case_text: In SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 , the appeal arose from a Tribunal decision which had found that the applicant for a protection visa had fabricated his claim and various documents submitted in support of it. In reaching this conclusion, the Tribunal relied upon the fact that the applicant's written statement to the Department did not mention the claims of persecution that the Tribunal ultimately rejected. One of the issues that arose on the appeal to this Court was whether s 424A applied to the information contained in the applicant's original statement to the Department. After referring to VAF, Paul and WAGP , Allsop J at [26] and [34] held that it did: "I have extracted earlier the places in the Tribunal's reasons where the prior statement is used. Having read the whole of the reasons of the Tribunal, it is clear that the comprehensive disbelief of the appellant and the finding that he had brought forward fraudulent documentation was largely, if not wholly, a product of the importance placed by the Tribunal on the form and content of his first statement. In short, the Tribunal found that if what he was saying were true, it would have been referred to earlier. The fact that it was not, demonstrated the falsity of his evidence to the Tribunal. ... In my view, here, the knowledge of the Tribunal of the content of the earlier statement, including the limits of its contents can be seen to be a part of the reason for the decision because its form and content were instrumental in the Tribunal reaching a conclusion that the oral evidence of the appellant was false and the documents he was propounding were fraudulent." In Allsop J's view, the case before him involved something more than what Finn and Stone JJ in VAF at 476-477 [24] had called 'identified gaps, defects or lack of detail or specificity' in evidence given to the Tribunal, or what the Full Court in WAGP had described as a failure to mention something in evidence given to the Tribunal. 47 In separate reasons for judgment, each member of the Full Court in SZEEU considered the application of s 424A(2) to information which the Tribunal had relied on to make adverse credibility findings. The first piece of information concerned a statement which the appellant had made in a document lodged in support of his protection visa application explaining the circumstances in which he had left Bangladesh. The members of the Full Court described this as 'the flight information'. The second piece of information was that the Tribunal had received essentially the same claims in the same words from several other applicants represented by the same migration agent. This was referred to as 'the similar claims information'. Both pieces of information were used by the Tribunal in making an adverse assessment of the appellant's credibility. Each member of the Full Court considered that the information constituted information within the meaning of s 424A(1). Allsop J expressly stated that he adhered to what he had said in SZECF . There was, however, a difference of view between Moore J on the one hand, and Weinberg and Allsop JJ on the other, concerning the approach which should be adopted to the question whether these pieces of information constituted a part of the reason for the Tribunal's affirmation of the decision made by the Minister's delegate.


case_outcome: referred to

case_text: In the course of his reasons for judgment, Allsop J discussed the decision of Branson J in NAIH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1010 ; (2002) 124 FCR 223 (" NAIH "), which had been cited with approval by the Full Court in WAGP . In NAIH at 226 [8], her Honour had doubted that an intention can be discerned in s 424A that the totality of the claims and assertions in a statement made by an applicant in support of his or her application, and the general impression of coherence or otherwise created by those claims and assertions, is information received by the Tribunal. Allsop J distinguished NAIH on several grounds. First, he thought that Branson J was not directing herself to a case where the very form and content of the applicant's original statement is central to the rejection of virtually all of the applicant's evidence. Secondly, while the Tribunal contrasted the applicant's evidence with the cohesive account in the earlier statement, Branson J found that the Tribunal based its decision on the unconvincing nature of the applicant's oral evidence before it.


case_outcome: cited

case_text: After argument concluded in this appeal, the Full Court (Moore, Weinberg and Allsop JJ) handed down its decision in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 (" SZEEU ") which incorporates four related appeals. The main issue addressed by the Full Court was whether the authority of Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 (" Al Shamry ") should be reconsidered. The Court held unanimously that it should follow the construction of s 424A(3)(d) adopted in Al Shamry . 47 In separate reasons for judgment, each member of the Full Court in SZEEU considered the application of s 424A(2) to information which the Tribunal had relied on to make adverse credibility findings. The first piece of information concerned a statement which the appellant had made in a document lodged in support of his protection visa application explaining the circumstances in which he had left Bangladesh. The members of the Full Court described this as 'the flight information'. The second piece of information was that the Tribunal had received essentially the same claims in the same words from several other applicants represented by the same migration agent. This was referred to as 'the similar claims information'. Both pieces of information were used by the Tribunal in making an adverse assessment of the appellant's credibility. Each member of the Full Court considered that the information constituted information within the meaning of s 424A(1). Allsop J expressly stated that he adhered to what he had said in SZECF . There was, however, a difference of view between Moore J on the one hand, and Weinberg and Allsop JJ on the other, concerning the approach which should be adopted to the question whether these pieces of information constituted a part of the reason for the Tribunal's affirmation of the decision made by the Minister's delegate. 48 Moore J adopted and applied what had been said by Finn and Stone JJ in VAF : see SZEEU at [22] [25]. In his Honour's view, the flight information was not of sufficient significance to warrant a conclusion that it formed part of the Tribunal's reasons for affirming the decision of the Minister's delegate. This was because it was a subsidiary and peripheral reason which the Tribunal relied upon to reject the applicant's claim that charges were outstanding against him in Bangladesh. Other factors referred to by the Tribunal were of greater significance. As for the similar claims information, Moore J noted that the Tribunal only referred to this information after analysing and rejecting the applicant's central claims. In his Honour's view, the Tribunal therefore rejected the central claims of the appellant by a process of reasoning not dependent on the similar claims information: see SZEEU at [27]-[28]. 50 Allsop J held that the test which had been advanced in Paul and VAF had to be reconsidered in the light of the High Court's decision in SAAP . His Honour said that, to the extent that Paul and VAF both include notions of fairness derived from the rules of procedural fairness as part of the analysis of whether something is part of the reason for affirming the decision, those decisions are in conflict with the approach of the majority of the High Court in SAAP . In consequence, his Honour set out what he thought that the approach to be adopted in the future should be at [215]: "In my view, in the light of SAAP , in circumstances where one is faced with a decision of the Tribunal with reasons and the complaint is a contravention of s 424A(1), the question to ask, by reference to the reasons of the Tribunal in the context in which one find them (as revealing what would be the reason or a part of the reason for affirming the decision immediately prior to the making of the decision), is whether the information in question was a part (that is any part) of the reason for affirming the decision. To the extent that the reasons of the relevant majorities in Paul and VAF can be seen to require that the relevant part of the reason have a stature or importance, or be of a character which would make it unfair not to invoke the procedures of s 424A, I think SAAP requires that such an approach be rejected. It is only necessary that the information be a part of the reason." The application of these principles by the majority in SZEEU necessarily led to the conclusion that both the flight information and the similar claims information fell squarely within s 424A. It was sufficient that both pieces of information were referred to and relied upon by the Tribunal as relevant and operative considerations, whether or not they could be described as a subsidiary or a minor part of the reason for the Tribunal's decision. 51 On the question whether the Keskin information and the HRA letter were a part of the reason for the Tribunal's affirmation of the decision made by the Minister's delegate, I consider that I am bound by, and ought to follow, SZEEU as the most recent considered statement of principle by the Full Court. 52 I do, however, wish to make one observation. In my view, it does not follow from the decisions in SAAP and SZEEU that the statutory purpose of s 424A is irrelevant to its proper construction and application. In SAAP , McHugh J at 181 [73] said that s 424A is a statutory formulation of the obligation to accord procedural fairness in the conduct of a review, and endorsed statements in this Court to the same effect: see SAAP at 179 [66]. Hayne J emphasised the crucial role played by the language, scope and objects of s 424A in its construction and application: see SAAP at 211 [208]. In Paul , Allsop J construed and applied s 424A in the light of its purpose of 'ensuring that the claimant is fully informed of information adverse to his or her case (in the manner described by the section) so that investigation may be made, and steps may be taken, somehow, if possible, to meet it': see Paul at 429-430 [104]. In Al Shamr y at 40 [39], Merkel J said that s 424A enacts a basic principle of the common law rules of natural justice that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with relevant matters adverse to his or her interests that the repository of the power proposes to take into account in deciding upon its exercise. Cases may arise in which it is appropriate to take account of the statutory purpose of s 424A in determining whether there is any information within the meaning of s 424A, or whether particular information is the reason, or a part of the reason, for the Tribunal's decision. I do not consider that there is anything to the contrary in SZEEU . 64 The HRA letter was provided to the Department in connection with the appellant's application for a protection visa; it was not given to the Tribunal for the purposes of the review application. In these circumstances, the exception in s 424A(3)(b) is inapplicable. It only applies to information that is given for the purposes of the review application before the Tribunal: see Al Shamry per Ryan and Conti JJ at 33-34 [17]-[20] and per Merkel J at 38-39 [35]; and SZEEU per Moore J at [9], per Weinberg J at [154] and per Allsop J at [199]. The first respondent did not contend that the exception applied, or dispute the appellant's submission that it was inapplicable. 69 Does the HRA letter constitute information to which s 424A applies? The first respondent advanced two reasons why s 424A did not apply. First, it was argued that the Tribunal's subjective appraisal of the HRA letter, in weighing it against the appellant's oral statements and explanations to the delegate and to the Tribunal, did not constitute information for the purposes of s 424A. Secondly, the first respondent argued that any reservations which the Tribunal had about the letter could not be considered integral to, nor an important aspect of, the Tribunal's reasoning process so as to enliven the Tribunal's obligations under s 424A. The second argument must be rejected having regard to the Full Court's decision in SZEEU . The first argument has more substance.


