case_text: The appellant complained that the Magistrate imposed on it the burden of establishing that it had a licence to use the source code, whereas the burden lay on the respondent to show that the appellant did not have such a licence. It relied on Avel v Multicoin Amusements Pty Ltd [1990] HCA 58 ; (1991) 171 CLR 88 at 94-95. However all that was there decided was that the onus of proving the absence of the licence of the owner of copyright in relation to an issue of infringement under s 37 or s 38 of the Act lies on the party asserting infringement. That is because the absence of such licence constitutes an element of the wrong of infringement under those sections. The present case is not for infringement of copyright, and the onus submission fails.


case_outcome: distinguished

case_text: The same onus submission was made in relation to defects the appellant submitted existed in the program. The respondent disputed their existence. The appellant contended that the burden was on the respondent to prove there were no defects. Reliance was placed on TSB Retail Systems Pty Ltd v 3Fold Resources Pty Ltd (No 3) (2007) 72 IPR 492 at [125]. That was an infringement case. One of the defences was that the respondent was authorised to reproduce the drawings there in question. Finkelstein J said that the copyright owner had the onus of proving the absence of authorisation "for that is an element of the cause of action for copyright infringement". 81 The burden of proving the existence of defects remained with the appellant. The Magistrate was not satisfied that there were defects. Her Honour considered this issue in detail at [61] to [66] of her reasons. No error has been shown in her treatment of it. 82 The appeal must be dismissed with costs. I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate: Dated: 20 June 2008 Counsel for the Appellant: R Dean Solicitor for the Appellant: R & G Lawyers Counsel for the Respondent: M Rivette Solicitor for the Respondent: Middletons Date of Hearing: 2 June 2008 Date of Judgment: 20 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/938.html


case_outcome: applied

case_text: The parties were basically in agreement as to the law to be applied in answering this question. In Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1 ; (1986) 160 CLR 16 at 24 Mason J said: A prominent factor in determining the nature of the relationship between a person who engages another to perform work and the person so engaged is the degree of control which the former can exercise over the latter .... But the existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of this Court has been to regard it merely as one of a number of indicia which must be considered in the determination of that question .... Other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee. 13 The cases have identified many indicia, in addition to those to which Mason J referred, that are relevant to the inquiry. See, for example, Vabu Pty Ltd v Commissioner of Taxation (1996) 33 ATR 537 at 538 and D & D Tolhurst Pty Ltd v Commissioner of State Revenue (1997) 38 ATR 1001 at 1013-1014. 14 The Magistrate first instructed herself in accordance with the relevant authorities, including those referred to above. She then noted various indicia relevant to the characterisation process. They included that the respondent was a sole operator, had an ABN, sent invoices which included GST, used his own motor vehicle and secretarial facilities without expenses or allowances from the appellant, was at liberty to take other work, worked at home without supervision, and attended meetings with the appellant's clients without the appellant being present. Her Honour also recorded that the appellant did not advise the Tax Office that the respondent was its employee and did not deduct PAYE. Nor was the respondent provided with sick leave, annual leave or superannuation. The Magistrate referred to other indicia, pointing one way or the other. See [16] to [54]. 15 The appellant summarised its complaints about the Magistrate's characterisation of the respondent's work status in three propositions: (a) her Honour was incorrect in deciding that the indicia she relied upon were the correct set of indicia and were exhaustive of the determination of that issue; (b) her Honour ignored or gave little or no regard to concrete written expressions by the respondent of his intentions as to the nature and terms of "the employment"; (c) her Honour gave no weight or no sufficient weight to (i) the nature of the relationship between the parties, including industry practice, and (ii) "implications that should arise as a consequence of the need to give business efficacy to the agreement". 16 In a comprehensive and detailed set of reasons on this issue, covering sixteen pages, the Magistrate dealt with many matters other than those to which she ultimately accorded particular weight, including those the subject of particular complaint in pars (b) and (c) at [15]. Having done so, her Honour announced her conclusion as follows: Taking into account all of the matters mentioned above and considering the matter as a whole, it is clear to me that the respondent worked for the applicant as an independent contractor. The respondent had his own ABN. He charged the applicant GST. The applicant claimed an input tax credit for the GST. The applicant did not [deduct] pay as you go income-tax instalment deductions from the amounts paid to the respondent. The respondent charged the applicant a fixed price for the work. The respondent was given no holiday pay, sick pay, superannuation or workers compensation insurance. The respondent was free to take other work and did including other work from the Salvation Army. The respondent, in my view, was clearly in business on his own account. Notwithstanding that Mr Roberts exercised some control over the overall direction of the project, and the respondent was doing a major job for the applicant, the respondent was not an employee. 17 The Magistrate did not treat the matters recorded in the second to seventh sentences of that passage as a "correct set of indicia". They were the matters that appealed to her as determinative after weighing and balancing a much larger range of indicia, including those relied on by the appellant. On a fair reading of the Magistrate's reasons, it cannot be said that the list of specific matters recorded in the passage quoted at [16] was propounded as "exhaustive of the determination of that question". 18 For the same reason I do not accept Counsel's oral variation of the "correct set of indicia" submission. This was that the Magistrate ticked off the matters on her check list and thus reached the wrong result because the list was incomplete. 19 For the foregoing reasons there is in my view no substance in complaint (a) at [15]. 20 The "concrete written expressions" of the respondent's intentions as to the "nature and terms of his employment" in complaint (b) at [15] were twofold. The first was that in his "Proposal to Develop a Call Centre Application" sent to Mr Roberts on 20 May 2004, he described himself as "Centre Stage Management Development Manager (Tony Riedle)". As to the significance of this title, the Magistrate said: The applicant says that this means that the respondent acknowledged that he was not an independent contractor but that he occupied a position as a designated employee of the applicant. In my view, that reads too much into the title the respondent gave himself. The proposal was to be provided to the Salvation Army. As between the applicant and the Salvation Army, the respondent was on the applicant's team. That was sufficient to explain the respondent's description of his position. The description does not seem to me to indicate that the respondent was holding himself out as an employee. In any event, it would only be evidence of his view at the time. As previously stated, I do not consider the views of the parties, or even their solicitors, to be of significant weight in the context of this case. 41 An understanding of some basic concepts involved in the construction of a computer program assists in understanding the appellant's implied term argument. The following description of the general nature of a computer program is taken from the judgment of Gibbs CJ in Computer Edge Pty Ltd v Apple Computer Inc [1986] HCA 19 ; (1986) 161 CLR 171 at 178-179. A computer program is a set of instructions designed to cause a computer to perform a particular function or to produce a particular result. A program is usually developed in a number of stages. First, the sequence of operations the computer will be required to perform is commonly written out in ordinary language. Next a source program is prepared, usually in a source code which is human-readable. The source code cannot be used directly in the computer, and must first be converted into an object code, which is machine-readable. The program is executed by the computer's central processing unit. See Data Access Corporation v Powerflex Services Pty Ltd [1999] HCA 49 ; (1999) 202 CLR 1 at [4] .


case_outcome: referred to

case_title: Roy Morgan Research Centre Pty v Commissioner of State Revenue (Victoria) 37 ATR 528

case_text: In Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Victoria) (1997) 37 ATR 528 at 533 the Victorian Court of Appeal said that the determination of the employee/independent contractor question involves identifying factors or indicia that are capable of pointing in one direction or another, none of which is conclusive, and weighing or balancing them in order to reach a conclusion. 23 Another indicator that the respondent saw himself as an employee is said to lie in the words used on the front of the proposal to the Salvation Army: "The information in this proposal is [proprietary] and is for the sole use of Centre Stage Management in conjunction with the Salvation Army Family Stores". This was said to demonstrate "his view of the terms of the agreement and it was not that he owned the copyright". The Magistrate said this did not greatly assist in determining the employee/independent contractor issue. She said that at most, it might indicate what one of the parties might have thought the relationship was, and that in this case that was not a matter of significant weight.


