, including the claim of the Jagera People, I am not satisfied that this Notice of Motion is a proceeding which has by any unreasonable act or omission caused another party to incur costs in connection with the institution or conduct of it. This is not a case where an unmeritorious claim has been progressed in circumstances where costs are caused to another party.


case_text: order to have the affidavit of Mr Watts sworn on 14 April 2009 (including the annexures to that affidavit) admitted into evidence, Mr Watts would need to show either that the evidentiary material set out in that affidavit comprised facts and matters which had arisen after the hearing or which were not known to him or could not have been ascertained by him by the exercise of reasonable diligence at the time the hearing took place on 10 December 2008 and that it is in the interests of justice that the material be admitted into evidence (see The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132 at [4] [8]; Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24] ; and Australian Securities and Investments Commission v Rich [2006] NSWSC 826 ; (2006) 235 ALR 587 ; (2006) 58 ACSR 414 at [18] ). One of the important considerations to be weighed in the interests of justice in the present case is the public interest in the finality of litigation.


case_title: Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22


case_title: The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132


case_text: It seems to me that this is a case which falls squarely within the principles stated by the New South Wales Court of Appeal in Braams Group Pty Limited v Miric [2002] NSWCA 417 ; (2002) 44 ACSR 124. It is sufficient to refer to what was said by Stein JA at [41]-[42], [51] and [61]. 20 For those reasons, the application will be dismissed. 21 I should point out that the originating process sought the injunctive relief as an interlocutory order, however, without objection by counsel for the Deputy Commissioner, Mr Johnson proceeded to seek the relief as final relief. However, as I have said, Nationwide has not made out a claim of abuse of process and I propose to dismiss the application. I order that the plaintiff pay the costs of the application. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 3 June 2008 Counsel for the Plaintiff: J T Johnson Solicitors for the Plaintiff: Sally Nash & Co Counsel for the Defendant: M L Brabazon Solicitors for the Defendant: Australian Taxation Office Legal Services Branch Date of Hearing: 16 May 2008 Date of Judgment: 16 May 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/824.html


case_outcome: referred to

case_text: Mr Johnson accepts that in light of the decision of the High Court in David Grant & Co Pty Limited (Receiver Appointed) v Westpac Banking Corporation (1995) 184 CLR 265 , it is necessary for him to establish to my satisfaction that the pursuit of a winding up application in the present circumstances would amount to an abuse of process within the principles stated in Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509.


case_title: Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509


case_text: The Tribunal had no obligation to detail to Mr Cook the shortcomings of his material. It was reasonable for the Tribunal to give him the opportunity of explaining and advancing his application at a phone directions hearing. In this respect, the case differs from Opitz v Repatriation Commission (1991) 29 FCR 50 where at 58 to 59, it was held that the applicant was denied an opportunity of putting further evidence to the Tribunal due to the unusual circumstance of his evidence by phone being interrupted by the advent of an earthquake.


case_text: The scheme of the legislative provisions is comprehensively set out in the decision of Finn J in Pradhan v Holmes [2001] FCA 1560 ; (2001) 125 FCR 280 at [5] - [61] . These paragraphs provide a sufficient description of the scheme for present purposes, and it is not necessary to repeat the details of the process here. In his discussion of the scheme, his Honour noted at [6] that it involves four tiers or steps: 'The first three relate to determining whether (inter alia) a medical practitioner has engaged in "inappropriate practice" in connection with the rendering or initiating of services for which a medicare benefit was available. The fourth tier or step involves the imposition of a sanction on a practitioner who has been found to have engaged in "inappropriate practice."' 9 'Inappropriate practice' is defined in s 82. In the case of a general practitioner, the test is whether the conduct of the general practitioner in connection with the rendering of services would be unacceptable to the general body of general practitioners: s 82(1)(a). 10 The first step involves the Commission's decision to make an investigative referral to the Director in relation to the conduct of an individual as to whether that person engaged in inappropriate practice in connection with the rendering or initiating of services: s 86(1). This stage contemplates that there has previously been a complaint or inquiry by the Commission into the conduct of the practitioner. The investigation must be sufficient to enable the Commission to form a view that the practitioner may have engaged in inappropriate practice. 20 In Pradhan v Holmes, Finn J usefully encapsulates at [49]-[61] by reference to the above provisions the detailed staged process provided to afford procedural fairness under the statute at each of the four levels of consideration. It is against these comprehensive statutory provisions that the application and submissions as to procedural fairness in the present case ought to be considered. 21 Dr Phan was the subject of Investigative Referral No. 190 made by the Commission on 29 June 2000. The Investigative Referral related to all services rendered or initiated in the period 1 January 1999 to 31 December 1999 (the relevant referral period in this case). During this period, Dr Phan rendered a total of 18, 165 services, including 17, 970 level B surgery consultations. 22 Adjudicative Referral No. 190 was made by the Director to the Committee on 29 March 2001, and the hearing took place before the Committee on 16-17 May, 2-3 August and 4 October 2001. 23 On 4 March 2004, emails were sent by the Committee Secretary, Ms Vanessa Goodspeed, to Professor Nicholls, seeking guidance in relation to the sampling methodology adopted by the Committee. This advice was provided by Professor Nicholls on 5 March 2004. 24 On 26 June 2004, the Committee made its draft report, with Dr Phan furnishing submissions to the Committee in relation to that report on 20 July 2004. The Committee considered these and made its final report on 28 October 2004.


case_text: It is common ground that failure to give procedural fairness can result in jurisdictional error in some cases. The Applicant refers to the principles set out in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 584-5 where it is said: 'The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. ... The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? ... In this respect the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations.' 37 In written submissions, the Applicant refers to the following principles: 'a. A person should have matters adverse to that person or that person's application put to that person for comment or evidence before an adverse decision is made (Kioa v West) [1985] HCA 81 ; (1985) 159 CLR 550). b. A decision-maker should not make a decision having had regard to undisclosed material being adverse information that was credible, relevant and significant to the decision to be made without first putting that material to the relevant person ( Kioa, ibid, at 629.3 per Brennan J; Re Refugee Review Tribunal, Ex party Aala [2000] HCA 57 ; (2000) 204 CLR 82; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57; and Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 76 ALJR 966). c. A decision-maker should bring to a person's attention the critical issue or factor on which the decision is likely to turn so that the person may have an opportunity to deal with it (eg: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 at [81] ). d. A decision-maker should not mislead a party as to the importance of a factor to the decision-maker (either actively or impliedly) ( Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57; Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 76 ALJR 966).'