case_text: After argument concluded in this appeal, the Full Court (Moore, Weinberg and Allsop JJ) handed down its decision in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 (" SZEEU ") which incorporates four related appeals. The main issue addressed by the Full Court was whether the authority of Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 (" Al Shamry ") should be reconsidered. The Court held unanimously that it should follow the construction of s 424A(3)(d) adopted in Al Shamry . 52 I do, however, wish to make one observation. In my view, it does not follow from the decisions in SAAP and SZEEU that the statutory purpose of s 424A is irrelevant to its proper construction and application. In SAAP , McHugh J at 181 [73] said that s 424A is a statutory formulation of the obligation to accord procedural fairness in the conduct of a review, and endorsed statements in this Court to the same effect: see SAAP at 179 [66]. Hayne J emphasised the crucial role played by the language, scope and objects of s 424A in its construction and application: see SAAP at 211 [208]. In Paul , Allsop J construed and applied s 424A in the light of its purpose of 'ensuring that the claimant is fully informed of information adverse to his or her case (in the manner described by the section) so that investigation may be made, and steps may be taken, somehow, if possible, to meet it': see Paul at 429-430 [104]. In Al Shamr y at 40 [39], Merkel J said that s 424A enacts a basic principle of the common law rules of natural justice that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with relevant matters adverse to his or her interests that the repository of the power proposes to take into account in deciding upon its exercise. Cases may arise in which it is appropriate to take account of the statutory purpose of s 424A in determining whether there is any information within the meaning of s 424A, or whether particular information is the reason, or a part of the reason, for the Tribunal's decision. I do not consider that there is anything to the contrary in SZEEU . 64 The HRA letter was provided to the Department in connection with the appellant's application for a protection visa; it was not given to the Tribunal for the purposes of the review application. In these circumstances, the exception in s 424A(3)(b) is inapplicable. It only applies to information that is given for the purposes of the review application before the Tribunal: see Al Shamry per Ryan and Conti JJ at 33-34 [17]-[20] and per Merkel J at 38-39 [35]; and SZEEU per Moore J at [9], per Weinberg J at [154] and per Allsop J at [199]. The first respondent did not contend that the exception applied, or dispute the appellant's submission that it was inapplicable.


case_text: In applying s 424A , it is necessary to focus on matters that, viewed prospectively, would be the reason or a part of the reason for the Tribunal's decision, or viewed retrospectively in the light of the Tribunal's actual decision, can be seen to be the reason, or a part of the reason, for the Tribunal's decision. At the outset of the Tribunal hearing and prior to the appellant's evidence to the Tribunal, I doubt that the Keskin information could be characterised as information that the Tribunal then considered, or might consider, would be the reason or a part of the reason for affirming the delegate's decision. By itself, the Keskin information was not adverse to the appellant. Numerous cases suggest that s 424A is concerned with information that is adverse to the interests of the visa applicant: see SAAP per McHugh J at 175 [50]; VAF per Finn and Stone JJ at 476-477 [24]; WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 per French J at 637 [57]; and M17/2004 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 85 ALD 597 per Ryan J at 615-616 [79] [83]. The Keskin information was simply factual information that might assist in testing the extent of the appellant's knowledge of the activities of the HRA in Turkey and the veracity of her claims. The same picture is presented when the matter is viewed retrospectively in the light of the Tribunal's reasons. The Tribunal attached some significance to the fact that in her evidence to the Tribunal the appellant displayed a lack of knowledge of the Keskin information, amongst other matters. In my opinion, the Keskin information cannot be characterised as the reason, or as a part of the reason, for the Tribunal's affirmation of the decision under review.


case_title: M17/2004 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 85 ALD 597


case_text: There is no reason to doubt that 'information' in s 424A(1) is used in its ordinary sense of knowledge communicated or received concerning some fact or circumstance. In VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (" VAF ") at 476-477 [24], Finn and Stone JJ set out the following propositions about the meaning of the term 'information' in its s 424A(1) setting: "(i) the purpose of s 424A is to provide in part a statutory procedural analogue to the common law of procedural fairness: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at 429-30 [104] ; [2001] FCA 1196 ; 64 ALD 289 at 318. However the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; BC200301782; (ii) the word 'information' in s 424A(1) has the same meaning as in s 424; Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 ; (2001) 105 FCR 212 at 218 [20] ; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal: Tin v Minister for Immigration and Indigenous Affairs [2000] FCA 1109 ; BC200004607 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win , at 217-18 [19]-[22]; and (iii) the word does not encompass the Tribunal's subjective appraisals, thought processes or determinations: Tin at [54]; Paul at FCR 428 [95]; ALD 317; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 ; BC200107472 at [25]; approved [2002] FCAFC 120 ; BC200203793; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276 at 282-4 [26] - [29] ." The third proposition has not been doubted but its application has produced some fine distinctions. 37 In Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 (" Paul ") at 428 [95], Allsop J, with whom Heerey J agreed, said: "... I agree with the distinction drawn by Sackville J in Tin v Minister for Immigration and Multicultural and Indigenous Affairs that the information of which particulars must be provided is information or knowledge that has come to or been gained by the Tribunal and is not the subjective appraisal or thought process of the Tribunal ... However, the distinction can become very fine. If the subjective thought processes of the Tribunal are as they are because of the perceived importance of some piece of knowledge, those thought processes may merely reveal the relevance (for the purposes of s 424(A)(1)(b)) of information (for s 424A(1)(a)), requiring the Tribunal to give particulars of that information and to explain its relevance." 70 There is, in my opinion, a valid distinction between the HRA letter and the Tribunal's subjective evaluation of the weight that should be attached to it in the light of the appellant's oral evidence to the Tribunal. Such a distinction is supported by VAF per Finn and Stone JJ at 476-477 [24]; WAGP per Marshall, Weinberg and Jacobson JJ at 282-283 [26] [29]; Tin v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1109 per Sackville J at [53] [54]; and Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 120 per Carr, Moore and Marshall JJ. It is also consistent with the statutory purpose of s 424A , which (to paraphrase the language of Allsop J in Paul at [104]) is to ensure that the applicant is fairly informed of information adverse to his or her case so that investigation may be made, and steps may be taken, if possible, to meet it. By itself, the HRA letter was not the reason, or a part of the reason, for the Tribunal's affirmation of the delegate's decision. Nor was there any point of time prior to the Tribunal's decision at which the Tribunal would have considered that the HRA letter might have constituted the reason, or a part of the reason, for affirming the delegate's decision. It follows that the HRA letter does not fall within the scope of s 424A.


case_text: There is no reason to doubt that 'information' in s 424A(1) is used in its ordinary sense of knowledge communicated or received concerning some fact or circumstance. In VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (" VAF ") at 476-477 [24], Finn and Stone JJ set out the following propositions about the meaning of the term 'information' in its s 424A(1) setting: "(i) the purpose of s 424A is to provide in part a statutory procedural analogue to the common law of procedural fairness: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at 429-30 [104] ; [2001] FCA 1196 ; 64 ALD 289 at 318. However the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; BC200301782; (ii) the word 'information' in s 424A(1) has the same meaning as in s 424; Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 ; (2001) 105 FCR 212 at 218 [20] ; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal: Tin v Minister for Immigration and Indigenous Affairs [2000] FCA 1109 ; BC200004607 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win , at 217-18 [19]-[22]; and (iii) the word does not encompass the Tribunal's subjective appraisals, thought processes or determinations: Tin at [54]; Paul at FCR 428 [95]; ALD 317; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 ; BC200107472 at [25]; approved [2002] FCAFC 120 ; BC200203793; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276 at 282-4 [26] - [29] ." The third proposition has not been doubted but its application has produced some fine distinctions. 70 There is, in my opinion, a valid distinction between the HRA letter and the Tribunal's subjective evaluation of the weight that should be attached to it in the light of the appellant's oral evidence to the Tribunal. Such a distinction is supported by VAF per Finn and Stone JJ at 476-477 [24]; WAGP per Marshall, Weinberg and Jacobson JJ at 282-283 [26] [29]; Tin v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1109 per Sackville J at [53] [54]; and Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 120 per Carr, Moore and Marshall JJ. It is also consistent with the statutory purpose of s 424A , which (to paraphrase the language of Allsop J in Paul at [104]) is to ensure that the applicant is fairly informed of information adverse to his or her case so that investigation may be made, and steps may be taken, if possible, to meet it. By itself, the HRA letter was not the reason, or a part of the reason, for the Tribunal's affirmation of the delegate's decision. Nor was there any point of time prior to the Tribunal's decision at which the Tribunal would have considered that the HRA letter might have constituted the reason, or a part of the reason, for affirming the delegate's decision. It follows that the HRA letter does not fall within the scope of s 424A.


case_text: The immediate obstacle confronting this ground of appeal is that the Tribunal is the finder of fact. Mere errors in fact-finding will not constitute an error of law, let alone a jurisdictional error: see Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 per Brennan J at 35-36; and Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 (" Appellant S106/2002 ") per Gleeson CJ at 61 62 [5] [9] and per Kirby J at 85 86 [116] [120]. Even if a factual finding is illogical or unsupported by evidence, it would only be capable of constituting a jurisdictional error if it constituted a critical step in the Tribunal's ultimate conclusion or demonstrated that there had been only a purported, rather than a real, exercise of power: see Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 per Mason CJ at 355-357; SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 per Mansfield, Selway and Bennett JJ at 407-408 [19] [20]; and NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 (" NACB ") at [29]. In NACB , the Full Court (Tamberlin, Emmett and Weinberg JJ) affirmed a line of authorities to the effect that illogical reasoning does not of itself constitute an error of law or jurisdictional error, or necessarily indicate that there had only been a purported exercise of power. In W404/01A of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 255 at [35] , Lee and Carr JJ, with whom French J agreed, said that even though the Tribunal's reasoning could be regarded as illogical, this did not in itself show a ground of review although it may on occasion manifest other reviewable error. In VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 at [18] , the Full Court (Kiefel, Marshall and Dowsett JJ) reviewed the authorities and concluded that want of logic in the reasons of the Tribunal is not an available ground of review.