case_text: purpose of an order such as O 62 r 4 is to avoid the expense, delay and aggravation involved in litigation arising out of the taxation process: Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120; Leary v Leary [1987] 1 WLR 72. The power to order gross sum of costs is one which has to be exercised judicially, and after giving the parties adequate opportunity to make submissions on the matter: Auspine Ltd v Australian Newsprint Mills Ltd [1999] FCA 673 ; (1999) 93 FCR 1 ; Ualesi (t/a Australian Empire Imports) v Expeditors International Pty Ltd [2006] FCA 26.


case_title: Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119


case_outcome: cited

case_text: my view, not only it is likely that the additional costs of taxation would impose a significant burden on the respondent without any real prospects of recovering those additional costs, but also the expense, taxation and delay occasion to the respondent is likely to be disproportionate to the amount of the costs recoverable: Dunstan v Human Rights and Equal Opportunity Commission (No 3) [2006] FCA 916 , at [28]. The evidence in the affidavit of Kathryn Elizabeth Finlayson sworn and filed 2 October 2009 establishes that the charges for professional costs, calculated according to the rate for a solicitor in force at the relevant times under item 31 of the Second Schedule of the Federal Court Rules , amount to $12,672.00, and disbursements amount to $160.75. The actual costs incurred by the respondent, including disbursements, total $15,813.06.


case_outcome: followed

case_text: my view, the fixing of a gross sum for costs in the sum of $12,832.75 is "logical, fair and reasonable": see Ginos Engineers Pty Ltd v Autodesk Australia Pty Ltd (2008) 249 ALR 871 , at [25]. The order of the Court is that in respect of proceedings QUD 359 of 2008, the appellant pay the costs of the respondent of and incidental to the appeal, which I fix in the amount of $12,832.75. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. Associate: Dated: 6 November 2009 The Appellant appeared in person Solicitor for the Respondent: Minter Ellison Lawyers Date of Hearing: (Heard on the papers) Date of Judgment: 6 November 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1259.html


case_title: Leary v Leary [1987] 1 WLR 72


case_text: factor which I regard as significant in exercising the discretion to make an order for gross sum of costs, in the circumstances of the present case, is that, having regard to the financial capacity of the appellant, the additional cost for taxation is likely to impose a significant burden on the respondent, without real prospects of recovering those additional costs: Sparnon v Apand Pty Ltd [1998] FCA 164 ; Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228 ; (2005) 215 ALR 788.


case_title: Sparnon v Apand Pty Ltd [1998] FCA 164


case_title: Ualesi (t/a Australian Empire Imports) v Expeditors International Pty Ltd [2006] FCA 26


case_text: Tristar has raised extensive submissions both before the Commission and before Edmonds J in support of its contention that s 16(1) of the WPR Act operates to invalidate the Inquiry because of the introduction of s 16(1) of the WPR Act. Only if the Court comes to the conclusion that there is a ' sufficient likelihood of success ' (see O'Neill (2006) 229 ALR 478) in Tristar's case should the Court then consider granting an interlocutory injunction. The Court is required to scrutinise the claim to satisfy itself at least that there is a 'likelihood of success' before proceeding to grant such relief. In Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63 ; (2001) 208 CLR 199, Gleeson CJ at 217 said: 'In McCarty v North Sydney Municipal Council (126), the Chief Judge in Equity described the proposition that a plaintiff seeking an interlocutory injunction must show at least a probability that he will succeed in establishing his title to the relief sought at the final hearing as "so well established that no authority is really needed in support of it".'


case_text: As to the first issue, namely whether there is a serious question to be tried, Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 229 ALR 457 said at page 478 (referring to the joint judgment of Kitto and Owen JJ in Beecham Group Limited v Bristol Laboratories Pty Limited [1968] HCA 1 ; (1968) 118 CLR 618): 'By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.' 25 Tristar has raised extensive submissions both before the Commission and before Edmonds J in support of its contention that s 16(1) of the WPR Act operates to invalidate the Inquiry because of the introduction of s 16(1) of the WPR Act. Only if the Court comes to the conclusion that there is a ' sufficient likelihood of success ' (see O'Neill (2006) 229 ALR 478) in Tristar's case should the Court then consider granting an interlocutory injunction. The Court is required to scrutinise the claim to satisfy itself at least that there is a 'likelihood of success' before proceeding to grant such relief. In Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63 ; (2001) 208 CLR 199, Gleeson CJ at 217 said: 'In McCarty v North Sydney Municipal Council (126), the Chief Judge in Equity described the proposition that a plaintiff seeking an interlocutory injunction must show at least a probability that he will succeed in establishing his title to the relief sought at the final hearing as "so well established that no authority is really needed in support of it".' 31 The Court is required to determine 'the practical consequences likely to flow from the interlocutory order sought' see: O'Neill (2006) 229 ALR [71] per Gummow and Hayne JJ. Section 164(3)(a) of the IR Act provides that the Commission may make a non-disclosure order if it is satisfied ' that it is necessary to do so in the interests of justice ' (see s 164A(3)(b)). Further, the Commission, at para [85] of its decision, referred to the protection provided by the principle against self incrimination: see Environmental Protection Authority v Caltex Refining Co Pty Limited [1993] HCA 74 ; (1993) 178 CLR 477 at 548. The risk that Mr Hong may be exposed to self incrimination is not by itself a determinative consideration but merely a factor for the Court to take into account. However Mr Hong's concerns can be addressed, if justified, during the Commission's hearing in light of the protection provided by s 164(3)(a) of the IR Act and established principles relating to self-incrimination. The Commission has the same power in relation to the conduct of hearings before it as does the Supreme Court (see s 164(1) of the IR Act).


case_text: As to the first issue, namely whether there is a serious question to be tried, Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 229 ALR 457 said at page 478 (referring to the joint judgment of Kitto and Owen JJ in Beecham Group Limited v Bristol Laboratories Pty Limited [1968] HCA 1 ; (1968) 118 CLR 618): 'By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.'


case_text: The Minister submits that Edmonds J has already determined whether interlocutory relief should be granted, by refusing the application before him. Tristar had sought an order restraining the Commission from issuing any summons to produce documents. The Minister says that the summonses foreshadowed in the proceedings before Edmonds J have now issued. Further, although Mr Hong is now a party, and was at all material times, the corporate mind of Tristar as its Managing Director, there are no materially changed circumstances which would justify the Court entertaining the present application: see BP Chemicals ANZ Pty Limited v Manildra Starches Pty Limited [1997] FCA 1189.


case_text: The principles governing the issue of an interlocutory injunction were stated by Mason ACJ (as he then was) in Castlemaine Tooheys Limited and Others v The State of South Australia [1986] HCA 58 ; (1986) 161 CLR 148 at 153 where his Honour said: 'In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.'


case_text: The Court is required to determine 'the practical consequences likely to flow from the interlocutory order sought' see: O'Neill (2006) 229 ALR [71] per Gummow and Hayne JJ. Section 164(3)(a) of the IR Act provides that the Commission may make a non-disclosure order if it is satisfied ' that it is necessary to do so in the interests of justice ' (see s 164A(3)(b)). Further, the Commission, at para [85] of its decision, referred to the protection provided by the principle against self incrimination: see Environmental Protection Authority v Caltex Refining Co Pty Limited [1993] HCA 74 ; (1993) 178 CLR 477 at 548. The risk that Mr Hong may be exposed to self incrimination is not by itself a determinative consideration but merely a factor for the Court to take into account. However Mr Hong's concerns can be addressed, if justified, during the Commission's hearing in light of the protection provided by s 164(3)(a) of the IR Act and established principles relating to self-incrimination. The Commission has the same power in relation to the conduct of hearings before it as does the Supreme Court (see s 164(1) of the IR Act).