case_text: In written submissions, the Applicant refers to the following principles: 'a. A person should have matters adverse to that person or that person's application put to that person for comment or evidence before an adverse decision is made (Kioa v West) [1985] HCA 81 ; (1985) 159 CLR 550). b. A decision-maker should not make a decision having had regard to undisclosed material being adverse information that was credible, relevant and significant to the decision to be made without first putting that material to the relevant person ( Kioa, ibid, at 629.3 per Brennan J; Re Refugee Review Tribunal, Ex party Aala [2000] HCA 57 ; (2000) 204 CLR 82; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57; and Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 76 ALJR 966). c. A decision-maker should bring to a person's attention the critical issue or factor on which the decision is likely to turn so that the person may have an opportunity to deal with it (eg: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 at [81] ). d. A decision-maker should not mislead a party as to the importance of a factor to the decision-maker (either actively or impliedly) ( Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57; Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 76 ALJR 966).'


case_title: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57


case_title: Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 76 ALJR 966


case_title: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1


case_title: Cornall v A.B. [1995] 1 VR 372

case_text: The importance of looking at the decision-making process in its entirety was referred to in the decision of Cornall v A.B. [1995] 1 VR 372 which concerned the application of a scheme of review in relation to an alleged breach of professional standards by a solicitor. In that case, the statutory scheme provided for a staged process of investigation and referral before the making of a final determination. The Full Court of the Victorian Supreme Court observed, at 396, that it is not a requirement in every case that an investigative body must afford a person under investigation an opportunity to be heard before the body can recommend a further step which could result in a determination of a judicial or quasi-judicial nature. At 397, the Court noted that consideration of the relevant principle may properly begin with a statement of S.A. de Smith in his Judicial Review of Administrative Action (4 th ed.) p. 199 , which reads: "Where an act or proposal is only the first step in a sequence of measures which may culminate in a decision detrimental to a person's interests, the courts will generally decline to accede to that person's submission that he is entitled to be heard in opposition to this final act, particularly if he is entitled to be heard at a later stage." 41 Their Honours decided that the common law principles of natural justice could be modified or displaced where a legislative intent could be discerned from a statutory scheme. In the case of Cornall , the requirements of natural justice were considered to have been satisfied by the statutory scheme leading to the ultimate determination, having regard to the entire process from the complaint to the final determination. The requirements of procedural fairness were therefore considered to have been exclusively prescribed by the detailed statutory scheme, and there was no room for the implication of procedural fairness in addition to those provided by the Legal Profession Practice Act 1958 (Vic) . Their Honours also referred to the decision of Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596, where Mason CJ, Deane and McHugh JJ said at 598: "It can be taken as settled, that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment."


case_text: Their Honours decided that the common law principles of natural justice could be modified or displaced where a legislative intent could be discerned from a statutory scheme. In the case of Cornall , the requirements of natural justice were considered to have been satisfied by the statutory scheme leading to the ultimate determination, having regard to the entire process from the complaint to the final determination. The requirements of procedural fairness were therefore considered to have been exclusively prescribed by the detailed statutory scheme, and there was no room for the implication of procedural fairness in addition to those provided by the Legal Profession Practice Act 1958 (Vic) . Their Honours also referred to the decision of Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596, where Mason CJ, Deane and McHugh JJ said at 598: "It can be taken as settled, that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment."


case_text: The question is whether the statutory provisions are effective to exclude any supplementary duty of fairness under the common law. In order to exclude the rules of natural justice, the legislative intent must be clearly evident and cannot be discerned from indirect references, uncertain inferences or equivocal considerations: Commissioner of Police v Tanos [1958] HCA 6 ; (1958) 98 CLR 383 at 396.


case_text: In assessing the procedural fairness requirements in the present case, a relevant consideration is whether the respective decisions of the Director and the Committee may be said to part of the one decision-making process. In the matter of Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564, the High Court considered whether the operation of the Criminal Justice Commission of QLD and Parliamentary Criminal Justice Committee could be said to be part of a unitary decision-making process. This, in their Honours' view, was an essential requirement in excluding the duty. At 578, Mason CJ, Dawson and Toohey JJ noted: 'It is not in doubt that, where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if "the decision-making process, viewed in its entirety, entails procedural fairness" (South Australia v. O'Shea [1987] HCA 39 ; (1987) 163 CLR 378 at 389) .' 44 Accordingly, it is permissible to have regard to the scheme as a whole. Looking at the process in the present case in its entirety, the contested decisions of the Director and Committee were clearly part of, and directed to, the ultimate determination by the Determining Authority. They may be characterised as part of a single, sequentially-stepped decision-making process leading to a final outcome. This consideration leads to the conclusion that the legislative scheme is sufficiently exhaustive to indicate a legislative intent to exclude the application of additional measures to achieve procedural fairness. 45 As counsel for the Respondents points out, and as appears from the material attached to the Adjudicative Referral, the reports prepared by Dr Davidson and Dr Dawson were not before the Committee, which proceeded to hear the matter on the material before it. Accordingly, it cannot be said that the Committee's decision was "infected" or "poisoned" in any way by the two reports. 46 In this case, I am satisfied that the statutory scheme, considered as a whole, exclusively provided for procedural fairness principles to the extent that the legislature intended those principles to apply. I am satisfied that in its entirety, the process in fact afforded procedural fairness to the Applicant in respect of the Director's decision. Accordingly, I do not consider that there is any substance in the procedural fairness argument based on the Director's examination of the reports of Dr Davidson and Dr Dawson. 47 The Applicant also challenges the decision of the Director on the basis that he sent the Committee copies of the 39 medical records together with his Director's Report which stated that it was open to the Committee to make a finding of inappropriate practice in relation to Dr Phan. It is submitted that this sample of records was not "random" because it contained items that had been previously examined by the Director and found to be examples of inappropriate practice. Therefore, the Applicant contends, the samples were not in accordance with the statutory procedure and were biased or skewed in such a way that any decision in relation to them must be invalid. 48 It is common ground that the Commission drew a preliminary random sample and then asked Dr Phan to produce the patient records relating to the item 23 services in that sample. I accept the view of Professor Nicholls that from a statistical point of view, it is irrelevant that the Committee looked at the same random samples and services as the Director. It was the Committee, rather than the Director, which had the authority to decide whether the sample disclosed inappropriate practice.