case_text: The immediate obstacle confronting this ground of appeal is that the Tribunal is the finder of fact. Mere errors in fact-finding will not constitute an error of law, let alone a jurisdictional error: see Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 per Brennan J at 35-36; and Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 (" Appellant S106/2002 ") per Gleeson CJ at 61 62 [5] [9] and per Kirby J at 85 86 [116] [120]. Even if a factual finding is illogical or unsupported by evidence, it would only be capable of constituting a jurisdictional error if it constituted a critical step in the Tribunal's ultimate conclusion or demonstrated that there had been only a purported, rather than a real, exercise of power: see Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 per Mason CJ at 355-357; SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 per Mansfield, Selway and Bennett JJ at 407-408 [19] [20]; and NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 (" NACB ") at [29]. In NACB , the Full Court (Tamberlin, Emmett and Weinberg JJ) affirmed a line of authorities to the effect that illogical reasoning does not of itself constitute an error of law or jurisdictional error, or necessarily indicate that there had only been a purported exercise of power. In W404/01A of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 255 at [35] , Lee and Carr JJ, with whom French J agreed, said that even though the Tribunal's reasoning could be regarded as illogical, this did not in itself show a ground of review although it may on occasion manifest other reviewable error. In VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 at [18] , the Full Court (Kiefel, Marshall and Dowsett JJ) reviewed the authorities and concluded that want of logic in the reasons of the Tribunal is not an available ground of review. 78 The appellant submitted that the decision in Appellant S106/2002 shows that McHugh and Gummow JJ (at 67 and 71) were prepared to consider a challenge to a Tribunal decision based on the grounds that it was illogical, irrational or lacking a basis in findings or inferences of fact. The first of these passages merely describes the argument and is purely introductory. In the second passage, their Honours were directing themselves to a case where the decision itself was illogical or irrational; not a case where particular findings of fact or findings about credibility are impugned as illogical or lacking in probative support. 79 Far from assisting the appellant, the decision in Appellant S106/2002 illustrates the difficulties of contending that the Tribunal's evaluation of the credibility of a witness, or the plausibility of particular pieces of evidence, involved jurisdictional error. The essence of the complaint in Appellant S106/2002 was that the Tribunal failed to consider the evidence as a whole, but first considered and disbelieved the evidence of the applicant without taking account of corroborating evidence, and then considered and rejected the corroboration because of the rejection of the applicant's evidence. Gleeson CJ said at 63 [12]-[13]: "In my view, all that the member was saying was that, for reasons already given at length, she found the applicant/appellant's story implausible, and in some important respects unbelievable, and that she also rejected the evidence of the corroborating witness, even though she had no separate reason to doubt his credibility other than the reasons that she had already given for rejecting the claim she was considering. The member could have expressed herself more clearly. It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness. Upon analysis, the complaint is that the Tribunal member did not have regard to the whole of the evidence before deciding whether she believed the applicant/appellant, and did not properly assess the significance of the evidence of the corroborating witness. I am not persuaded that this criticism is justified." See also McHugh and Gummow JJ at 70 [49] and 71 [51] [52]. 80 Here, the statements by the Tribunal which are attacked as illogical form part of the Tribunal's overall assessment of the appellant's evidence, including her credibility and the plausibility of her claims to have a well-founded fear of persecution. That assessment was supported by other considerations which are not impugned as illogical, such as the Tribunal's reference to the appellant's vague and unconvincing identification of those who threatened or harassed her as right wing militants and/or religious extremists. 81 Hartnett FM concluded that none of the impugned findings was illogical, or indicated that the Tribunal had failed to properly exercise its jurisdiction. As Gleeson CJ pointed out in Appellant S106/2002 , the description of reasoning as illogical or irrational may merely be an emphatic way of expressing disagreement with it. It is not enough that another Tribunal might not have made the impugned findings, or attached the same weight to them. As the Full Court (Heerey, Sundberg and Crennan JJ) said in NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52 at [27] , opinions can vary about what is inherently improbable or unacceptable as evidence of the fact, or what evidence makes sense, that is whether evidence is probative in relation to a particular fact. In the absence of perversity or manifest error, sufficient in each case to give rise to jurisdictional error, the Court cannot intervene.


case_title: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321


case_title: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402


case_title: NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235


case_title: W404/01A of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 255


case_title: VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286


case_text: Hartnett FM concluded that none of the impugned findings was illogical, or indicated that the Tribunal had failed to properly exercise its jurisdiction. As Gleeson CJ pointed out in Appellant S106/2002 , the description of reasoning as illogical or irrational may merely be an emphatic way of expressing disagreement with it. It is not enough that another Tribunal might not have made the impugned findings, or attached the same weight to them. As the Full Court (Heerey, Sundberg and Crennan JJ) said in NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52 at [27] , opinions can vary about what is inherently improbable or unacceptable as evidence of the fact, or what evidence makes sense, that is whether evidence is probative in relation to a particular fact. In the absence of perversity or manifest error, sufficient in each case to give rise to jurisdictional error, the Court cannot intervene.


case_outcome: followed

case_text: In Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd (No 2) (2007) 239 ALR 762 ( Visy No 2 ), Heerey J was asked to consider claims of litigation privilege made with respect to 216 ACCC documents, including the Hodgson Interview transcript now at issue: Visy No 2 at [6]. His Honour found that litigation was reasonably anticipated as at 15 December 2004 - that is, prior to the Hodgson interview on 17 December 2004: Visy No 2 at [78]-[93]. Heerey J also found that the documents and communications in question were generated for the dominant purpose of amassing and assessing evidence to be used in contemplated civil penalty proceedings for price fixing against Visy: Visy No 2 at [97]-[101]. The Full Court of this Court upheld the judgment on appeal: Visy Industries Holdings Pty Ltd v ACCC (2007) 161 FCR 122. 4 A preliminary question involves the relevance, if any, of the findings of fact made by Heerey J in Visy No 2 to these proceedings, given that his Honour had before him among the 216 challenged documents the same Hodgson Interview transcript now sought here. It is trite that, as a matter of common and statutory law, findings of fact in one judgment are inadmissible in a subsequent proceeding as against a non-party to the prior proceeding except, where relevant, to ascertain the parties to those proceedings and the issues raised in that litigation as disclosed in the reasons: National Mutual Life Association of Australasia Limited v Grosvenor Hill (Qld) [2001] FCA 237 ; (2001) 183 ALR 700 at [48] ; Evidence Act 1995 (Cth) s 91(1). However, the ACCC does not contend that I can or should simply rely on the facts found by Heerey J in deciding whether to uphold the ACCC's claim of litigation privilege. Rather, the primary submission of the ACCC is that the principle of stare decisis should lead me to reach the same result when the settled elements of litigation privilege are applied to the facts relating to the Hodgson Interview transcript which I must independently find based on the evidence before me.


case_text: Cadbury's primary contention is its second - that stare decisis does not apply because the evidence now before the Court that was not before Heerey J should give rise to different findings of fact and compel a different result. The contents of the stare decisis principle are not in dispute: e.g. Re Tyler; ex parte Foley [1994] HCA 25 ; (1994) 181 CLR 18 , 37-38 (per McHugh J) and Bristol-Myers Squibb Company v FH Faulding & Co Limited [2000] FCA 316 ; (2000) 97 FCR 524 at [148] , [158]-[160]. In fact, as we are all taught at law school, the more closely the facts of a subsequent case are aligned to those of an earlier case, the more compelling is the case for the application of stare decisis. 21 Cadbury's third challenge is limited only to the "dominant purpose" element of the privilege claim. Again, given the way in which I have addressed the issues raised in this proceeding, it is unnecessary to address this contention. However, for the sake of completeness, I will say a few words about it. Cadbury accepts that the Heerey J's finding with respect to the date from which litigation was anticipated was part of the ratio of the case, but disputes that dominant purpose was also part of the ratio. I do not accept that submission. In my view, Heerey J's finding as to dominant purpose was part of the ratio in Visy No 2 in that it was a necessary part of his Honour's decision. It is true that the "principal issue" before the Court in Visy No 2 was whether litigation could be said to have been reasonably anticipated by 15 December 2004: Visy No 2 at [2]. However, the overall question before Heerey J was whether the 216 documents, including the Hodgson Interview transcript, were protected from disclosure by litigation privilege. Although the date issue may have been the principal issue (in the sense that it was the most contentious and was the focus of argument), it was not the only issue necessary to the Court's decision to uphold the privilege claim. As noted earlier, there are at least two elements to a claim of litigation privilege, both of which must be satisfied in order to make good the claim. Had the Court not made a positive finding with respect to both in Visy No 2 , it could not have upheld the claim. As such, Cadbury's contention now that Heerey J's conclusion with respect to dominant purpose was not part of the ratio of the case must fail: see Bristol-Myers at [160] (per Finkelstein J) (considering that "the ratio of a case should at least include every ruling on a point of law that is treated by the judge as a necessary step in reaching his ultimate conclusion in a case"). 22 Furthermore, nothing that was said by the Full Court on appeal dissuades me from that view. Cadbury cites the reasons of Lander J as recording that the issue before the trial judge "was whether at the time particular documents came into existence legal proceedings were reasonably contemplated": Visy Holdings (2007) 161 FCR 222 at [123]. That quotation is taken out of context and does not accurately reflect Lander J's views as to the issues in the case. What Lander J actually described as the issues in the case before Heerey J is found earlier in his Honour's reasons (at [43]) (emphasis added): There were three issues for determination before Heerey J. The first was whether the ACCC's claim for legal professional privilege was validly made. This issue required a finding as to the date upon which it could be said that litigation was reasonably anticipated by the ACCC. The claim for privilege also raised the question whether the dominant purpose of the creation of the documents was for use in litigation as distinct from investigation. Heerey J found against the applicants and found that the documents were created at a time when litigation was reasonably anticipated and for the purpose of use in that litigation. The respondent filed a notice of contention claiming that Heerey J's order in this regard should be affirmed on the further ground that the documents were privileged having been brought into existence for the dominant purpose of obtaining legal advice in relation to the proceeding. Because leave to appeal was refused, the notice of contention does not need to be considered. The second issue required consideration as to whether certain documents relating to the grant by the ACCC of immunity and/or leniency to Amcor were discoverable at all or only relevant as to credit. Justice Heerey found that the documents were not discoverable. The third issue was in relation to the pleadings and the applicants' amended defence, in particular, paras 222 (aa)-(ad). Justice Heerey struck out this part of the applicants' defence. In other words, Lander J (with whom Moore J agreed) explicitly found that the question of dominant purpose was an issue before Heerey J and necessary to his Honour's resolution of the application. I am therefore of the view that the reasons of Lander J in fact support the view that Heerey J's finding in regards to dominant purpose was part of the ratio of the case. 23 For the foregoing reasons, the applicant's notice of motion dated 3 October 2008 will be dismissed.