case_text: The Court is satisfied that the balance of convenience or the 'balance of justice' (see Donaldson MR in Francome and Another v Mirror Group Newspapers Ltd and Others (1984) 2 All ER 408 at 413) is in favour of the relief sought being declined.


case_text: It does not follow that the Court is required as of course, to grant an interlocutory injunction if a claim is made that is merely arguable. Despite the submissions of Senior Counsel for Tristar concerning the effect of the Terms of Reference, particularly the submission claiming that the first term was directed at the employer and employee relationship within Tristar, I am not satisfied that Tristar has established a ' fair prima facie case and a fair probability of being able to succeed in that case at the hearing. ': see Roper CJ in Linfield Linen Pty Ltd v Nejain (1951) 51 SR (NSW) 280 at 281. 27 The Court has considered the submission of Tristar and critically examined the findings of the Commission concerning the effect of s 16(1) of the WPR Act arising from such examination. The effect of s 16(1) of the WPR Act is arguable, but the Court is unable to draw the conclusion to the requisite standard to justify the grant of injunctive relief. That is, the Court is not satisfied that there is a 'probability' that Tristar will succeed on this question. Accordingly, the Court finds that a serious question to be tried, as that term has been interpreted by the above authorities, has not been established. 28 In determining the harm that might be sustained by Mr Hong if the injunction is not granted, the evidence adduced by Mr Hong must be considered. Relevantly, his affidavit states such alleged prejudice as follows: '8. I reside and work in Adelaide, South Australia. Although I am required to travel during the course of my employment, it is difficult for me to perform my duties as a Managing Director of the Arrowcrest Group if I am required to give evidence in Sydney on 23 March 2007. 9. The Arrowcrest Group conducts a large business and many negotiations occur with respect to potential contracts and deals within and outside of Australia I am most concerned about being compelled to give evidence before the Inquiry in that I may be forced to reveal information or produce documents on behalf of Tristar that are of a commercially confidential nature. This could result in Tristar specifically and the Arrowcrest Group generally suffering detriment. 10. On or about 19 February 2007 the Office of Workplace Services commenced a prosecution against Tristar in the Federal Court of Australia alleging a number of issues including that Tristar has "injured" their workers because of an alleged failure to provide work to these workers. The prosecution before the Federal Court deals with many similar issues as those encompassed in the terms of reference and therefore I am concerned that being compelled to give evidence in the Inquiry could prejudice Tristar's position.'


case_outcome: considered

case_text: In particular, Tristar submits that the Commission erred in holding that the word 'apply' in s 16(1) operated to limit the words 'in relation to' to those State Industrial Laws which created rights and obligations. Tristar submits that the words 'in relation to' contained in s 16(1) of the WPR Act apply to industrial matters broadly and are not merely confined to matters relating to employer and employee relations. Tristar submits that s 16(1)(a) would be constitutionally invalid if the words 'in relation to' were not read down (see 48-51), and that the decision of the Commission is contrary to the decision of the finding of the High Court of Australia in New South Wales v Commonwealth (2006) 82 ALJR 34 especially at [346] to [377].


case_text: As to the balance of convenience, it is submitted that only Mr Hong seeks relief by restraining the Commission from calling upon the summons to give evidence. In support of its application, Tristar relies upon the decision of Branson J in Re Cortaus (in Liq); Sheahan v Joye & Ors (No. 2) (1996) 20 ACSR 576 at 578.5, wherein her Honour determined that requiring a person to attend an examination and compulsorily give evidence under oath constituted an infringement of his or her civil liberties. 21 As to the balance of convenience, the Minister submits that the decision in Re Cortaus 20 ACSR 576 was distinguished by Edmond J on the ground that the summonsed parties in Cortaus 20 ACSR 576 were parties to the proceeding itself. 29 The inconvenience to Mr Hong in travelling to New South Wales to answer the summons can be readily disregarded and it is not seriously advanced as a reason relating to the balance of convenience. The Court also gives negligible weight to the consideration that Mr Hong might find it difficult to perform his duties. However the necessity to answer questions and divulge information is relied upon. As was pointed out by Edmonds J, the summonsed parties in Re Cortaus 20 ACSR 576 'were parties to the proceeding itself' (see Tristar Steering [2007] FCA [12]). His Honour was clearly mindful that the summonsed parties were parties to the appeal pending before the Full Court. Such consideration may have substantially dissipated in view of the leave granted to join Mr Hong as a party to the application. 30 Despite this amendment, I consider that the decision of Branson J in Re Cortaus 20 ACSR 576 is distinguishable. Unlike the facts relied upon for the relief claimed in that decision Mr Hong has not complained that his civil liberties might be infringed. Rather his claim for relief is based on entirely different grounds, namely his concern ' about being compelled to give evidence before the Inquiry in that I may be forced to reveal information or produce documents on behalf of Tristar that are of a commercially confidential nature. ' Mr Hong was also concerned that he might be required to reveal information concerning other litigation before this Court which could ' prejudice Tristar's position '.


case_text: Since Mr Hong was not a party to the proceedings before Edmonds J, the Court on this application has approached the issue of the claim for relief as an entirely new matter, even though Mr Hong has been intimately involved, as Managing Director, in the management of Tristar and as such may be assumed to have been the 'mind of the company' (see: Tesco Supermarkets Limited v Nattrass [1971] UKHL 1 ; [1972] AC 153 at 170). As a consequence, it becomes unnecessary for the Court to determine whether the relief claimed in paragraph [3] of the application before Edmonds J is the same or substantially the same as the relief now claimed. The Court observes that there is a difference only to the extent that the parties were different before his Honour and the prayer for relief before his Honour as set out in Order 3 thereof sought to restrain the issue of any summons, whereas the relief now claimed seeks to restrain the Commission from calling upon the summons. 35 There is one aspect of his Honour's judgment however which is significant, and which would apply with the same effect in relation to the present application, namely the finding at paragraph [7] as follows: 'Moreover, there is no issue that the Commission's report to the Minister cannot affect the legal rights and obligations of Tristar.' Based upon the available evidence, the same observation applies with equal force to Mr Hong. 36 For the reasons referred to above, the Court in the exercise of its discretion, declines to grant the relief claimed by the applicants. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 21 March 2007 Counsel for the Applicants: N. Perram SC, A. Moses, A. Kuklik Solicitor for the Applicant: Moray & Agnew Solicitors Counsel for the Respondent: S. Crawshaw SC, D. Chin Solicitor for the Respondent: Crown Solicitor's Office Date of Hearing: 20 March 2007 Date of Judgment: 21 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/407.html