case_outcome: distinguished

case_text: To support his position, Dr Phan has referred to the decision of Edmonds J in Mathews v Health Insurance Commission (2006) 90 ALD 49. In that case, his Honour decided that the Committee had erred in its sampling by failing to examine samples randomly drawn from a preliminary random sample as required by Health Insurance (Professional Services Review - Sampling Methodology) Determination 2000 (No. 1) ("the Determination"). The breach considered by his Honour was clear. The case was decided on the basis that the Committee had examined the first 30 services on lists of the first 40 services taken from lists of random samples furnished by the Commission. They were not therefore 'randomly drawn from the preliminary random sample' as required by s 8(a) of the Determination. 50 In the present case, the Committee - as it was entitled to do under s 106K(4) - used a sampling methodology which was not the subject of a Ministerial determination under s 106K(3). Instead, it used the sampling methodology which had been advised to be statistically valid by Professor Nicholls pursuant to s 106K(4) of the Act. The case of Mathews is clearly distinguishable from the present case, both on its facts and having regard to the controlling principles. 51 It was submitted by the Applicant in Mathews that the Committee's examination of 30 services in each MBS item of service under review from a list of 40 services provided to the Committee by the Director which included services that had already been examined by the Director and found to be deficient and adverse to Dr Mathews had the effect that the sample could no longer be considered to have been 'randomly drawn from the preliminary random sample.' His Honour did not find it necessary to determine this question and specifically left it open. However, he did indicate that there might be some suggestion that this allegation of error in the sampling process should be upheld. 52 It is important to note that, as discussed above, the Mathews case is distinguishable and that Edmonds J specifically refrained from deciding that particular question. The observation of his Honour is not binding on me. In my view, the sample used in the present case was in accordance with the requirements of the Act. The evidence is that the Commission drew a preliminary random sample and that the Director required the production of records which he examined. He concluded, for the reasons given by him in his Report, that it would be appropriate for him to refer the matter to a Committee. In examining the material and completing his Report, the Director did not decide that there was inappropriate conduct. That determination was left for the Committee to make following a hearing and having regard to the evidence adduced at that hearing. It is not correct to suggest that the Director had found that the samples had in fact given rise to inappropriate conduct. The fact that the Director examined and considered the records and forwarded them to the Committee does not affect their randomness when they were considered afresh by the Committee. The sample items retained their character as random samples and were not skewed or biased so that the Committee's decision should be considered invalid. 53 The next ground of invalidity raised relates to Professor Nicholls' memorandum addressed to Ms Goodspeed dated 5 March 2004. It is submitted that Professor Nicholls' memo demonstrates that the decision of the Committee was based on errors of law. 54 On 4 March 2004, Ms Goodspeed, who had been given the task of preparing a draft report for the Committee, sent an email to Professor Nicholls. She sought his advice as to whether it was unsafe to proceed with the proposed sampling methodology. In his reply of 5 March 2004, Professor Nicholls responded: 'Re: Request of 4 March 2004 From the information supplied I note: • From the 17,970 item 23 services a random sample of 84 services have been examined (with 4 services being disregarded due to no records). The Committee found that of the remaining 80 services, 69 or 86% (rounded down) were considered inappropriate. • Applying appropriate statistical techniques it can be shown that we can be 95% confident that the true percentage of inappropriate practice lies between 86% + 8%, that is the lower 95% confident limit is 78%. This value (78%) is to be chosen as the level of inappropriate practice (rather than 86%). In conclusion, it is statistically valid to accept the conclusion based on the sample of 80 item 23 services that the level of inappropriate practice will be determined as 78%. I confirm that I am a statistician accredited by the Statistical Society of Australia Inc. as required under subsection 106K(4) of the Act.'


case_text: In the course of the hearing and the reading of evidence, there were objections to certain material prepared by Professor Nicholls concerning material said to have been before the Committee. The principal objection taken by the Applicant was that to allow such evidence would be contrary to the principle of 'judicial immunity,' as discussed in the judgments of Gaudron J in Herijanto v Refugee Review Tribunal [2000] HCA 49 ; (2000) 170 ALR 379 and Herijanto v Refugee Review Tribunal (No 2)(2000)170 ALR 575. Those decisions were concerned with the operation of s 435(1) of the Migration Act 1958 (Cth), which confers on members of the Refugee Review Tribunal ("RRT") the same protection and immunity as a member of the Administrative Appeals Tribunal. In the present case, s 106F(1) of the Act gives to Committee members in the performance of their duties the same protection and immunity as that given to a Justice of the High Court. 63 Her Honour held that the entire general protection and immunity of a Justice of the High Court is conferred on a member of the RRT by s 435(1), and that this immunity extends to the disclosure of any aspect of the decision-making process. In her Honour's view, the purpose of such a provision was to provide freedom of thought and independence of judgment. Her Honour found no difficulty with the proposition that, in appropriate cases, a judge may be required to disclose 'the record' on which the judge has acted. However, in her Honour's view, the production of additional material beyond the record could breach immunity: Herijanto v Refugee Review Tribunal [2000] HCA 49 ; (2000) 170 ALR 379 at 383. 64 In respect of several of the interrogatories at issue in Herijanto , her Honour found that answers would not disclose the decision-making process and therefore these were permitted. However, where Gaudron J considered that the nature of the interrogatories sought compulsory disclosure of aspects of the decision-making process, her Honour held that they constituted a contravention of s 435(1). The offending interrogatories were consequently set aside by her Honour.