case_outcome: applied

case_text: The ACCC opposes Cadbury being granted leave to uplift the transcript on the basis that the Hodgson Interview transcript is subject to a claim of legal professional privilege - specifically, litigation privilege - held by the ACCC. I previously considered at some length, in these proceedings, the legal principles and elements supporting a legal professional privilege claim: Cadbury Schweppes Pty Ltd v Amcor Ltd (2008) 246 ALR 137 ( Cadbury I ). In Cadbury I , I noted that it is settled that for a claim of litigation privilege to be upheld, the document or communication in question must have been made (1) in anticipation of (or during) litigation; and (2) for the dominant purpose of obtaining legal advice or evidence for the litigation: Cadbury I at [10]. I observed that there might be a third element of confidentiality, particularly with respect to communications with a third-party witness, but that that aspect of litigation privilege is still unsettled: Cadbury I at [10]. Due to a concession on the part of Cadbury, I did not need to consider the confidentiality question further in that decision.


case_text: A preliminary question involves the relevance, if any, of the findings of fact made by Heerey J in Visy No 2 to these proceedings, given that his Honour had before him among the 216 challenged documents the same Hodgson Interview transcript now sought here. It is trite that, as a matter of common and statutory law, findings of fact in one judgment are inadmissible in a subsequent proceeding as against a non-party to the prior proceeding except, where relevant, to ascertain the parties to those proceedings and the issues raised in that litigation as disclosed in the reasons: National Mutual Life Association of Australasia Limited v Grosvenor Hill (Qld) [2001] FCA 237 ; (2001) 183 ALR 700 at [48] ; Evidence Act 1995 (Cth) s 91(1). However, the ACCC does not contend that I can or should simply rely on the facts found by Heerey J in deciding whether to uphold the ACCC's claim of litigation privilege. Rather, the primary submission of the ACCC is that the principle of stare decisis should lead me to reach the same result when the settled elements of litigation privilege are applied to the facts relating to the Hodgson Interview transcript which I must independently find based on the evidence before me.


case_text: In other words there was, as often happens in communications between two parties, a disconnect between the dominant purposes of each party for engaging in the communication. The question is whose purpose is relevant. In Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 ; (2004) 136 FCR 357 , it was made clear (at [35]) that the relevant purpose is that of the person who procured the creation of the communication or document. In this case, the creation of both the communication (the Hodgson Interview) and the document (transcript) containing that communication was procured by the ACCC; that the ACCC had to offer and discuss immunity for Hodgson in order to get them was incidental to fulfilment of that dominant purpose. The correspondence and memoranda relied on by Cadbury, while illuminating the concerns of the interviewee Hodgson and the ACCC discussions of the means by which to meet those concerns and obtain the information sought, do not support a finding that the ACCC's dominant purpose was other than to investigate and prosecute suspected cartel conduct. 14 In my view, a review of all the documents identified by Cadbury confirms that the investigative purpose acknowledged by Cadbury (albeit incompletely) was in fact the dominant one. That is to say, as Cadbury accepted in its written submissions, the ACCC sought an interview of Hodgson to further its investigation; but that statement of purpose is not complete without answering the questions "investigation of what" and "to what end." 15 A letter from the ACCC to Hodgson's lawyers dated 13 December 2004 and attached to an affidavit of a solicitor for Cadbury answers the first question. It indicates that the ACCC at that time was investigating "alleged cartel conduct engaged in by Amcor Limited and other corporations in relation to the supply of corrugated fibreboard containers." A letter from the ACCC to Hodgson's lawyer dated 16 December 2004 and attached to an affidavit of a solicitor for the ACCC answers the second question. (Cadbury did not argue that Hodgson never received the 16 December letter, but objected to it on the basis that there was no evidence that it was sent on 16 December rather than provided to Hodgson at the interview on 17 December. However, I do not consider that anything turns on whether Hodgson received it on 16 December or instead 17 December.) The 16 December letter indicates that the ACCC sought information from Hodgson for the purpose of "the investigation and any ensuing Court proceedings," including execution of affidavits and giving of evidence in Court proceedings. In other words, the letter shows that the dominant purpose of the interview was for the ACCC to obtain and assess evidence for Court proceedings then in contemplation.


case_text: In Ryan v The Queen [2001] HCA 21 ; (2001) 206 CLR 267 , McHugh J quoted with approval the following views of the eminent US jurist Dean Roscoe Pound (at [58]) (emphasis added): A single decision as an analogy, as a starting point to develop a principle, is a very different thing from the decision on a particular state of facts which announces a rule. When the court has that same state of facts before it, unless there is some very controlling reason, it is expected to adhere to the former decision. But when it gives [sic] further and endeavors to formulate a principle, stare decisis does not mean that the first tentative gropings for the principle ... are of binding authority. (Emphasis added) 8 As noted earlier, the Court has before it now one of the same documents as was before Heerey J in Visy No 2 and in respect of which again a claim of litigation privilege is made. Particularly where his Honour's judgment accepting the privilege claim over the Hodgson Interview transcript was upheld by the Full Court, I would expect to be presented with some very compelling reasons for departing from it. Cadbury has pointed to a number of contemporaneous documents comprising internal ACCC memoranda and notes as well as correspondence between the ACCC and Hodgson. It contends that this evidence, much of which was not before Heerey J, leads or should lead to different findings of fact and this provides a compelling reason to depart from the view taken in Visy No 2 . I disagree. 9 It is not necessary to recite the contents of the documents cited by Cadbury in detail; it suffices to say that they were put forward to establish (and do establish) two factual propositions: (1) that the decision to interview Hodgson was made prior to 15 December 2004; and (2) there was a great deal of discussion regarding whether and on what terms Hodgson would receive immunity in exchange for cooperation in the investigation and any subsequent legal proceedings ("the Immunity Question"). With respect to the first point, Cadbury did not appear to quibble with the proposition that the "in anticipation of litigation" prong of the privilege test turns on when the communication or document was actually generated rather than when the decision to create it was made. Rather, Cadbury contended that the evidence that the decision was taken prior to the date when litigation was found by Heerey J to have been reasonably anticipated supported the proposition that the interview could not have been made for the dominant purpose of the litigation. However that may be, I am independently satisfied based on Cadbury's own evidence, including the letters of 13 and 16 December 2004 (referred to below), that litigation was reasonably anticipated no later than 17 December 2004, the date of the Hodgson Interview. 10 On the Immunity Question, Cadbury made the following written and oral submissions regarding dominant purpose based on that evidence - namely, that there was no dominant purpose of the Hodgson interview, but rather a variety of purposes including: (1) to perform the interview directed by senior officials of the ACCC on 13 December 2004; (2) to obtain information from Hodgson to assist the investigation; (3) to obtain Hodgson's agreement to the conditions set out in the ACCC' s 16 December 2004 letter offering conditional immunity in exchange for cooperation; and (4) to confirm Hodgson's understanding that the offer of immunity was conditional. The first purpose described by Cadbury may be rejected out of hand - while the interview may have been conducted at the behest of senior ACCC personnel, one must of course ask why they made that order. 11 The third and fourth purposes ascribed to the interview by Cadbury must be rejected because they reflect a misapprehension of how dominant purpose is to be assessed. I would be prepared to accept that the correspondence shows that the dominant purpose (and possibly even sole purpose) of Hodgson in attending the 17 December 2004 interview was to obtain immunity. It is therefore unsurprising that the documents would reflect an understanding of this point by the ACCC and an attempt to respond to the interests of the interviewee.