case_text: The application for injunctive relief came on before Edmonds J who refused such relief (see Tristar Steering & Suspension Australia Ltd v Industrial Relations Commission of NSW [2007] FCA 348). 11 On 16 March 2007 a Summons to Give Evidence ('the summons'), addressed to Mr Cheng Hong, the Managing Director of Tristar, was issued pursuant to s 165(3)(b) of the IR Act. The summons was served upon Mr Hong in Sydney. The present application for injunctive relief and for the joinder of Mr Hong was filed on 19 March 2007. During the hearing an order was made that Mr Hong be joined as an applicant. For convenience, when both applicants are referred to hereafter they shall be referred to as 'Tristar'. 12 Tristar claims that there is a serious question to be tried which it articulates as follows: 'Is the exercise by the Commission of its function of inquiry under s 146(1)(d) of the Industrial Relations Act 1996 (NSW) in relation to the first term of reference an operation of a "State Industrial Law" (as defined in s 4 of the Workplace Relations Act 1998 (Cth)) which has the effect that the State Industrial Law would "otherwise apply in relation to an employee or employer" within the meaning of s 16(1) of the Workplace Relations Act 1996 ? ' 15 Tristar also submits that Edmonds J did not determine whether there was a serious question to be tried but dismissed the proceedings before him on the grounds that the balance of convenience did not justify the grant of the injunction sought. 16 Mr Hong submits that his rights and liabilities may be infringed because he is required to attend before the Commission and give evidence and that the failure to comply with the summons exposes him to potential fines and penalties as provided by s 165(4) of the IR Act. 18 The Minister submits that Edmonds J has already determined whether interlocutory relief should be granted, by refusing the application before him. Tristar had sought an order restraining the Commission from issuing any summons to produce documents. The Minister says that the summonses foreshadowed in the proceedings before Edmonds J have now issued. Further, although Mr Hong is now a party, and was at all material times, the corporate mind of Tristar as its Managing Director, there are no materially changed circumstances which would justify the Court entertaining the present application: see BP Chemicals ANZ Pty Limited v Manildra Starches Pty Limited [1997] FCA 1189. 19 Contrary to the submissions of the applicants the Minster submits that Edmonds J did make a determination that there was no serious question to be tried as stated in paragraph [7] of his Honour's judgment where his Honour said: 'In the limited time I have had to read and consider the Commission's decision and hear Tristar's Senior Counsel's submissions as to the arguable errors in the Commission's process of reasoning, I am not persuaded that the Commission's decision on both the jurisdictional application and the stay application is wrong.' 20 His Honour's reference to the balance of convenience thereafter merely showed that he was considering the necessary issues raised by the application before him. The Minister relies upon the submissions he made before Edmonds J, which, in substance, seek to demonstrate that the WPR Act does not operate to exclude the jurisdiction of the Commission to undertake its functions pursuant s 146(1)(d) of the IR Act, and that the decision of the Commission is correct. 25 Tristar has raised extensive submissions both before the Commission and before Edmonds J in support of its contention that s 16(1) of the WPR Act operates to invalidate the Inquiry because of the introduction of s 16(1) of the WPR Act. Only if the Court comes to the conclusion that there is a ' sufficient likelihood of success ' (see O'Neill (2006) 229 ALR 478) in Tristar's case should the Court then consider granting an interlocutory injunction. The Court is required to scrutinise the claim to satisfy itself at least that there is a 'likelihood of success' before proceeding to grant such relief. In Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63 ; (2001) 208 CLR 199, Gleeson CJ at 217 said: 'In McCarty v North Sydney Municipal Council (126), the Chief Judge in Equity described the proposition that a plaintiff seeking an interlocutory injunction must show at least a probability that he will succeed in establishing his title to the relief sought at the final hearing as "so well established that no authority is really needed in support of it".' 29 The inconvenience to Mr Hong in travelling to New South Wales to answer the summons can be readily disregarded and it is not seriously advanced as a reason relating to the balance of convenience. The Court also gives negligible weight to the consideration that Mr Hong might find it difficult to perform his duties. However the necessity to answer questions and divulge information is relied upon. As was pointed out by Edmonds J, the summonsed parties in Re Cortaus 20 ACSR 576 'were parties to the proceeding itself' (see Tristar Steering [2007] FCA [12]). His Honour was clearly mindful that the summonsed parties were parties to the appeal pending before the Full Court. Such consideration may have substantially dissipated in view of the leave granted to join Mr Hong as a party to the application.


case_text: The appeal under s 44(1) of the Administrative Appeals Tribunal Act is only available on a question of law. Counsel for the Company argued that this was not so in the present case. However, the present case is squarely within the proposition stated by the High Court in Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 7 that "the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law." See also Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286-287.


case_title: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286-287


case_text: Moreover, the terms of the written agreement quoted at [6] above explicitly contemplate that one of the reasons Mr and Mrs Slade are to get repayment of their loans is for the discharge of their own personal obligations such as mortgages and school fees. There was here something more than a mere causal relationship between the employment and the payment: J & G Knowles & Associates Pty Ltd v Commissioner of Taxation [2000] FCA 196 ; (2000) 96 FCR 402 at [27] . One cannot say that the Mr and Mrs Slade were employees who just happened to get repayments of a loan. Their position may be contrasted with the hypothetical example of an employee of a large public company who invests in publicly listed debentures of the company which are in due course repaid. In such a case the repayment would have nothing to do with the employment. 19 The appeal of the Commissioner should be allowed. It is not necessary to consider the alternative argument, which was confined to the car and entertainment payments. There will be orders that the decision of the Administrative Appeals Tribunal made 31 July 2006 be set aside and that the decision under review therein be affirmed. No order as to costs is sought. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 23 February 2007 Counsel for the Applicant: P Sest Solicitors for the Applicant: Legal Services Branch, Australian Taxation Office Counsel for the Respondent: A Athanasiou Solicitors for the Respondent: Rigby Cooke Date of Hearing: 9 February 2007 Date of Judgment: 23 February 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/188.html


case_outcome: related

case_text: is an application for leave to appeal from the decision given on 8 August 2006 by Barnes FM, who declined to make an order nisi on the basis that no arguable case had been established ( Applicant S117/2005 v Minister for Immigration & Multicultural Affairs & Anor [2006] FMCA 1169). The application for leave to appeal from that decision, and the affidavit in support, identified very general grounds of attack upon that decision, but do not tie those grounds back to any part of the reasons of the learned Federal Magistrate. Unsupported by such a reference, those grounds, in themselves, are quite meaningless. I have explained the position to the applicant and he has, quite frankly, said that he is unable to follow the technical legal aspects of this matter. What he is seeking is another tribunal to properly assess his factual claims, and he would like more time as well. As I have indicated to him, the role of this Court is simply to correct errors in the approach of the Federal Magistrates Court, not to deal directly with the decision of the Refugee Review Tribunal. This matter has a long history, which I need not go into, but, as I have explained to the applicant, in the absence of his ability to raise an arguable ground of appeal from the learned Federal Magistrate's decision, I am bound to dismiss his application, which I do. The applicant is to pay the costs of the first respondent. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 14 November 2006 The Applicant appeared in person Solicitor for the First Respondent: Mr J Wright of Sparke Helmore The Second Respondent submitted Date of Hearing: 1 November 2006 Date of Judgment: 1 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1495.html


case_text: In NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 ; (2004) 144 FCR 1, the Full Court (Black CJ, French, and Selway JJ) said at [60]: In SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17], Selway referred to the observation by Kirby J in Dranichnikov , at 405, that "[t]he function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances". He also referred to the observation by von Doussa J in SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 548 that "[n]either the delegate nor the Tribunal is obliged to consider claims that have not been made" (at [16]). Selway J however went on to observe in SGBB (at [17]): 'But this does not mean the application is to be treated as an exercise in 19 th Century pleading.' His Honour noted that the Full Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 at [49] had said: 'The Tribunal must, of course, deal with the case raised by the material and evidence before it. An asylum claimant does not have to pick the correct Convention "label" to describe his or her plight, but the Tribunal can only deal with the claims actually made.' His Honour, in our view, correctly stated the position when he said at (at [18]): 'The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.'


case_title: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184

case_text: The Full Court further said, at [63]: It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant's claim, may be of no consequence to the outcome. It may be "subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected": Applicant WAEE [ WAEE v Minister for Immigration [2003] FCAFC 184] (at [47]). But as the Full Court said in WAEE (at [45]): If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal's published reasons for decision. 25 In WAEE , the Full Court said, at [47]: The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked. 26 It may be, as Counsel for the Minister submitted, that the findings and reasons were, and were meant to be, applicable to all of the bases which the appellant had advanced. 27 The fact remains, however, that there is an express and confining reference to ethnicity, both at the start and end of the Tribunal's "Findings and Reasons".