case_text: In the course of the hearing and the reading of evidence, there were objections to certain material prepared by Professor Nicholls concerning material said to have been before the Committee. The principal objection taken by the Applicant was that to allow such evidence would be contrary to the principle of 'judicial immunity,' as discussed in the judgments of Gaudron J in Herijanto v Refugee Review Tribunal [2000] HCA 49 ; (2000) 170 ALR 379 and Herijanto v Refugee Review Tribunal (No 2)(2000)170 ALR 575. Those decisions were concerned with the operation of s 435(1) of the Migration Act 1958 (Cth), which confers on members of the Refugee Review Tribunal ("RRT") the same protection and immunity as a member of the Administrative Appeals Tribunal. In the present case, s 106F(1) of the Act gives to Committee members in the performance of their duties the same protection and immunity as that given to a Justice of the High Court. 65 In the later Herijanto decision, her Honour held that the protection conferred by s 435(1) extended not merely to disclosure by the individual member concerned, but the revelation, by whatever means, of any aspect of their decision-making process. It was also noted by her Honour that whether or not the privilege extended to the revelation, by whatever means, of the decision-making processes of individual members, it would not be right to order discovery to enable the plaintiffs to do indirectly what they could not do directly. Accordingly, her Honour refused the discovery application: Herijanto v Refugee Review Tribunal (No 2)(2000)170 ALR 575.


case_text: In Mathews v Health Insurance Commission (No. 1) [2005] FCA 1061 , Edmonds J refused an application for discovery of the file of the Committee. In that case, the Applicant submitted that the file should be disclosed on the basis that an affidavit of the Manager of the Committee Unit indicated that the Manager had reviewed the Committee file and certain statements in the affidavit were made in consequence of that review. Referring to the principles articulated by Gaudron J in the Herijanto cases , his Honour rejected the application for discovery of the Committee file . 67 In the present case, the Committee has not opposed the disclosure of the material provided in Professor Nicholl's report in respect of which the Applicant makes the objection based on judicial immunity. In my view, there are two considerations which lead me to reject the submissions of the Applicant as to the application of judicial immunity in this case. 68 The first is that the advice of Professor Nicholls and the circumstances surrounding the provision of his report have not been shown to be a part of or an aspect of the decision-making process of the Committee or any individual member. The certification by Professor Nicholls and matters relating to it were directed to the provision of advice as to whether a statistical method was valid and could be used by the Committee. In other words, the advice of Professor Nicholls provided a basis, factum or tool of analysis in respect of which the Committee was free to act if it so chose. The Committee was able to accept a methodology approved by him as being in accordance with the required procedures, but his certification of the relevant methodology could not be said to be part of the Committee's 'decision-making process' in the sense articulated by Gaudron J in the Herijanto decisions. 69 The second consideration is that Professor Nicholls cannot be considered to be a member or agent of the Committee. I do not agree with Applicant's contention that the principle of judicial immunity operates to prevent Professor Nicholls from providing copies of his report to the Court because he is effectively the Committee's agent. Professor Nicholls is an independent expert consultant of the Committee, and accordingly the evidence which is objected to is not within the immunity conferred by s 106F. 70 In addition, I do not consider that s 129 of the Evidence Act 1995 (Cth) takes the matter further or is of any assistance to the Applicant. I do not need to decide whether the immunity can be waived in a manner similar to the way in which, for example, legal professional privilege can be waived, having regard to the public interest element that is concerned with the grant of judicial immunity. I note that Division 3 of Part 3.10 of the Evidence Act in which s 129 appears is entitled "Evidence Excluded in the Public Interest." Clearly, the evidence given by Professor Nicholls in this case is an expression of his own independent advice. 71 As a consequence of my ruling in the course of the hearing on the judicial immunity objection, counsel for the Applicant indicated that he might seek discovery of other documents in the Committee file on the basis that there had been a "waiver" of the privilege by the Commission, and that the Applicant was therefore entitled to see the whole of the file and not just simply the letter of advice from Professor Nicholls. However, this course was not pressed by the Applicant. 72 For these reasons, I am of the opinion that the challenges made to the decisions of the Director and the Professional Services Review Committee must fail. 73 Accordingly, the application is dismissed with costs. I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 6 March 2007 Counsel for the Applicant: Mr M A Robinson Solicitor for the Applicant: TressCox Lawyers Counsel for the Respondents: Mr P J Hanks QC with Ms R M Henderson Solicitor for the Respondents: Minter Ellison Lawyers Date of Hearing: 18 & 19 December 2006 Date of Judgment: 6 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/269.html


case_text: The refusal of an adjournment may amount to a denial of procedural fairness if it is likely to deny a party a reasonable opportunity to present his or her case ( Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] per Gaudron and Gummow JJ ( Bhardwaj ); Touma v Saparas [2000] NSWCA 11 at [27] ). The procedure that will satisfy the demands of procedural fairness may differ in order "to meet the particular exigencies of the case" ( Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 615 per Brennan J). As I stated in Ali v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1415 ; (2005) 41 AAR 410 at [27] : Ultimately, each complaint of a failure to accord procedural fairness by reason of the refusal of an adjournment turns on its own facts. Whether an adjournment should be granted is a matter within the discretion of the trial Judge (or Tribunal), to be resolved according to the overall requirements of justice in the particular circumstances [citation omitted].