case_text: Cadbury's primary contention is its second - that stare decisis does not apply because the evidence now before the Court that was not before Heerey J should give rise to different findings of fact and compel a different result. The contents of the stare decisis principle are not in dispute: e.g. Re Tyler; ex parte Foley [1994] HCA 25 ; (1994) 181 CLR 18 , 37-38 (per McHugh J) and Bristol-Myers Squibb Company v FH Faulding & Co Limited [2000] FCA 316 ; (2000) 97 FCR 524 at [148] , [158]-[160]. In fact, as we are all taught at law school, the more closely the facts of a subsequent case are aligned to those of an earlier case, the more compelling is the case for the application of stare decisis.


case_text: In Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd (No 2) (2007) 239 ALR 762 ( Visy No 2 ), Heerey J was asked to consider claims of litigation privilege made with respect to 216 ACCC documents, including the Hodgson Interview transcript now at issue: Visy No 2 at [6]. His Honour found that litigation was reasonably anticipated as at 15 December 2004 - that is, prior to the Hodgson interview on 17 December 2004: Visy No 2 at [78]-[93]. Heerey J also found that the documents and communications in question were generated for the dominant purpose of amassing and assessing evidence to be used in contemplated civil penalty proceedings for price fixing against Visy: Visy No 2 at [97]-[101]. The Full Court of this Court upheld the judgment on appeal: Visy Industries Holdings Pty Ltd v ACCC (2007) 161 FCR 122.


case_text: I make the following rulings in relation to each of the documents or classes of documents sought by the applicant having regard to the provisions of O 15 r 8. I accept that the language of the Rule allows that additional discovery may be ordered on the basis that it may lead to a train of inquiry: Spyer v Cuddles 'N' Mum (Franchise) Pty Ltd (No 3) [2002] FCA 1563. It is not appropriate, as a matter of routine, to require a wider range of discovery under O 15 r 8. In this respect I do not accept that additional discovery under the so-called Peruvian Guano test is routinely available. By that I refer to the test mentioned in Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55. 8 The rulings which follow refer to the classes of documents in relation to which discovery has not been given. They are as follows: Paragraph in the Motion Ruling 1(a) Discovery allowed. 1(c) Discovery allowed. 1(d) Discovery declined chain of inquiry justification insufficient. 1(e) Discovery declined class of documents not defined by reference to relevance. Chain of inquiry insufficient. 2(a) Discovery allowed, limited to documents evidencing the purchase and/or payment by the second respondent for product labels for the sale of automotive products exported by the second respondent to the sixth respondent and/or Gold Leaf Products Co Ltd for the period 12 February 2004 to 31 January 2005. 2(b) Discovery declined relevance not established. 2(d) Discovery allowed. 2(e) Discovery declined relevance not established. 2(f) Discovery allowed, limited to labels proof read at the meeting of 1 March 2004. 2(i) Discovery declined class not defined by reference to criteria of relevance. 2(j) Discovery declined class not defined by reference to criteria of relevance. 2(k)(i), (ii), (viii) to (xi) Discovery declined, relevance not established. 2(l) Discovery allowed. 2(n) Discovery declined claim not defined by criteria of relevance. 3(a) Discovery allowed. 3(b) Discovery allowed. 3(c) Discovery declined. 3(d) Discovery declined. 3(e) Discovery allowed. 4(a) Discovery allowed. 9 I will make orders to give effect to these rulings. I will not direct that the respondents revisit their earlier discovery with separate affidavits. The costs of the motion so far as it related to particular discovery will be costs in the cause. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 17 August 2007 Counsel for the Applicant: Mr G Rabe Solicitor for the Applicant: Stables Scott Counsel for the Respondent: Mr R Grayden Solicitor for the Respondent: Hammond Worthington Dates of Submissions: 23 and 31 July 2007 Date of Judgment: 17 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1259.html


case_title: Wolff v Donovan (1991) 29 FCR 480

case_text: The relevant principles were correctly applied by the learned Federal Magistrate. That is to say, he directed himself in accordance with the well-known test in Wren v Mahony [1972] HCA 5 ; (1972) 126 CLR 212 at 224 and 225 and also at 236. Reliance was also placed by the Federal Magistrate on the Full Court decision of this Court in Wolff v Donovan (1991) 29 FCR 480 at 481 and again at 486.


case_text: While it is clear that the applicant's first set of challenges to the initial decision of the tribunal was properly grounded, since he succeeded before Gyles J, the second challenges failed. The current challenge is a further attempt to attack the 2006 decision of the tribunal. For the reasons that I gave in SZGJY v Minister for Immigration & Citizenship [2008] FCA 888 , it is clear that the tribunal had no jurisdiction on the second application for review filed at the end of last year: see also Minister for Immigration v Thiyagarajah [2000] HCA 9 ; (2000) 199 CLR 343 at 355-356 [30] per Gleeson CJ, McHugh, Gummow and Hayne JJ.


case_title: SZGJY v Minister for Immigration & Citizenship [2008] FCA 888


case_text: It is manifest that the tribunal never had any jurisdiction to decide a subsequent application to review the 2001 decision of a delegate once the 2006 decision of the tribunal had been given and not set aside in the courts. That decision replaced the delegate's decision and it was the only relevantly operative decision in law: Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248 ; (2004) 139 FCR 344. 10 I am of opinion that the application should be dismissed. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 12 June 2008 Applicant: Appeared in person Solicitor for the First Respondent: P Snell, Sparke Helmore Date of Hearing: 8 May 2008 Date of Judgment: 8 May 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/886.html


case_text: principles applicable to the assessment of damages under s 115(2) of the Copyright Act were set out by Black CJ and Jacobson J in Aristocrat Technologies Australia Pty Ltd v DAP Services (Kempsey) Pty Ltd [2007] FCAFC 40 ; (2007) 157 FCR 564 at [23] ff. It is unnecessary to repeat what was said in that case, save for two relevant observations. First, in DAP Services , the Aristocrat companies claimed damages only upon one basis, namely, the value of lost sales calculated by reference to the report of a chartered accountant who attempted to calculate the loss of profits for each lost sale: see DAP Services at [30]. However, the claim for compensatory damages failed in DAP Services because the evidence did not establish that each sale by the respondents was at the expense of a new Aristocrat machine: see DAP Services at [31]. Second, it was suggested in DAP Services at [34]ff that there may have been other bases upon which damages could have been assessed. These included the possibility of finding that Aristocrat had lost some proportion of the sales made by the infringing respondents: see Sony Computer Entertainment Australia Pty Ltd v Stirling [2001] FCA 1852 at [8] per Emmett J. However, these alternatives were not open in DAP Services because there was no evidence to support the assessment of damages on those bases. In the present case, the Aristocrat companies contend that the appropriate measure of compensatory damages is the loss of profit that would have been made from the sale of second-hand or refurbished Aristocrat gaming machines by the Aristocrat companies, or the loss of profits on the sale of conversion kits. The evidence in support of that assessment was contained in the affidavits of Mr Irarrazaval and Mr Graham Ward, the Group Financial Controller of Aristocrat. Mr Irarrazaval's evidence dealt in some detail with the market for the sale of Aristocrat new and refurbished gaming machines to countries in South America. Evidence was given as to the volume of second-hand or refurbished gaming machines supplied by the Aristocrat companies to companies in South America during 2002 to 2007, and the prices at which Aristocrat second-hand or refurbished gaming machines were supplied in the South American market. Mr Irarrazaval gave evidence in relation to the market in a number of South American countries. In relation to Peru, Mr Irarrazaval said that notwithstanding the significant size of the gaming machine market, and the large number of Aristocrat gaming machines installed and operating across the various venues in Peru, the relevant member of the Aristocrat group of companies had difficulties selling Aristocrat gaming machines to customers between 2002 and 2006. Mr Irarrazaval attributed that difficulty to the high number of counterfeit gaming machines being sold in Peru at prices significantly below the prices at which the Aristocrat companies were able to offer genuine refurbished gaming machines. Mr Irarrazaval gave evidence as to the prices that were obtained by the respondents for sales in South America covering the period from 2002 to 2004 in respect of gaming machines recorded on "seized invoice spreadsheets". Whilst it is true that the Aristocrat companies have not established that all of those gaming machines were counterfeit, it is relevant to record that, as Mr Irarrazaval says, the amount obtained for those machines was around $US1000 to $US1500 per machine. He observed that this is lower than the price at which the Aristocrat companies sold their refurbished gaming machines into South America at that time, which was put at between $US3500 and $US4500 per unit. The principles upon which additional damages are awarded were discussed in DAP Services at [40]ff. It is not necessary to set out the principles in any detail. It is sufficient to say that the objectives include deterrence, and that an element of penalty is an accepted factor in the remedy. Also, the assessment of the amount to be rewarded is a somewhat imprecise exercise and the Court is to have regard, amongst other things, to the flagrancy of the infringement and the need to mark the Court's disapproval of the conduct. In the present case, as in DAP Services, the actions of the respondents demonstrate a cynical and flagrant exploitation of the Aristocrat companies' copyright. Although the number of infringing transactions was ultimately proved to be far less than the number claimed by the Aristocrat companies, it is plain that the respondents were engaged in a commercial exercise. Their actions were plainly flagrant and undertaken for commercial gain. The Aristocrat companies claimed that the true nature of the respondents' business was a large scale counterfeiting operation. They failed to make this good. But the statements made in the emails when considered with much of the materials seized on the Anton Piller raids show the willingness of the respondents to engage in counterfeiting when it suits their commercial purposes. There is no need for any proportionality between the amount of compensatory damages under s 115(2) and the amount of additional damages under s 115(4): DAP Services at [45]. I am also entitled to take into account the conduct of the respondents after the acts constituting the infringement. Accordingly, I am entitled to include in my calculation of additional damages the attitude of the respondents to this litigation, in which they vehemently denied any involvement in counterfeiting. For the reasons mentioned above, additional damages cannot be maintained against Tonita as it has not been established that Tonita was involved in any of the 54 impugned transactions. The amount of additional damages awarded in DAP Services was $200,000 against Vidtech and Mr Parry: see DAP Services at [53] and [116]. Here, the activities were on a scale which seems to me to be larger than that which existed in DAP Services. In addition, there are three groups of respondents. I have come to the view that I ought to award an amount of $450,000 for additional damages under s 115(4) against the Global respondents, the Impact respondents and Mr Allam, jointly and severally. Although Mr Allam was an independent contractor, he was intimately involved in the venture and there is no basis for awarding a lesser sum of additional damages against him. Damages were also sought for infringement of trade marks, breach of the provisions of the Trade Practices Act and passing off. However, these claims were pressed only to the extent that damages awarded for copyright infringement were inadequate.