case_text: The expressed aim of the new sub-rule was "to limit the documents that must be discovered to those which are directly relevant to the proceedings" (see the Explanatory Statement for the Amendment). Practice Note 14 was made at about the same time as the amendments. For a detailed discussion of the changes effected by the amendments, I refer to Australian Competition & Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 366 at [17] - [23] per Lindgren J. 23 The express provision in the Rules for limited discovery is O 15 r 8 and it provides as follows: Where, at any stage of the proceeding, it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed in the proceeding that there are grounds for a belief that some document or class of document relating to any matter in question in the proceeding may be or may have been in the possession, custody or power of a party, the Court may order that party: (a) to file any affidavit stating whether that document or any document of that class is or has been in his possession, custody or power and, if it has been but is not then in his possession, custody or power, when he parted with it and what has become of it; and (b) to serve the affidavit on any other party.


case_text: I recognise that there are observations of Selway J in Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] FCA 353 ; [2004] ATPR 41-996 at [12] - [13] that suggest that the longstanding rule of practice does not apply in this Court whether the order is one for general discovery or for limited discovery and that those observations have been referred to in a general way with approval (see Westfield Management Ltd v Brisbane Airport Corp Ltd [2004] FCA 611 at [12] and [22] per Cooper J; Garnet International Resources Pty Ltd v Barton International Inc [2005] FCA 93 at [7] - [8] per RD Nicholson J; Candacal Pty Ltd v Industry Research and Development Board (2005) 223 ALR 284 at 295 [53]-[54] per Lee J). However, for the reasons I have given, I would not follow those observations where the order is, as in this case, an order for general discovery.


case_title: Candacal Pty Ltd v Industry Research and Development Board (2005) 223 ALR 284


case_text: That approach has been followed in Australia: Curlex Manufacturing Pty Ltd v Carlingford Australia General Insurance Ltd [1987] 2 Qd R 335; Optus Communications Pty Ltd v Telstra Corp Ltd (unreported, Lockhart J, 27 April 1995).


case_text: The applicant submits that the rule of practice identified in GE Capital does not apply under the Rules of this Court. He submits that a party making discovery is not entitled to seal up or mask parts or sections of a document unless he has the consent of the other party or the permission of the Court. He refers to Telstra Corp v Australis Media Holdings (unreported, Supreme Court of New South Wales Equity Division, McLelland CJ in Eq, 10 February 1997) (" Telstra Corp "); Gray v Associated Book Publishers (Aust) Pty Ltd [2002] FCA 1045 (" Gray ") and Fig Tree Developments Ltd v Australian Property Custodian Holdings Ltd [2008] FCA 1041. In Gray , Branson J said (at [15]-[16]): 15 In my view, where in this Court categories of documents are required to be discovered and thereafter made available for inspection, the true obligation on the party giving discovery is the same as that identified by McLelland CJ in Eq in Telstra Corporation v Australis Media Holdings by reference to Pt 23 of the New South Wales Supreme Court Rules . The Chief Judge there said: "Under the new discovery rules, Pt 23 of the Supreme Court Rules , ... classes of documents required to be discovered may be, and were in the present case, specified not by reference to relevance to a fact or facts in issue, but by description of the nature of the documents, rendering it unnecessary to consider questions of relevance to an issue, as such. If in such cases the party giving discovery desires to withhold, by making [sic] or otherwise, production of part of a discoverable document on the ground that that part does not contribute to the satisfaction of any of the criteria by reference to which the class of documents is described, then it may be that a case can be made for giving effect to that desire, but in my view, unless there is some relevant qualification in the order for discovery, the order requires that the whole document be produced unless there is an agreement to the contrary by the party to which discovery is being made, or unless relief from the requirement, for example by making [sic] certain portions is obtained from the Court. 16 The respondents did not obtain the agreement of the applicant to the masking of portions of their discovered documents, nor did they seek relief from the Court from their prima facie obligations to allow full inspection of their discovered documents. Nonetheless, having regard to the course of argument on the applicant's notice of motion, it seems appropriate now to give consideration to the claim of the respondents that the masking undertaken by them is appropriate in the circumstances and ought to be authorised by the Court.


case_title: Garnet International Resources Pty Ltd v Barton International Inc [2005] FCA 93


case_outcome: discussed

case_text: The respondent submits that the course it has taken accords with a longstanding practice as to the masking or sealing up of documents on the ground that the concealed parts of a document are irrelevant. It submits that the oath of the party giving discovery is conclusive unless there are grounds for concluding that proper discovery has not been given (see O 15 r 8). That means, so it was submitted by the respondent, that it is conclusive not only as to whether there are any other relevant documents but also as to whether the sections of a document sealed up or concealed are relevant or irrelevant. A clear statement of the rule of practice upon which the respondent relies was made by Hoffman LJ in GE Capital Corporate Finance Group Ltd v Bankers Trust Co [1995] 1 WLR 172; [1995] 2 All ER 993 (" GE Capital ") at 174; 994-995: It has long been the practice that a party is entitled to seal up or cover up parts of a document which he claims to be irrelevant. Bray's Digest of the Law of Discovery, 2nd ed. (1910), pp. 55 56 puts the matter succinctly: "Generally speaking, any part of a document may be sealed up or otherwise concealed under the same conditions as a whole document may be withheld from production; the party's oath for this purpose is as valid in the one case as in the other. The practice is either to schedule to the affidavit of documents those parts only which are relevant, or to schedule the whole document and to seal up those parts which are sworn to be irrelevant; ..." The oath of the party giving discovery is conclusive, "unless the court can be satisfied--not on a conflict of affidavits, but either from the documents produced or from anything in the affidavit made by the defendant, or by any admission by him in the pleadings, or necessarily from the circumstances of the case--that the affidavit does not truly state that which it ought to state:" per Cotton L.J. in Jones v. Andrews (1888) 58 L.T. 601, 604. 18 The applicant submits that the rule of practice identified in GE Capital does not apply under the Rules of this Court. He submits that a party making discovery is not entitled to seal up or mask parts or sections of a document unless he has the consent of the other party or the permission of the Court. He refers to Telstra Corp v Australis Media Holdings (unreported, Supreme Court of New South Wales Equity Division, McLelland CJ in Eq, 10 February 1997) (" Telstra Corp "); Gray v Associated Book Publishers (Aust) Pty Ltd [2002] FCA 1045 (" Gray ") and Fig Tree Developments Ltd v Australian Property Custodian Holdings Ltd [2008] FCA 1041. In Gray , Branson J said (at [15]-[16]): 15 In my view, where in this Court categories of documents are required to be discovered and thereafter made available for inspection, the true obligation on the party giving discovery is the same as that identified by McLelland CJ in Eq in Telstra Corporation v Australis Media Holdings by reference to Pt 23 of the New South Wales Supreme Court Rules . The Chief Judge there said: "Under the new discovery rules, Pt 23 of the Supreme Court Rules , ... classes of documents required to be discovered may be, and were in the present case, specified not by reference to relevance to a fact or facts in issue, but by description of the nature of the documents, rendering it unnecessary to consider questions of relevance to an issue, as such. If in such cases the party giving discovery desires to withhold, by making [sic] or otherwise, production of part of a discoverable document on the ground that that part does not contribute to the satisfaction of any of the criteria by reference to which the class of documents is described, then it may be that a case can be made for giving effect to that desire, but in my view, unless there is some relevant qualification in the order for discovery, the order requires that the whole document be produced unless there is an agreement to the contrary by the party to which discovery is being made, or unless relief from the requirement, for example by making [sic] certain portions is obtained from the Court. 16 The respondents did not obtain the agreement of the applicant to the masking of portions of their discovered documents, nor did they seek relief from the Court from their prima facie obligations to allow full inspection of their discovered documents. Nonetheless, having regard to the course of argument on the applicant's notice of motion, it seems appropriate now to give consideration to the claim of the respondents that the masking undertaken by them is appropriate in the circumstances and ought to be authorised by the Court. 24 An order for limited discovery is, or is becoming, the more usual order made by this Court. In the case of such an order, cases such as Telstra Corp and Gray suggest the rule of practice referred to in GE Capital does not apply because the nature of the order (that is, discovery by classes or categories of documents identified in the order) is such that the party giving discovery does not have to consider questions of relevance to an issue. Had I made such an order in this case, I would have been disposed to follow those cases. Perhaps, as Sundberg J observed in Rio Tinto Ltd v Commissioner of Taxation [2005] FCA 1335 (at [26]), in practical terms the difference between the two approaches will not often be of great significance. In this case it does make a difference because the respondent did not seek to justify the masking of the documents beyond its reliance on the oath of discovery and, although in some cases ( GE Capital is an example) the Court is able to say from its own examination of the masked documents that there are no grounds to think the masked portions are relevant, I am not satisfied that, if I had to address the question, I could reach that conclusion in this case. 25 The difficulty facing the applicant is that I did not make an order for limited discovery in this case. I made an order for general discovery in the sense of an order which imported the criteria in O 15 r 2(3). Relevance is not determined by the order but by the party giving discovery, having regard to the issues in the case and the criteria in O 15 r 2(3). In those circumstances I see no reason not to apply the longstanding rule of practice referred to in GE Capital . It seems to me that the only difference between a party swearing that there are no other relevant documents and swearing that masked parts or sections of a document are not relevant is perhaps that in the latter case there is an increased possibility of error in excluding parts or sections of a document which put the disclosed parts of a document in their proper context. That, no doubt, is a problem the Court must guard against, as it has had to since the longstanding rule of practice was formulated. However, it is not suggested that any Rule of Court has been made in response to a perceived need to overcome difficulties of this nature.