case_title: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597


case_title: Touma v Saparas [2000] NSWCA 11


case_text: 53 provides as follows: False or misleading representations A corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services or in connexion with the promotion by any means of the supply or use of goods or services: (a) falsely represent that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use; (aa) falsely represent that services are of a particular standard, quality, value or grade; (b) falsely represent that goods are new; (bb) falsely represent that a particular person has agreed to acquire goods or services; (c) represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have; (d) represent that the corporation has a sponsorship, approval or affiliation it does not have; (e) make a false or misleading representation with respect to the price of goods or services; (ea) make a false or misleading representation concerning the availability of facilities for the repair of goods or of spare parts for goods; (eb) make a false or misleading representation concerning the place of origin of goods; (f) make a false or misleading representation concerning the need for any goods or services; or (g) make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy. Reliance in the present proceeding is placed upon s 53(a) , (aa), (c) and (d). There is no reason to give these provisions anything other than their normal meaning. In McDonald's Systems of Australia Pty Ltd v McWilliams Wines Pty Ltd (1979) 28 ALR 236 at 247, Franki J considered the meaning of the terms " sponsorship " and " approval ". His Honour there concluded as to the meaning of these two terms as follows: In Weitmann v Katies Ltd (1977) 29 FLR 336 at 344, I had occasion to consider the meaning of the word "sponsorship" in s 53(c) and I said: "The word 'sponsorship' in connection with trade marks or trade names seems to envisage something more along the lines of a certification mark." I see no reason to change this view and I consider that the word "sponsorship" in s 53(c) should be construed in a way appropriate to the construction of such a word in a section creating a criminal offence. ... The next question is whether there was a representation by the respondent that its wine had "approval" which it did not have. ... The Oxford Dictionary defines "approval" as "the action of approving; sanctioning, approbation". The most appropriate meanings of "approve" in the Oxford Dictionary are, in my opinion, "to confirm authoritatively; to sanction; to pronounce to be good; commend". ... It has, however, been questioned whether these definitions place " too narrow a meaning upon these terms, attached as they are to the verb 'represent'... ": 10 th Cantanae Pty Ltd v Shoshana Pty Ltd (1987) 79 ALR 299 at 325 per Gummow J. Nor should any constrained meaning be placed upon the term " affiliation " as used in s 53(d). In Mark Foys [2000] FCA 1626 , 104 FCR 61 , conduct was held to fall within s 53(c) and (d) in circumstances where a television sales company pursued a marketing strategy of associating itself with the defunct Mark Foys department store. See also: 10 th Cantanae (1987) 79 ALR 299. A breach of s 53(c) was made out in Australian Competition and Consumer Commission v Chen [2003] FCA 897 , 132 FCR 309 in circumstances where a person operating an internet web site falsely represented that the site had some affiliation with or association with the Sydney Opera House. See also Australian Competition and Consumer Commission v Wizard Mortgage Corporation Limited [2002] FCA 1317 , (2002) ATPR 41-903. The essence of the action in passing off, it may thus be noted, is the protection of a plaintiff's goodwill attaching to a business or commercial venture. In Campomar [2000] HCA 12 at [108] , 202 CLR at 88, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ thus observed that "... passing-off, at least so far as concerns equitable relief, protects against injury to the goodwill built up by the activities of the plaintiff ". It is not concerned with an invasion of privacy: 10 th Cantanae (1987) 79 ALR at 317 per Gummow J. The tort includes "... circumstances involving the deceptive or confusing use of names, descriptive terms or other indicia to persuade purchasers or customers to believe that goods or services have an association, quality or endorsement which belongs or would belong to goods or services of, or associated with, another or others ... ": Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) [1984] HCA 73 ; (1984) 156 CLR 414 at 445 per Deane J. The tort is not confined to cases where loss consists in the diversion of trade: Turner v General Motors (Australia) Pty Ltd [1929] HCA 22 ; (1929) 42 CLR 352 at 368 per Dixon J. The tort extends to those cases where a plaintiff and defendant are not engaged in a " common field of activity " and where a defendant is not in direct competition with a plaintiff: Totalizator Agency Board v Turf News Pty Ltd [1967] VR 605 at 608 to 609 per Smith J; 10 th Cantanae (1987) 79 ALR at 324 per Gummow J.


case_text: however, there have emerged two lines of authority such that the path to be followed remains unclear. In Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 , 156 FCR 380 , Kenny J expressed these two lines of authority as follows: [160] The law concerning the liability of directors and other officers for corporate wrongdoings is unclear: see Allen Manufacturing Company Pty Ltd v McCallum & Company Pty Ltd (2001) 53 IPR 400 at 409 411 per Wilcox, French and Dowsett JJ (" Allen Manufacturing "). There are two relevant lines of authority, each supportive of a different test. As the Full Court said in Allen Manufacturing 53 IPR at 409: One line supported ... the " Performing Right Society test": whether the director had "directed or procured" the company's infringement. The other line supported "the Mentmore test": whether the director had engaged in "the deliberate, wilful and knowing pursuit of a course of conduct that was likely to constitute infringement or reflected an indifference to the risk of it". [161] No Full Court of this Court has settled which of these two tests is to be preferred: see Allen Manufacturing 53 IPR at 410 411 and Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 ; (2002) 55 IPR 354 at [160] [161] per Weinberg and Dowsett JJ (" Sydneywide "). In Root Quality Pty Ltd v Root Control Technologies Pty Ltd [2000] FCA 980 ; (2000) 177 ALR 231 (" Root Quality "), Finkelstein J discussed both tests and concluded at [46] that "[t]he director's conduct must be such that it can be said of him that he was so personally involved in the commission of the unlawful act that it is just that he should be rendered liable." I tend to agree with his Honour's approach: compare also Universal Music [2005] FCA 972 ; 150 FCR 1 at [134]. Branson J did not express a preference for either test and the remaining member of the Court, French J, simply agreed with the conclusion of Branson and Kenny JJ that the appeal should be dismissed. Notwithstanding the acknowledgment that there are these two distinct lines of authority, the Full Court has suggested that the differences may be more apparent than real. In Allen Manufacturing Co Pty Ltd v McCallum & Co Pty Ltd [2001] FCA 1838 , 53 IPR 400 Wilcox, French and Dowsett JJ concluded: [43] The difference between the two tests may be more apparent than read [sic]. We are not aware of any case in which it has been held that a director or officer of a company directed or procured the company's infringing act, yet that person escaped liability because he or she did not deliberately, wilfully or knowingly pursue a course of conduct that was likely to constitute infringement or that reflected indifference to the risk of infringement. This may be because, in practice, an act of direction or procurement will generally meet the Mentmore test. It is notable that, in Mentmore itself, the Canadian Federal Court of Appeal declined (at 204) to "go so far as to hold that the director or officer must know or have reason to know that the acts which he directs or procures constitute infringement". The court declined to do this because that "would be to impose a condition of liability that does not exist for patent infringement generally". The same conclusion was reached by Gordon J in LED Technologies Pty Ltd v Elecspess Pty Ltd [2008] FCA 1941 at [171] to [175] [2008] FCA 1941 ; , 80 IPR 85 at 128 to 129.