case_text: is a fundamental principle of the law of torts that to maintain an action for conversion, the plaintiff must have either actual possession of the goods or the immediate right to possession at the time of the conversion: Penfolds Wines Proprietary Limited v Elliott [1946] HCA 46 ; (1946) 74 CLR 204 at 226-227; Associated Midland Corporation Ltd v Bank of New South Wales [1983] 1 NSWLR 533 at 549; F.A. Trindade, P. Cane & M. Lunney, The Law of Torts in Australia (4 th ed, 2007) at 209-210.


case_text: Branson J, at [38], and Kenny J, at [145], referred to the decision of a Full Court in Australasian Performing Right Association Limited v Jain (1990) 26 FCR 53. There, Sheppard, Foster and Hill JJ held at 61 that a "studied and deliberate course of action" in which a respondent had decided to ignore the applicant's rights and to allow a situation to develop which he must have known would be likely to result in an infringement, amounted to an authorisation. Jain was an authority on the question of the degree of control that was required to give rise to an authorisation prior to the enactment of s 36(1A) and s 101(1A). But as Kenny J observed at [140] and [146], that case emphasises the breadth of the concept of authorisation and that a failure to take reasonable steps to prevent an infringing act is a relevant consideration to a finding of authorisation. The degree of control, the nature of the relationship between the parties and the question of "reasonable steps" are now enshrined in s 36(1A)(a), (b) and (c), which I am required to take into account in determining whether the claims of "authorisation" are made out. Three separate tests have been stated. The first is the " Performing Right Society test", namely whether the director "directed or procured" the company's infringement. The second is the " Mentmore test", that is whether the director or officer "makes the tortious act his own" by deliberate, wilful and knowing pursuit of a course of conduct that was likely to constitute infringement: see the discussion of Finkelstein J in Root Quality Pty Ltd v Root Control Technologies Pty Ltd [2000] FCA 980 ; (2000) 177 ALR 231 at [123] ff.


case_outcome: distinguished

case_text: is there any substance in the submission that the respondents had an implied licence to exploit the copyright in those components. The position here is quite different from that which occurred in the well established authorities that have considered the question of implied licence to use copyright materials; see Beck v Montana Constructions Pty Ltd (1963) 5 FLR 298 ; Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55 ; (2006) 229 CLR 577.


case_text: it is sufficient if the circumstances give rise to a reasonable and definite inference; but if they produce conflicting inferences of equal degrees of probability so that the choice between them is a matter of conjecture, the allegation is not proved: Palmer v Dolman at [35], [36], [41]; Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5; Luxton v Vines [1952] HCA 19 ; (1952) 85 CLR 352 at 358 and other High Court authorities cited in Palmer v Dolman at [36]; see also The Trustees of the Property of Cummins v Cummins [2006] HCA 6 ; (2006) 227 CLR 278 at [34] .


case_text: I have said, the Aristocrat companies have the onus. Whether the standard is the balance of probabilities or the Briginshaw standard as was submitted by the respondents, there was nothing in the evidence adduced by Mr Coster which imposed any onus of proof on Global. To the extent that Global had any evidentiary onus, that was discharged by Mr Andrews' oral evidence and the documentary evidence to which I have referred. Although I have reached an adverse view of Mr Andrews' credit, it does not follow that I would reject all of his evidence as untruthful. It seems to me that Mr Andrews' evidence of the Play King transaction was consistent with the documentary evidence and I accept it. During the course of the hearing, the Aristocrat companies placed great weight on a bundle of business communications involving either the Global, Impact or Tonita respondents, or a combination of one or more of the groups of respondents. Second, although there is some difference in the authorities as to whether it is appropriate to describe the standard of proof under s 140 as the Briginshaw standard, the cases all recognise that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved: Qantas v Gama at [110] and [139]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 at [30] - [36] . Fourth, the position stated by the Full Court of the Federal Court exposes a difference of views on the question of whether the trier of fact must feel "an actual persuasion." Weinberg, Bennett and Rares JJ accepted that the Court must be so persuaded in Communications and Allied Services Union v ACCC at [31]. But that observation was based upon the statement of Dixon J in Briginshaw v Briginshaw [1938] HCA 34 ; [1938] 60 CLR 336 at 361-362. In Qantas v Gama at [123] and [139], Branson J (with whom French and Jacobson JJ expressed general agreement) considered that the Briginshaw test has been replaced by the provisions of s 140 , and should be avoided due to its tendency to mislead.


case_text: reason for the House of Lords' decision appears to be the absence of control over the actions of the purchasers and the possibility of legitimate use rather than the inevitability of infringement: see 1053-1055; see also CBS Inc v Ames Records & Tapes Ltd [1982] Ch 91 at 106 (per Whitford J). This is to be contrasted with the facts of the present case as is well illustrated by the email set out at [312]. Mr Allam was requested to provide game software and blank chips. I reject his denial that he knew the purpose to be the copying of the game software onto the chips in South America. It is true that Mr Allam had no real ability to control what took place in South America, but there was no possibility that the blank EPROMs were to be used for a legitimate purpose. It was inevitable that the EPROMs were to be used for the purpose of infringement. Moreover, there was other evidence which was indicative of unauthorised copying by the Tonita respondents. This was the existence of the Dataman software on the Loose HDD. Mr McKemmish's evidence that the Dataman software was operated on the Loose HDD gives rise to a very strong inference that the Tonita respondents used it to burn Aristocrat game software onto blank EPROMs: see [498]. When this evidence is taken into account, it makes more credible the evidence of Mr Channa that he saw Mr Allam burning EPROMs from an EPROM burning device: see [348].


case_text: position here is quite different from that which existed in CBS Songs Ltd v Amstrad Consumer Electronics PLC [1988] UKHL 15 ; [1988] AC 1013. There, the House of Lords held that the sale of a high speed twin-tape recorder capable of reproducing music cassettes onto blank tapes was not an authorisation of copyright infringement.


case_text: although there is some difference in the authorities as to whether it is appropriate to describe the standard of proof under s 140 as the Briginshaw standard, the cases all recognise that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved: Qantas v Gama at [110] and [139]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 at [30] - [36] .


case_title: Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55 ; (2006) 229 CLR 577


case_text: claim against the Tonita respondents is that they were engaged by the Global/Impact Joint Venture for reward, to supply services and to procure parts and equipment for the purposes of the joint venture and that they are "so personally involved in the commission of the unlawful act[s], that it is just that [they] should be rendered liable": Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 1242 ; (2005) 220 ALR 1 at [434] ; cf Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 ; (2006) 156 FCR 380 at [1] , [74], [161]. In Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 ; (2006) 156 FCR 380 , Kenny J and Branson J each endorsed a wide approach to the concept of "authorisation". French J agreed with the reasons given by each of them.


case_text: I have not been able to conduct a visual comparison of the infringing compliance plates with the Aristocrat companies' originals, the evidence is sufficient for me to infer that the test stated by the High Court in S.W. Hart & Co Proprietary Limited v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466 at 472, 478 and 479 is satisfied. The Tonita respondents had prior access to the copyright works. From the material before me going to infringement of compliance plates, in particular the evidence of Mr Parsons, I infer the elements of resemblance, actual use and causal connection. The onus then passed to the Tonita respondents to rebut the inference of copying but they failed to discharge that onus: Designers Guild Ltd v Russell Williams (Textiles) Ltd [2000] UKHL 58 ; [2001] All ER 700 at 708-9.


case_text: J cited the relevant passage from the decision of Tamberlin J with apparent approval in Foxtel Management Pty Ltd v The Mod Shop Pty Ltd [2007] FCA 463 ; (2008) 165 FCR 149 at [133] .


case_text: is true, as was submitted on behalf of the Aristocrat companies, that some of the explanations given by Mr Andrews were revealed under cross-examination to be unacceptable. This reflects upon Mr Andrews' credit but it does not make good the propositions for which the Aristocrat companies contend. Disbelief of a witness on his or her credit does not amount to positive evidence of the opposite of what is disbelieved: Gauci v Commissioner of Taxation of the Commonwealth of Australia [1975] HCA 54 ; (1975) 135 CLR 81 at 87; J. D. Heydon, Cross on Evidence (7 th Aust ed) at [17,600]. The data matching exercise must be considered on the basis of the quality of the evidence adduced by the Aristocrat companies, as the foundation upon which the exercise was conducted. The question of the quality or sufficiency of the evidence raises two separate sub-issues. The first is the evidence pertaining to the OLGR records which formed the basis for the production of the "orange" and "yellow" serial numbers.