case_text: The applicant submits that the rule of practice identified in GE Capital does not apply under the Rules of this Court. He submits that a party making discovery is not entitled to seal up or mask parts or sections of a document unless he has the consent of the other party or the permission of the Court. He refers to Telstra Corp v Australis Media Holdings (unreported, Supreme Court of New South Wales Equity Division, McLelland CJ in Eq, 10 February 1997) (" Telstra Corp "); Gray v Associated Book Publishers (Aust) Pty Ltd [2002] FCA 1045 (" Gray ") and Fig Tree Developments Ltd v Australian Property Custodian Holdings Ltd [2008] FCA 1041. In Gray , Branson J said (at [15]-[16]): 15 In my view, where in this Court categories of documents are required to be discovered and thereafter made available for inspection, the true obligation on the party giving discovery is the same as that identified by McLelland CJ in Eq in Telstra Corporation v Australis Media Holdings by reference to Pt 23 of the New South Wales Supreme Court Rules . The Chief Judge there said: "Under the new discovery rules, Pt 23 of the Supreme Court Rules , ... classes of documents required to be discovered may be, and were in the present case, specified not by reference to relevance to a fact or facts in issue, but by description of the nature of the documents, rendering it unnecessary to consider questions of relevance to an issue, as such. If in such cases the party giving discovery desires to withhold, by making [sic] or otherwise, production of part of a discoverable document on the ground that that part does not contribute to the satisfaction of any of the criteria by reference to which the class of documents is described, then it may be that a case can be made for giving effect to that desire, but in my view, unless there is some relevant qualification in the order for discovery, the order requires that the whole document be produced unless there is an agreement to the contrary by the party to which discovery is being made, or unless relief from the requirement, for example by making [sic] certain portions is obtained from the Court. 16 The respondents did not obtain the agreement of the applicant to the masking of portions of their discovered documents, nor did they seek relief from the Court from their prima facie obligations to allow full inspection of their discovered documents. Nonetheless, having regard to the course of argument on the applicant's notice of motion, it seems appropriate now to give consideration to the claim of the respondents that the masking undertaken by them is appropriate in the circumstances and ought to be authorised by the Court. 24 An order for limited discovery is, or is becoming, the more usual order made by this Court. In the case of such an order, cases such as Telstra Corp and Gray suggest the rule of practice referred to in GE Capital does not apply because the nature of the order (that is, discovery by classes or categories of documents identified in the order) is such that the party giving discovery does not have to consider questions of relevance to an issue. Had I made such an order in this case, I would have been disposed to follow those cases. Perhaps, as Sundberg J observed in Rio Tinto Ltd v Commissioner of Taxation [2005] FCA 1335 (at [26]), in practical terms the difference between the two approaches will not often be of great significance. In this case it does make a difference because the respondent did not seek to justify the masking of the documents beyond its reliance on the oath of discovery and, although in some cases ( GE Capital is an example) the Court is able to say from its own examination of the masked documents that there are no grounds to think the masked portions are relevant, I am not satisfied that, if I had to address the question, I could reach that conclusion in this case.


case_text: Under the Rules of Court there is express provision for an order for general discovery and for an order for limited discovery. The order for general discovery is no longer of a type that requires discovery of documents relating to any matter in question in the proceeding and the application of the test formulated in The Compagnie Financiere et Commerciale du Pacifique v The Peruvian Guano Company (1882) 11 QBD 55 and referred to in Mulley v Manifold [1959] HCA 23 ; (1959) 103 CLR 341. The rule providing for such discovery was amended in 1999 by Federal Court Amendment Rules 1999 (No 6) (Statutory Rules 1999 No 295) (Cth) and replaced with O 15 r 2(3), which was in the following terms: Without limiting rule 3 or 7, the documents required to be disclosed are any of the following documents of which the party giving discovery is, after a reasonable search, aware at the time discovery is given: (a) documents on which the party relies; and (b) documents that adversely affect the party's own case; and (c) documents that adversely affect another party's case; and (d) documents that support another party's case; and (e) documents that the party is required by a relevant practice direction to disclose. Paragraph (e) has since been removed.


case_title: Optus Communications Pty Ltd v Telstra Corp Ltd (unreported, Lockhart J, 27 April 1995)


case_title: Rio Tinto Ltd v Commissioner of Taxation [2005] HCA 1335

case_text: An order for limited discovery is, or is becoming, the more usual order made by this Court. In the case of such an order, cases such as Telstra Corp and Gray suggest the rule of practice referred to in GE Capital does not apply because the nature of the order (that is, discovery by classes or categories of documents identified in the order) is such that the party giving discovery does not have to consider questions of relevance to an issue. Had I made such an order in this case, I would have been disposed to follow those cases. Perhaps, as Sundberg J observed in Rio Tinto Ltd v Commissioner of Taxation [2005] FCA 1335 (at [26]), in practical terms the difference between the two approaches will not often be of great significance. In this case it does make a difference because the respondent did not seek to justify the masking of the documents beyond its reliance on the oath of discovery and, although in some cases ( GE Capital is an example) the Court is able to say from its own examination of the masked documents that there are no grounds to think the masked portions are relevant, I am not satisfied that, if I had to address the question, I could reach that conclusion in this case.