case_text: hearing was initially set down for final hearing in December 2008. An application made prior to that date by the Fourth Respondent for the vacation of those dates was rejected: AMI Australia Holdings Pty Limited v Bade Medical Institute (Aust) Pty Limited [2008] FCA 1783. But the final hearing did not in any event proceed in December 2008 because of the absence of the Fifth Respondent. She was unfit to attend because she had recently undergone dental treatment. After the vacation of the December 2008 hearing dates, the final hearing of the proceeding was listed to take place on 8 and 9 April 2009. But on those dates the hearing again did not proceed due to what was said to be a " psychological disorder " of the Fifth Respondent which rendered her " unfit for court ". So much, at least, was the assertion in what could only be described as a cursory medical certificate of a medical practitioner. No further details were provided. Indeed, the Fifth Respondent was not present in Court when the matter was called for hearing. The hearing was adjourned for a short period and she ultimately appeared later in the morning. Notwithstanding reservation as to whether the hearing should nevertheless proceed on 8 and 9 April 2009, the hearing was adjourned until 1 and 2 June 2009. The Fifth Respondent was informed that no further adjournment would be entertained unless a medical certificate was provided which set forth sufficient detail such that an informed view could be formed as to her condition and the doctor providing any such further certificate was made available for such questioning as was considered appropriate. An application was made at the outset of the hearing on 1 June 2009 by Counsel then appearing for the Third Respondent by way of a Notice of Motion filed on 29 April 2009. The substantive relief sought in that Motion was to amend the Defence as filed by the Third Respondent on 1 October 2008; in particular, to amend the Defence to withdraw an admission in relation to paragraphs [3] and [4] of the Statement of Claim , which alleges: 3. At all material times, the Third Respondent (Mr Wade) and Fourth Respondent (Dr Beaini) have been the sole directors of Bade. 4. By reason of the matters pleaded in paragraph 3 above, at all material times Mr Wade and Dr Beaini have been the controlling minds of and in positions to control and/or have controlled, Bade. The identification in paragraph [3] of the two Respondents is an obvious error — it is Dr Beaini who is the Third Respondent; Mr Wade is the Fourth Respondent. But nothing turns on that error. The amendment sought to be made to the Defence was to " not admit " paragraphs [3] and [4]. The reference to " Bade " is a reference to the First Respondent, the Bade Medical Institute. There was no dispute that Dr Beaini was a director of the Bade Medical Institute from 30 May 2006 to 10 December 2007. It is the departure from the admission that Dr Beaini was a " controlling mind " of the Bade Medical Institute that Dr Beaini sought to achieve. Affidavits relied upon in support of the Motion and filed on 29 April 2009 annex correspondence dating back to December 2008. It was at that stage that those appearing for Dr Beaini first flagged a desire to withdraw the admission. The Applicants' solicitors sought particulars in December 2008 of " the basis upon which your client wishes to now be released from his admissions ". The response to that request in April 2009 was to contend " that your request for particulars is not an appropriate request ... ". Undertaking a side by side comparison, it is concluded that the marks are not " substantially identical ". The most prominent feature of the AMI trademark is the white circular disc with the centre cut out. Attention is drawn to this image because of its position and it being set against a contrasting background. Another prominent feature of the mark is the acronym " AMI " displayed directly beneath the circular disc in bold white type. The words " Advanced Medical Institute of Australia ", positioned immediately below the acronym, attract less attention because of their smaller size and compressed typeset. The Bade logo of which the Applicants complain has different salient features. In contrast to the AMI mark, in which the circular disc is a particular feature, the prominent feature of the Bade logo is the stylised text " bademedicalinstitute ". The first two words of this phrase are emphasised in bold typeface. Unlike the AMI mark, the Bade logo includes neither a circular disc image nor an acronym. Perhaps the most similar feature of the two marks is the semi-circular device in the upper left portion of each mark. In the AMI mark, the device takes the form of a series of close-set lines that appear to radiate from the circular disc at the centre of the mark. In contrast, in the Bade logo it is an elongated crescent that frames the text at the centre of the mark. In this way, each of these distinct semi-circular devices operates to accentuate the main distinguishing feature of the respective marks, serving to better distinguish each mark from that of its competitor. It is thus concluded that the marks are sufficiently distinct from one another that they cannot be said to be " substantially identical ". The manner in which the Bade Medical Institute promoted and sold its own products diverted sales away from the Applicants. The apparent similarity in the names being used was supported (in part) by some evidence of those who bought the Respondents' products. A private enquiry agent who had been retained by the Applicants thus gave evidence of a phone call made in December 2007 to the Bade Medical Institute and the following conversation: He said: Hello, Jack speaking I said: Who have I called? He said: Bade. I said: I've rung in relation to erectile problems, and am enquiring about your products. There then followed a conversation as to the product itself as follows: I said: ... What is the cost of the spray? He said: $450, and you get about fifty doses for that. I said: Are you AMI? He said: Yes, Australian Medical Institute. I said: Are you the ones that advertise AMI everywhere? He said No, that is the Advanced Medical Institute. I said: You're not the same? He said: No, we're different. Can you give me your name and address to send the spray to? Notwithstanding the acknowledgment that " we're different ", the association with " AMI " remained. As against the Second Respondent, World Wide Internet Services (Aust.) Pty Ltd, contraventions of ss 52 , 53 (a), 53 (aa), 53 (c) and 53 (d) of the Trade Practices Act were alleged. Again, it is not in dispute that the Second Respondent: was the holder, owner and operator of all domain names used by the First Respondent; and provided the website and hosting capacity for the websites used by the First Respondent in relation to its business. World Wide Internet Services (Aust.) Pty Ltd registered approximately 46 domain names, including: Another contention pursued by the Applicants was that Mr Wade and the Bade Medical Institute intentionally set out to " intercept " people searching the internet for access to the Applicants' products and to divert them to their own products. One explanation provided by Mr Wade was that the initials " AMI " stood for " acute myocardial infarction ". At one stage during the cross-examination, Mr Wade was taken to a list of searches undertaken on the internet. An exchange occurred as follows: There is not a single instance in this list where someone has looked for acute myocardial infarction?---Oh no. Whatever I ... You accept that, don't you?---Whatever I AMI, you say the word AMI. It's one of the salient acronyms for acute myocardial infarction, which is one of the cause of [impotence]. I've even put the word viagra alternatives but I wasn't selling Viagra. Mr Wade, no one would search for AMI and nasal delivery unless they intended to look for the applicant's products and understand something about them?---Ridiculous. You have an assumption of your term AMI that you own everything between here and Botswana for the word AMI. The explanation provided by Mr Wade for the acronym " AMI " is rejected. It is considered that it was used for the very purpose being suggested by the cross-examiner. Although too much reliance should not be placed upon inconsistencies in the evidence of different witnesses, such inconsistencies as do exist are not to be disregarded and serve as a source of concern as to the reliability of the balance of the evidence being given by the Respondents. One instance may be given. The name " Maxine May " appeared on innumerable emails. The evidence of Mr Wade was as follows: So who's Maxine May ? ---Nobody. ... So they were keeping records? ---No. Maxine May was like it was just another email address. I had numerous email addresses but actually there was no Maxine May as a person. But Ms Wade was questioned as to the identity of people variously described in emails and the following exchange occurred: Maxine May, was that Maxine May as well?---That is his girlfriend. Why don't you get her up? Who is Maxine May?---His girlfriend. His girlfriend was every his girlfriend ruled whatever his girlfriend said, he did. Inappropriate weight should not be given to such inconsistencies — especially in a working environment such as apparently prevailed at the Bade Medical Institute where people were known by various names and where an email may be addressed in a manner of convenience rather than specifically attempting to identify a particular person. It matters not whether the name of the " girlfriend " was " Maxine May "; that which matters is Mr Wade's assertion that she was " nobody ". Another instance is that Mr Wade maintained that he had not " worked with " his daughters, Ms Vicky Wade and Ms Patricia Wade. Yet emails in January 2007 were sent to and from Ms Patricia Wade concerning the business of the Bade Medical Institute and Mr Wade accepted that she " did graphics " for the business. Dr Beaini, like Mr Wade, maintained that Ms Vicky Wade " had no role in Bade ". Yet there was evidence of a phone-call being made to the Bade Medical Institute and the telephone being answered by a woman who identified herself as " Vicky ". Taken on its own, and given the apparent ease with which people assumed a variety of names, little weight is to be given to such an isolated telephone call. Indeed, such evidence established little. More persuasive of an involvement on the part of at least Ms Patricia Wade, however, was an exchange of emails in March 2007 when attempts were being made to establish the business of the Bade Medical Centre overseas. One email from " patriciawade " thus stated: Subject: RE: BADE MEDICAL INSTITUTE UK/EUROPE Mediserve have signed I have sent you the signed agreement in pdf form We need their site up asap. I will liase re their logos. Please print and send to Mediserve for their records. The other daughter, Ms Vicky Wade, was also " copied in " on this exchange of emails. Dr Beaini maintained that, from about March or April 2007, he no longer wanted " to deal with Bade " and from " basically around that time I was tapering off ". He continued writing prescriptions until September 2007. Certainly by late November 2007 the relationship between Dr Beaini (on the one hand) and the Fourth and Fifth Respondents (on the other) had deteriorated. On 21 November 2007, for instance, he wrote to the National Australia Bank. The subject-matter addressed in the letter was the " Bade Medical Institute " and an account held with the bank, identifying both the BSB number and the account number. Dr Beaini wrote that his " partners ", identified in cross-examination as Mr and Ms Wade, were still selling products without his involvement and this made " their action illegal ". The bank was asked to " [p]lease freeze this account as a matter of urgency ". In addition to the manner in which Dr Beaini referred to the Fourth and Fifth Respondents as his " partners ", the letter also exposed that Dr Beaini had a sufficiently detailed knowledge of the business activities of the Bade Medical Institute to know the specific details of the bank account. Notwithstanding the terms in which the letter was expressed, it is also curious to note that when asked as to the response of the bank to the letter Dr Beaini stated that he " presume[d] they froze the account. I didn't really follow it up, to be honest ". Had his intent been to sever all ties, a more immediate interest in the state of the bank account might have been expected. Notwithstanding his repeated assertions that his involvement in the business activities of the Bade Medical Institute and the promotion of the business by the Fourth Respondent was primarily confined to carrying out consultations, writing prescriptions and participating in the medical content of the advertising material contained on the internet, it is not considered that his involvement was so confined. It is not considered that Dr Beaini was as forthcoming in his dealings with the Bade Medical Institute and the Fourth and Fifth Respondents as was desirable. His repeated attempts to explain what he thought was important, as opposed to answering the questions being put to him, may be understandable. As a medical practitioner, it is suspected that he may have felt as uncomfortable in the witness box as his cross-examiner would have felt on an operating table. It may also be readily understandable that Dr Beaini saw his involvement in the business activities of the Bade Medical Institute primarily through the eyes of a medical practitioner. But such an understanding does not deny him knowledge of the more general business activities of his " partners ". An apparent failure on his part to produce such documents and records as may have supported his case only serves to reinforce a lack of confidence in accepting his account unquestioningly. It is considered that his involvement was greater than he was prepared to disclose. Considerable reservation has been previously expressed as to the medical evidence sought to be relied upon by the Fourth Respondent when seeking a vacation of the December 2008 hearing dates: AMI Australia Holdings [2008] FCA 1783 at [8] to [11]. And considerable reservation is expressed as to whether or not the Fifth Respondent was in fact " unfit for Court " in April 2009, as claimed. For whatever reason, there has been a substantial period of delay between December 2007, when the Applicants were ready to proceed, and June 2009. There was also a further, more limited delay between the conclusion of the hearing in June 2009 and the hearing of final submissions in August 2009. To a large extent that latter delay was occasioned by a desire to ensure that the case for the Applicants was outlined in a sufficiently detailed manner that the unrepresented Respondents would have an adequate opportunity to comprehend how the Applicants sought to marshal the law and the facts against them.