case_text: authorities go so far as to establish that a bailment does not necessarily impose upon a bailee the obligation of redelivering the identical object that was bailed: Motor Mart v Webb at 781; Harding v Commissioner of Inland Revenue [1977] 1 NZLR 337 at 340.


case_text: also follows in my view that the Aristocrat companies have failed to establish that Global knew or ought to have known of any infringement of its copyright in the components of the machines identified by Mr Coster. I will address the knowledge question in more detail when I deal with the "pattern of trade" and Jones v Dunkel submissions made by Mr Cobden. Mr Coster's evidence was that the local regulations in Peru require games and artwork on gaming machines to be in Spanish. He also gave evidence that, in his experience, there is a very significant problem of machines being "rebirthed" in Peru with the insertion of Spanish games and Spanish artwork. The Aristocrat companies submitted that I was entitled to draw an inference of knowledge from the failure of Global to call Mr Birks to give evidence: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298. I reject this submission for the following reasons. First, the rule in Jones v Dunkel only applies where a party is required to explain or contradict something: Schellenberg v Tunnel Holdings Pty Limited [2000] HCA 18 ; (2000) 200 CLR 121 at [51] ; J.D. Heydon, Cross on Evidence (7 th Aust ed, 2004) at [1215], pp 41-42. The Aristocrat companies had the burden of proving the elements of secondary infringement. Once it appeared that the machines had been shipped from Mr Birks' premises, it was for the Aristocrat companies to establish the requisite level of knowledge on the part of Global. But absent any evidence of infringement by Mr Birks, or indeed any suggestion of such to Mr Andrews, the rule in Jones v Dunkel has no application. Second, the rule cannot be employed to fill gaps in the evidence or to convert conjecture and suspicion into inference: Cross on Evidence at [1215], p 41. Yet this is precisely what Aristocrat seeks to do. Third, even if the rule were applicable, the appropriate inference is that Mr Birks' evidence would not have assisted Global's case: Jones v Dunkel at 308, 312, 321. The rule could therefore not be elevated to the level at which the Aristocrat companies sought to put it, namely to draw an inference that Mr Birks' evidence would have been damaging to Global's case. It is true that Mr Birks swore an affidavit which was filed by Global and that a forensic decision was ultimately taken by Global not to call Mr Birks to give evidence. But the mere filing of an affidavit, and even a decision taken late in the trial not to rely on that evidence, cannot alter the effect of the three propositions which I have set out above as to the inapplicability or inutility of the rule in relation to the Play King transaction.


case_title: The Koursk [1924] P 140

case_text: J referred to Australian and English authority which support the abovementioned statement of principle including the decision of the High Court in Thompson v Australian Capital Television Pty Limited [1996] HCA 38 ; (1996) 186 CLR 574 and the seminal English case, The Koursk [1924] P 140.


case_text: of the obligations of a bailee is to redeliver the goods to the bailor. The nature of the duty varies according to the circumstances in which and the purpose for which the goods are delivered to the bailee: Morris v C. W. Martin & Sons Ltd [1966] 1 QB 716 at 731. In Morris v C. W. Martin , Diplock LJ at 732, and Salmon LJ at 738 observed that one of the common law duties imposed upon a bailee is not to intentionally convert the goods to his or her own use. Yet this is precisely what the Behong Agreement required Behong to do. It may be true that Behong was contractually bound not to resell the materials in their unscrapped form, but that does not undermine the proposition that the fundamental commercial purpose of the Behong Agreement, as exemplified in the terms to which I have referred, was for Behong to collect and scrap or destroy the materials. Nothing could be further from the concept of bailment. The evidence of the dealings between Behong and Messrs Fisher and Allam indicate knowledge on the part of the Tonita respondents that their purchases of the unscrapped materials may have amounted to a breach of contract. However, that is irrelevant to the claim for conversion. No claim of inducement of breach of contract was made.


case_text: as Turner J observed in Motor Mart Limited v Webb [1958] NZLR 773 at 784-785, it would be a mistake to conclude that the transaction of bailment is not capable of adaptation to modern commercial circumstances. Indeed, his Honour said: I decline to assume that, under the pressures and stresses of modern legal necessity, some new mutation may not burst into flower, of a quality to startle the author of the Institutes were he privileged to behold it. Nevertheless, the Behong Agreement cannot be such a mutation. This is evident from the nature of the obligations entailed by the relationship of bailment. The authorities go so far as to establish that a bailment does not necessarily impose upon a bailee the obligation of redelivering the identical object that was bailed: Motor Mart v Webb at 781; Harding v Commissioner of Inland Revenue [1977] 1 NZLR 337 at 340.


case_text: authorities which were analysed by the Full Courts in arriving at the conclusion stated in the second proposition included, in particular, the decisions of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 ; (1992) 110 ALR 449 and Rejfek v McElroy [1965] HCA 46 ; (1965) 112 CLR 517. Fifth, where an allegation is to be proved from circumstantial evidence, it is sufficient if the circumstances raise a more probable inference in favour of the allegation. Where the allegation is a serious one, the inquiry is to take account of the requirements of s 140(2)(c) , and what was said by the High Court in Neat Holdings about the need for caution in making such a finding: Palmer v Dolman at [39], [47]. To the extent that the claims are based upon circumstantial evidence, they will not be made out unless I am satisfied that they have been proved on the balance of probabilities, taking due account of what was said in Neat Holdings. The Aristocrat companies claim that the respondents are liable for copyright infringement, either as joint tortfeasors or on the ground that one or other of them has authorised the copyright infringement carried out by the others. The legal principles applicable to each of these separate heads of liability have been considered in some detail by the authorities. I do not consider that there is any real dispute between the parties as to those principles, but I will refer to them briefly below.


case_text: the Court of Appeal of NSW has accepted that the balance of probabilities test stated in s 140 requires the Court to reach a level of actual persuasion: Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [55] ; Seltsam Pty Ltd v McGuiness [2000] NSWCA 29 ; (2000) 49 NSWLR 262 at [136] . However, the learned editor of Odgers, Uniform Evidence Law (8 th ed, 2009) observes at [1.4.100] that: It is difficult to see how the proposition that "actual persuasion" is required can stand under [s 140 of] the Act [...].


case_title: Palmer v Dolman [2005] NSWCA 361

case_text: the standard of proof which is required in a civil case is the balance of probabilities, but the Court should not determine whether it is so satisfied until the final stage of the reasoning process, taking into account the matters referred to in s 140(2): Qantas Airways Ltd v Gama [2008] FCAFC 69 ; (2008) 167 FCR 537 at [110] and [139]; Palmer v Dolman [2005] NSWCA 361 at [40] - [41] . Fifth, where an allegation is to be proved from circumstantial evidence, it is sufficient if the circumstances raise a more probable inference in favour of the allegation. Where the allegation is a serious one, the inquiry is to take account of the requirements of s 140(2)(c) , and what was said by the High Court in Neat Holdings about the need for caution in making such a finding: Palmer v Dolman at [39], [47]. Sixth, it is sufficient if the circumstances give rise to a reasonable and definite inference; but if they produce conflicting inferences of equal degrees of probability so that the choice between them is a matter of conjecture, the allegation is not proved: Palmer v Dolman at [35], [36], [41]; Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5; Luxton v Vines [1952] HCA 19 ; (1952) 85 CLR 352 at 358 and other High Court authorities cited in Palmer v Dolman at [36]; see also The Trustees of the Property of Cummins v Cummins [2006] HCA 6 ; (2006) 227 CLR 278 at [34] .


case_text: Cobden's fourth and fifth points related to the respondents' argument under s 135 of the Evidence Act . In his fourth submission, Mr Cobden drew the Court's attention to the test of unfair prejudice under s 135 , as defined by Papakosmas v the Queen [1999] HCA 37 ; (1999) 196 CLR 297 at 325, which envisaged a danger that the fact finder may use the evidence on an improper, perhaps emotional, basis; that is on a basis logically unconnected with the issues in the case. Mr Cobden argued that the respondents had failed to clearly articulate the basis upon which s 135 had been invoked, and in any case, the evidence objected to did not meet the test set out in Papakosmas. Finally, Mr Cobden rejected the analogy drawn by the respondents between the role of the independent computer expert and that of the independent solicitor in the carrying out of Anton Piller orders. He argued that the independent computer expert is not an officer of the Court and is therefore not under the same obligations as the independent solicitor. He also referred to several Federal Court practice directions and practice notes in which the role of the independent solicitor is significantly more regulated than that of the independent computer expert. 9.5.5.1.3 ADMISSIBILITY OF MR MCKEMMISH'S EVIDENCE The view that I came to after hearing the submissions of the parties was that, whilst it is undesirable for a person who has occupied the role of an independent expert for the purpose of an Anton Piller order to then give evidence as an expert witness, I did not consider that the submissions that had been put before me demonstrated that it was an abuse of process. Moreover, the undesirability of Mr McKemmish giving evidence could have been pointed to at any time after 20 December 2007 but was not, either in correspondence between the parties or in directions hearings.


case_text: is a fundamental principle of the law of torts that to maintain an action for conversion, the plaintiff must have either actual possession of the goods or the immediate right to possession at the time of the conversion: Penfolds Wines Proprietary Limited v Elliott [1946] HCA 46 ; (1946) 74 CLR 204 at 226-227; Associated Midland Corporation Ltd v Bank of New South Wales [1983] 1 NSWLR 533 at 549; F.A. Trindade, P. Cane & M. Lunney, The Law of Torts in Australia (4 th ed, 2007) at 209-210.