case_title: Telstra Corp v Australis Media Holdings (unreported, Supreme Court of New South Wales Equity Division, McLelland CJ in Eq, 10 February 1997)


case_title: The Compagnie Financiere et Commerciale du Pacifique v The Peruvian Guano Company (1882) 11 QBD 55


case_title: Westfield Management Ltd v Brisbane Airport Corp Ltd [2004] FCA 611


case_text: organising principles governing the exercise of the discretion in granting or withholding the grant of an interlocutory injunction are well understood and clearly explained by the High Court in Australian Broadcasting Corporation v O'Neill (2006) 225 CLR 57 per Gleeson CJ and Crennan J at [19] and Gummow and Hayne JJ at [65] to [72] as their Honours emphasise the principles established in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618. It is therefore necessary for the applicants to show a sufficient likelihood of success in the principal proceeding at trial to justify, in the circumstances, the preservation of the status quo pending the trial. That is the sense in which the applicants must demonstrate whether a prima facie case is made out. In analysing whether the applicants have demonstrated a sufficient likelihood of success to justify the preservation of the status quo pending trial, the Court will examine the strength of the prima facie case and whether, if the evidence remains as it is, there is a probability that at the trial of the action the plaintiff will be held entitled to relief. The strength of the probability of success depends in part upon the nature of the rights asserted by the applicants and the practical consequences likely to flow from the order the applicants seek. A sufficient likelihood of success in this sense might properly also be described as whether the applicants have shown a serious question to be tried. The applicants must also demonstrate that the injury the individual applicants would be likely to suffer if an interlocutory injunction is not granted, outweighs the injury the defendant would suffer if the injunction is granted. Further, the applicants must show that damages will not be an adequate remedy. The question of balance of convenience and the adequacy of damages are in turn influenced by the strength of the prima facie case and the nature of the rights asserted by the individual applicants. In this case, the applicants contend that they have been deprived of their employment for a prohibited reason in circumstances where the legislation enacting the prohibition and conferring remedial rights in respect of contraventions of the prohibition, is directed to the protection and preservation of the freedom of association (Division 3 of Part 16 of the Act).


case_title: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618


case_text: trial, the applicants propose to rely upon the presumption contained in s 809(1) of the Act. The operation of the presumption was explained by Wilcox and Cooper JJ in David's Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 at [109] in the context of the then s 298V of the Act which was, relevantly, in the same terms as s 809(1) of the Act. Their Honours said: Section 298V does not relieve the applicant in proceedings under Division 6 of Part XA of the Act from proving, on the balance of probabilities, each of the ingredients of the contravention. It enables the allegation to stand as sufficient proof of the fact unless the employer proves otherwise. Section 809(1) has the effect of reversing the onus of proof with the result that it is presumed in the proceeding brought under s 807 of the Act that the conduct was carried out for a prohibited reason unless the employer proves otherwise. The policy of that approach is simply that the circumstances by reason of which an employer might take action of dismissal against an employee are necessarily peculiarly within the knowledge of the employer. Section 809(2) suggests that the presumption might not operate in an application for an interim or interlocutory injunction. However, it seems to me that the correct approach is this. The organising principles governing the grant or otherwise of an interlocutory injunction are directed, importantly, to determining whether the applicants have demonstrated a sufficient likelihood of success at trial to justify, in the circumstances, the preservation of the status quo pending the trial. At the trial, the presumption operates, effecting a reversal of the onus of proof once the other integers of the section giving rise to the prohibition are made out. In determining whether the applicants have demonstrated a sufficient likelihood of success at trial, the Court must take into account the operation of the presumption at trial in the context of the evidence available on the interlocutory application. The presumption cannot be determinative of the interlocutory application but its operation in the context of the trial is relevant to the strength of the probability of success at trial.


case_text: that sense, I respectfully agree with the observations of Ryan J in Police Federation of Australia & Anor v Nixon & Anor [2008] FCA 467 ; (2008) 168 FCR 340 at [69] in these terms: If the effect of s 809(2) is to require an applicant to demonstrate, in the absence of any evidence at all from the respondent, a serious question to be tried as to each element of the cause of action, including the respondent's reason or reasons for the impugned conduct, the applicant may suffer irreparable damage before he or she can be accorded a final trial at which, ex hypothesi , the presumption would enable the cause of action to be made out. I consider that such a restrictive and apparently unjust interpretation should only be given to a provision which occurs in what seems to be a beneficial or facultative legislative scheme, if the language of the subsection intractably requires it. In my view, a construction more consonant with the statutory context and history and the preparatory material is that s 809(2) precludes the Court from finding, on an application for an interim or interlocutory injunction, even provisionally, by recourse solely to the presumption that the respondent's conduct was for a prescribed reason or for reasons that included a prescribed reason. However, I do not construe s 809(2) as preventing the Court, in assessing whether there is a serious issue to be tried, from having regard to the availability of the presumption in the final determination of the application. Similarly, I consider that account can be taken of the ultimate availability of the presumption when assessing the respective strengths of the case for the applicant and that for the respondent as part of exercising the general discretion to grant or withhold interlocutory relief. Having regard to these matters, the applicants say that there is no controversy that Mr Brown and Mr Coombs were dismissed with effect from 19 June 2009. Nor is there controversy that each man gave evidence in the proceedings brought by the CEPU in relation to the proposed Blue Star Agreement and that those proceedings relate to an industrial law. The applicants say that an inference arises that each man was dismissed for the reason that he participated and gave evidence in the CEPU proceedings before Reeves J. That inference arises on the footing that the evidence was given on Monday, 15 June 2009 and each man's employment was terminated at the end of the working day on Friday of the same week. In other words the timing of the termination is proximate to the giving of the evidence. Secondly, each man had been a good worker. David Coombs had worked for Blue Star for two years and seven months and had been commended for his commitment to resolving a difficult stage of the Brisbane Central Project. Craig Brown had worked for Blue Star since 16 September 2008 although he had only worked on the Brisbane Central site from 11 May 2009. Craig Brown deposes to what might only be a sense of irritation on the part of Blue Star through Mr Walsh but nevertheless reflects some focus on Tuesday following the giving of the evidence, in the context of work duties, upon Mr Brown's day at Court on the preceding Monday. The hypothesis that each man was dismissed for reasons that include, as an operative reason, the giving of evidence in the CEPU proceedings, is entirely consistent with the evidence of the applicants. Further, the applicants rely upon the presumption in terms of the strength of the case at trial. The applicants contend that if the evidence remains at trial as it is on the interlocutory application, the applicants will succeed at trial. The respondent seeks to dispel any inferences which might arise from proximity of timing, a good history of work performance, the remark by Mr Walsh and the operation of the presumption by identifying the context within which the dismissal decision was taken.


case_text: Bowling v General Motors Holdens Pty Ltd 8 ALR 197, Smithers and Evatt JJ at p 201, ll 32 38 identify the immediate inquiry in these terms: In relation to the critical issue, the immediate inquiries are, what person or persons made the decision to dismiss the informant, what relevant circumstances were within their knowledge, whether it was known to them that the informant was a shop steward, and if they knew of the informant's position of shop steward, what they have to say as to whether or not that matter had any and what degree of influence in the making of the decision.