case_title: Anheuser-Busch Inc v Budejovicky Budvar [2002] FCA 390 , 56 IPR 182

case_text: way of contrast, whether a mark is " deceptively similar " is not to be determined by a side by side comparison, but rather by reference to whether there is a likelihood of deception or confusion from a recollection or impression of the registered mark: Anheuser-Busch Inc v Budejovicky Budvar [2002] FCA 390 at [143] [2002] FCA 390 ; , 56 IPR 182 at 216. Allsop J there observed (citations omitted): [143] The question of deceptive similarity must be judged by a comparison different from the side by side comparison undertaken to assess substantial identity; the question being the likelihood of deception or confusion from a recollection or impression of the registered mark. Thus, a side by side comparison is inadequate, and too narrow a test. The comparison is between, on the one hand, the impression based on recollection of the registered mark used in a normal or fair manner that persons of ordinary intelligence and memory would have, and, on the other hand, the impressions that such persons would get from the impugned mark as it appears in the use complained of ... See also: E & J Gallo Winery [2008] FCA 934 at [53] to [55], 77 IPR at 79 to 80. It is not appropriate when making this comparison to undertake a wider enquiry of the kind undertaken in a passing off action or in a proceeding in which a contravention of Part V of the Trade Practices Act is alleged: CA Henschke & Co v Rosemount Estates Pty Ltd [2000] FCA 1539 at [44] , [2000] FCA 1539 ; 52 IPR 42 at 62 per Ryan, Branson and Lehane JJ. In assessing whether the marks are deceptively similar, it is relevant to consider the context in which customers are likely to form their impressions of the marks: Australian Woollen Mills Ltd v FS Walton & Co Ltd [1937] HCA 51 ; (1937) 58 CLR 641 at 658 per Dixon and McTiernan JJ; Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592 at 595 per Kitto J; Anheuser-Busch Inc [2002] FCA 390 at [153] , [2002] FCA 390 ; 56 IPR 182 at 218 per Allsop J.