case_text: the standard of proof which is required in a civil case is the balance of probabilities, but the Court should not determine whether it is so satisfied until the final stage of the reasoning process, taking into account the matters referred to in s 140(2): Qantas Airways Ltd v Gama [2008] FCAFC 69 ; (2008) 167 FCR 537 at [110] and [139]; Palmer v Dolman [2005] NSWCA 361 at [40] - [41] . Second, although there is some difference in the authorities as to whether it is appropriate to describe the standard of proof under s 140 as the Briginshaw standard, the cases all recognise that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved: Qantas v Gama at [110] and [139]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 at [30] - [36] . Fourth, the position stated by the Full Court of the Federal Court exposes a difference of views on the question of whether the trier of fact must feel "an actual persuasion." Weinberg, Bennett and Rares JJ accepted that the Court must be so persuaded in Communications and Allied Services Union v ACCC at [31]. But that observation was based upon the statement of Dixon J in Briginshaw v Briginshaw [1938] HCA 34 ; [1938] 60 CLR 336 at 361-362. In Qantas v Gama at [123] and [139], Branson J (with whom French and Jacobson JJ expressed general agreement) considered that the Briginshaw test has been replaced by the provisions of s 140 , and should be avoided due to its tendency to mislead.


case_text: determining whether an alleged "infringer" has the requisite knowledge under s 38 of the Copyright Act , regard may be had to the "knowledge, capacity and circumstances of the particular defendant": Raben Footwear Pty Ltd v Polygram Records Inc (1997) 75 FCR 88 at 91 per Burchett J; see also at 97 per Tamberlin J, at 104 per Lehane J. Raben Footwear was concerned with the construction and effect of ss 102 and 103 of the Copyright Act which contain the same element of knowledge as s 38 , namely "knew or ought reasonably to have known". Accordingly, the same approach may be adopted on this question in the present case. Mr Cobden's submission that knowledge could be inferred from Global's "pattern of trade" rested upon the fact that the Play King transaction was the twelfth in the list of 54 transactions identified by the Aristocrat companies. However, in my view, this submission must be rejected for the following reasons. Third, there was no evidence in the present case of the type which resulted in a finding of constructive knowledge in Raben Footwear . In that case, the importer made inquiries from the manufacturer as to whether all copyright conditions had been met but received only a guarded and limited assurance: see Raben Footwear at 92.


case_text: authorities which were analysed by the Full Courts in arriving at the conclusion stated in the second proposition included, in particular, the decisions of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 ; (1992) 110 ALR 449 and Rejfek v McElroy [1965] HCA 46 ; (1965) 112 CLR 517.


case_text: separate tests have been stated. The first is the " Performing Right Society test", namely whether the director "directed or procured" the company's infringement. The second is the " Mentmore test", that is whether the director or officer "makes the tortious act his own" by deliberate, wilful and knowing pursuit of a course of conduct that was likely to constitute infringement: see the discussion of Finkelstein J in Root Quality Pty Ltd v Root Control Technologies Pty Ltd [2000] FCA 980 ; (2000) 177 ALR 231 at [123] ff. The third test was formulated by Finkelstein J in Root Quality at [146]. The test is that the director's conduct is such that: ... he was so personally involved in the commission of the unlawful act that it is just that he should be rendered liable.


case_text: the rule in Jones v Dunkel only applies where a party is required to explain or contradict something: Schellenberg v Tunnel Holdings Pty Limited [2000] HCA 18 ; (2000) 200 CLR 121 at [51] ; J.D. Heydon, Cross on Evidence (7 th Aust ed, 2004) at [1215], pp 41-42.


case_title: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29 ; (2000) 49 NSWLR 262


case_text: it was suggested in DAP Services at [34]ff that there may have been other bases upon which damages could have been assessed. These included the possibility of finding that Aristocrat had lost some proportion of the sales made by the infringing respondents: see Sony Computer Entertainment Australia Pty Ltd v Stirling [2001] FCA 1852 at [8] per Emmett J.


case_text: I have not been able to conduct a visual comparison of the infringing compliance plates with the Aristocrat companies' originals, the evidence is sufficient for me to infer that the test stated by the High Court in S.W. Hart & Co Proprietary Limited v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466 at 472, 478 and 479 is satisfied. The Tonita respondents had prior access to the copyright works. From the material before me going to infringement of compliance plates, in particular the evidence of Mr Parsons, I infer the elements of resemblance, actual use and causal connection. The onus then passed to the Tonita respondents to rebut the inference of copying but they failed to discharge that onus: Designers Guild Ltd v Russell Williams (Textiles) Ltd [2000] UKHL 58 ; [2001] All ER 700 at 708-9.


case_title: Thompson v Australian Capital Television Pty Limited [1996] HCA 38 ; (1996) 186 CLR 574


case_text: it is sufficient if the circumstances give rise to a reasonable and definite inference; but if they produce conflicting inferences of equal degrees of probability so that the choice between them is a matter of conjecture, the allegation is not proved: Palmer v Dolman at [35], [36], [41]; Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5; Luxton v Vines [1952] HCA 19 ; (1952) 85 CLR 352 at 358 and other High Court authorities cited in Palmer v Dolman at [36]; see also The Trustees of the Property of Cummins v Cummins [2006] HCA 6 ; (2006) 227 CLR 278 at [34] .


case_text: Universal Music Australia Pty Ltd v Cooper [2005] FCA 972 ; (2005) 150 FCR 1 at [135] , Tamberlin J pointed out that it follows from the remarks of Gummow J in WEA International that: ... there must be something in the nature of concerted action or agreed common action. It is not necessary that there must be an explicitly mapped out plan with the primary offenders. Tacit agreement between the parties is sufficient ... .


case_text: claim against the Tonita respondents is that they were engaged by the Global/Impact Joint Venture for reward, to supply services and to procure parts and equipment for the purposes of the joint venture and that they are "so personally involved in the commission of the unlawful act[s], that it is just that [they] should be rendered liable": Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 1242 ; (2005) 220 ALR 1 at [434] ; cf Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 ; (2006) 156 FCR 380 at [1] , [74], [161]. Kenny J said in Cooper at [161] that she agreed with the test stated by Finkelstein J. So did Wilcox J in Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 1242 ; (2005) 220 ALR 1 at [434] . He went on to add a qualification, that the person need not be a director of the company.


case_text: Cooper at [136], Kenny J observed that s 101(1A) of the Copyright Act (which corresponds to the current s 36(1A)) is premised on the concept of "authorisation" developed by the High Court in University of New South Wales v Moorhouse [1975] HCA 26 ; (1975) 133 CLR 1. Moorehouse is authority for the proposition that "authorisation" means "sanction, approve, countenance"; express or formal permission is not required: per Gibbs J at 12-13; per Jacobs J at 20-21. Gibbs J said at 13: ... a person who has under his control the means by which an infringement of copyright may be committed such as a photocopying machine and who makes it available to other persons, knowing, or having reason to suspect, that it is likely to be used for the purpose of committing an infringement, and omitting to take reasonable steps to limit its use to legitimate purposes, would authorize any infringement that resulted from its use. Kenny J also referred in Cooper to the observations of Gummow J in WEA International Inc v Hanimex Corporation Limited (1987) 17 FCR 274 at 285-286. Gummow J there pointed to the broad concept of "authorisation" accepted by the High Court in Moorhouse.


case_text: J also referred in Cooper to the observations of Gummow J in WEA International Inc v Hanimex Corporation Limited (1987) 17 FCR 274 at 285-286. Gummow J there pointed to the broad concept of "authorisation" accepted by the High Court in Moorhouse. As Gummow J explained in WEA International at 283, infringement of copyright statutes are considered tortious, so as to make applicable the common law principles of liability of joint tortfeasors. It is not sufficient to establish a claim of joint liability that two or more persons assisted or concurred in or contributed to a tortious act; what is required is that there be "some common design": WEA at 283. In Universal Music Australia Pty Ltd v Cooper [2005] FCA 972 ; (2005) 150 FCR 1 at [135] , Tamberlin J pointed out that it follows from the remarks of Gummow J in WEA International that: ... there must be something in the nature of concerted action or agreed common action. It is not necessary that there must be an explicitly mapped out plan with the primary offenders. Tacit agreement between the parties is sufficient ... . In WEA International at 283, Gummow J pointed out that where the infringer is a corporation, questions often arise as to the degree of involvement on the part of directors necessary for them to be rendered personally liable. He observed that this question is not answered by the principles which govern "authorisation" and joint tortfeasance. Rather, recourse is to be had to the authorities which explain the circumstances in which a director or officer will be personally liable for the torts of the corporation. It is those authorities which prompted Kenny J to say in Cooper at [160] that the law concerning the liability of directors and officers for corporate wrongdoing is unclear. As Kenny J said in Cooper at [161], no Full Court has settled which of the tests is correct. However, I do not need to consider the question because, in my view, it is essential to recognise that the debate in the authorities as to the test to be applied to the liability of directors or officers for the wrongs of the corporation is a different question from that which applies to the question of liability for "authorisation" or joint tortfeasance. This was what Gummow J pointed out in WEA International at 283. Subject to the observations I have made about Mr Channa, it seemed to me that the witnesses called by the Aristocrat companies were, generally speaking, truthful. They made concessions where appropriate and, apart from specific matters to which I have referred in the course of these reasons, I accept their evidence. The respondents suggested that Mr Juan Pablo Irarrazaval, the General Business Manager of Latin America for ATI, was not a witness of truth. Mr Irarrazaval's evidence dealt principally with the market for gaming machines, including second hand machines, in South America.