case_text: these different objectives, it is not uncommon for a plaintiff to place reliance upon both s 52 of the Trade Practices Act and the tort of passing off: e.g. The Architects (Australia) Pty Ltd v Witty Consultants Pty Ltd [2002] QSC 139. There are " close similarities " between the two causes of action: Osgaig Pty Ltd v Ajisen (Melbourne) Pty Ltd [2004] FCA 1394 at [80] , [2004] FCA 1394 ; 213 ALR 153 at 167 per Weinberg J. Indeed, authorities which have considered the common law tort of passing off provide guidance by analogy as to the type of conduct which would be likely to mislead or deceive the public for the purposes of s 52: R & C Products Pty Ltd v SC Johnson & Sons Pty Ltd [1993] FCA 198 ; (1993) 42 FCR 188 at 192 per Davies J. The tort has been applied in more recent times to circumstances in which a defendant passes off his goods or services as those of the plaintiff by means of an impermissible use of a domain name: e.g. The Architects (Australia) [2002] QSC 139 at [34] per Chesterman J. In determining whether a plaintiff has established distinctiveness in the name or names with which it contends that the goodwill which it seeks to protect has become associated, useful guidance is provided by the following observations of Hill J in Equity Access Pty Ltd v Westpac Banking Corporation [1989] FCA 506 ; (1989) 16 IPR 431 at 448: Just as the distinction between descriptive and fancy names is not a distinction of law so too it is wrong to see the distinction in black and white terms. The reality is that there is a continuum with at the extremes purely descriptive names at the one end, completely invented names at the other and in between, names that contain ordinary English words that are in some way or other at least partly descriptive. The further along the continuum towards the fancy name one goes, the easier it will be for a plaintiff to establish that the words used are descriptive of the plaintiff's business. The closer along the continuum one moves towards a merely descriptive name the more a plaintiff will need to show that the name has obtained a secondary meaning, equating it with the products of the plaintiff (if the name admits of this — a purely descriptive name probably will not) and the easier it will be to see a small difference in names as adequate to avoid confusion. There need not be an exact or even substantial similarity in the nature of the two businesses: The Architects (Australia) [2002] QSC 139 at [27] to [28] per Chesterman J. The reference to the " Performing Right Society test " is a reference to Performing Right Society Ltd v Ciryl Theatrical Syndicate Ltd [1924] 1 KB 1 at 15 where Atkin LJ said: If the directors themselves directed or procured the commission of the act they would be liable in whatever sense they did so, whether expressly or impliedly. In Microsoft Corporation v Auschina Polaris Pty Ltd (1996) 71 FCR 231 at 243 to 244, Lindgren J said of this test: The "procured or directed" test, sometimes referred to as the "authorised, procured or directed" test, focuses attention on the relationship between the director's intention and the particular corporate conduct which the law characterises as tortious. What seems to underlie this test is the notion that, necessarily, companies can engage in tortious conduct only through human beings, and, at least ordinarily, where a particular human being involved and responsible to an appropriate extent can be identified, he should, as a matter of policy, be liable. After all, even if the aggrieved party did not sue him, apparently he would be liable to indemnify the company in respect of its liability to the aggrieved party. A director who " procures or directs " his company to perform a tortious act may thus be liable along with his company: The Architects (Australia) Pty Ltd [2002] QSC 139 at [51] per Chesterman J.


case_text: purpose of an award of interest, however, is compensatory and not punitive: Ardelle v Spastic Society of Victoria Ltd [2001] FCA 220 at [13] . Whatever be the reason for the delay in the resolution of the present proceeding, it is not a delay that can be attributed to the Applicants. Nor can it be said that the Applicants delayed in promptly commencing the present proceeding. Interest, it is considered, should be awarded to compensate the Applicants for being kept out of their money. The only question is as against which Respondent and for what period of time. Any assessment is necessarily imprecise and certainly involves no mathematical certainty. It is considered that both the Fourth and Fifth Respondents should pay interest pursuant to s 51A as from 30 August 2008. But for the delays occasioned by either the Fourth or Fifth Respondent the proceeding would in all likelihood have been heard and resolved by that date.


case_text: Mark Foys [2000] FCA 1626 , 104 FCR 61 , conduct was held to fall within s 53(c) and (d) in circumstances where a television sales company pursued a marketing strategy of associating itself with the defunct Mark Foys department store. See also: 10 th Cantanae (1987) 79 ALR 299. A breach of s 53(c) was made out in Australian Competition and Consumer Commission v Chen [2003] FCA 897 , 132 FCR 309 in circumstances where a person operating an internet web site falsely represented that the site had some affiliation with or association with the Sydney Opera House. See also Australian Competition and Consumer Commission v Wizard Mortgage Corporation Limited [2002] FCA 1317 , (2002) ATPR 41-903.


case_title: Australian Competition and Consumer Commission v Francis [2004] FCA 487 , 142 FCR 1

case_text: with s 52 , it is unnecessary for the purposes of s 53(c) or (d) " for there to be evidence that any natural person intended to mislead and deceive ... or even that any natural person knew that the representations were misleading or deceptive or likely to be so ": Australian Competition and Consumer Commission v Francis [2004] FCA 487 at [82] , [2004] FCA 487 ; 142 FCR 1 at 26 to 27 per Gray J.


case_title: Australian Competition and Consumer Commission v Wizard Mortgage Corporation Limited [2002] FCA 1317 , (2002) ATPR 41-903