case_text: the appeal to the High Court in General Motors-Holden's Pty Ltd v Bowling 51 ALJR 235, Mason J (Gibbs, Stephen and Jacobs JJ agreeing; Barwick CJ dissenting) observed that: The unexplained failure of the appellant to call the two Melbourne directors then becomes significant. It left uncontradicted the possibility that the respondent's position as a shop steward was an influential, perhaps even a decisive, consideration in their minds to a lesser extent the appellant's omission to tender the telex messages, other than the telex dispatched at 4.13pm on 5 February which recorded the dismissal and events subsequent thereto, creates another difficulty. I acknowledge that the appellant in its evidence disclosed the evidence of telex messages and that the respondent was at liberty to subpoena them. But to say that this is no answer to the criticism that the onus being on the appellant it was for the appellant to show that the telex messages, comprehensive as we know them to be, did not support the existence of a reason falling within s 5(1)(a). In Bowling , a Mr Gould had made a recommendation to two directors who took the actual decision to dismiss the particular employee. The failure to call evidence from those who took what was described as the "effective decision to dismiss" left uncontroverted the hypothesis that dismissal had taken place for, in the context of the relevant legislation, a prohibited reason. Gibbs J also made this observation: However, it would in my opinion be wrong to think that there is any special difficulty in the way of an employer who seeks to prove that in dismissing an employee he was not actuated by the fact that the employee was a shop steward or other delegate of an organisation. The onus of proving that the fact that the employee held the position was not a substantial and operative factor in the dismissal is to be discharged according to the balance of probabilities and it is not to be made heavier by any presumption that if an employee who is dismissed for disruptive activities happens to be a shop steward the latter circumstance must have had something to do with his dismissal. If in the present case evidence had been given by the directors responsible that the employee was dismissed because he was guilty of misconduct or because his work was unsatisfactory, and that in dismissing him they were not influenced by the fact that he was a shop steward or indeed he was dismissed in spite of the fact and that evidence had been accepted , the onus would have been discharged. [emphasis added] These are observations made, of course, in relation to the quality of the evidence adduced at trial. Nevertheless, in weighing the strength of the prima facie case on the interlocutory application, it is important to note that Blue Star has not put on evidence from the actual decision-maker who is necessarily in the most advantageous position to say precisely what factors influenced the decision to terminate the employment of Mr Coombs and Mr Brown on 19 June 2009. Moreover, it seems to me that on the interlocutory application it is open to the Court to draw an inference that the failure to adduce evidence from the actual decision-maker is consistent with the decision-maker not wishing to say on oath or by affirmation before the Court that the fact of Mr Coombs and Mr Brown having given evidence in the CEPU proceeding before Reeves J was not an operative reason, among other reasons, for the termination of their employment on 19 June 2009. The respondent criticises the formulation of the case for interlocutory relief on the footing that the applicants have not undertaken analysis of the field of employees whose employment was terminated and then sought to demonstrate differential treatment by the employer as against Mr Coombs and Mr Brown. The respondent says that no evidence has been filed by the applicants going to the circumstance of the other eight employees nor any evidence as to how many other persons have recently ceased employment with the respondent. The respondent also says that the applicants have ignored the current economic reality affecting the employment relationship between Blue Star and its employees. It is true that the applicants have not sought to forensically examine the circumstances of those employees within the cohort whose employment has been terminated in recent times. Nor have the applicants examined in detail the circumstances of the 13 employees who gave evidence before the Federal Court. The respondent says that the failure to join any other employees as applicants in the proceeding gives rise to an inference that no contention can be made of termination for a prohibited reason on the part of any of the other employees. It seems to me that the focus must be upon whether the particular applicants, in the circumstances of the case as it is presented on the affidavit evidence, have established a sufficient likelihood of success to justify the preservation of the status quo pending trial. For all the reasons indicated previously, I am satisfied that the applicants have demonstrated a prima facie case in that sense. Moreover, I am further satisfied that if Blue Star is not in a position to file evidence which rebuts the presumption contained in s 809(1) of the Act, there is a real likelihood that the applicants will be entitled to the final relief sought in the proceeding. It may be that evidence from the decision-maker will be forthcoming in the sense contemplated by Gibbs J in General Motors-Holden's Pty Ltd v Bowling which rebuts the presumption. The respondent contends that the balance of convenience is influenced by this consideration. The respondent is required as a matter of economic necessity to reduce its workforce. Accordingly, if a decision is made to reinstate Mr Coombs and Mr Brown on an interlocutory basis pending trial, the respondent will find it necessary to terminate the employment of two other employees and thus those employees will be displaced from employment by operation of the order. The respondent says that the effect of an interlocutory order of reinstatement on third parties unconnected with the proceedings means that the balance of convenience does not favour the granting of an interlocutory order. It seems to me that this consideration is misplaced. If Mr Coombs and Mr Brown have established a sufficient prospect of success in the proceeding and thus demonstrated a basis upon which there is a sufficient probability of success at trial on the question of whether their employment was terminated unlawfully, it cannot be an answer to interim remedial relief which addresses that serious question of unlawful termination to say that two other employees might be dismissed from employment for, what would be, lawful reasons relating to staff numbers, work demands and other such economic matters. If the termination of the employment of Mr Coombs and Mr Brown occurred unlawfully, the remedy of reinstatement is a remedy available to them. It was not open to Blue Star to terminate their employment for a reason that involved a prohibited reason and thus those employees would have remained part of the employment cohort with the result that if the cohort exceeded the requirements of the company, other employees would have been subject to a termination of employment for non-prohibited reasons, or alternatively, those same employees would have become subject to a dismissal decision for non-prohibited reasons.


case_text: respondent says that the applicants have led no evidence that Mr Coombs and Mr Brown will suffer any detriment beyond the loss of wages and nor is there any evidence to suggest that damages would ultimately not be an adequate remedy both in relation to the period between the dismissal and the final hearing and, ultimately, if the applicants are successful, at trial. The terms and conditions of employment and the legislation regulating aspects of the employment relationship, ought not to be treated as, in effect, an option to comply with the law or pay damages. An employee that demonstrates dismissal from employment for a prohibited reason is, prima facie, entitled to a restoration of the employment relationship. Questions of trust, confidence, a working environment not degraded by personality difficulties and other such matters are relevant considerations in determining whether a restoration of employment ought to be ordered (see for example, Independent Education Union v Geelong Grammar School [2000] FCA 557). In this case, Mr Coombs and Mr Brown seem to be under the ultimate direction and supervision of Mr Mike Walsh. There seems to be no suggestion in any of the evidence from Ms Linnegar that the nature of the workplace or relations between these two men and other employees or Mr Walsh is unable to proceed on a sensible good working basis. Mr McKenzie notes that the current economic environment is constrained and it is likely to be very difficult for Mr Coombs and Mr Brown to obtain other employment. This evidence is consistent with the evidence from Ms Linnegar concerning the present circumstances confronting the company. Although the applicants have not put on extensive evidence about their individual financial circumstances, household situation and other matters which would demonstrate the depth of any particular difficulty confronting either of them due to the loss of their employment, I am satisfied that the order for reinstatement and a restoration of the employment relationship is a sufficiently important form of order that it ought to be made on an interlocutory basis. I am satisfied that the applicants are likely to be successful, as the evidence stands at present, in the proceeding at trial. As to the nature of a reinstatement order in the context of an interlocutory application, Finkelstein J observed in Independent Education Union v Geelong Grammar School at [34] this: Here, however, it must be remembered that reinstatement is a remedy that is available to Dr Holden if he ultimately succeeds in his claim against the school. In the case of dismissal for a prohibited reason, it might be taken to be accepted that, in the ordinary case, reinstatement is the appropriate remedy. It is true, as the High Court pointed out in Slonim v Fellows (1984) 154 CLR 505, that a court should act with some caution before it orders reinstatement because it is an interference with an employer's ordinary rights. But when the dismissal is for a prohibited reason, in particular a reason of the type mentioned in the provisions presently under consideration, the court should not be hesitant in granting the remedy in an appropriate case. Accordingly, Finkelstein J restrained the respondent from giving effect to a notice of termination of the employment of Dr Holden. The respondent further contends that the applicants unnecessarily delayed in seeking relief from the Court. However, the termination of their employment was effected on 19 June 2009. Saturday and Sunday was 20 and 21 June 2009. Presumably, Mr Coombs and Mr Brown sought legal advice on or about Monday, 22 June 2009 or Tuesday, 23 June 2009. Instructions must have been taken during those days as the solicitors for Mr Coombs and Mr Brown wrote to Blue Star complaining about the termination on 24 June 2009. The application was filed on 25 June 2009. There is no operative delay on the part of the applicants in seeking relief. Accordingly, I propose to order reinstatement of David Coombs and Craig Brown to employment on the terms and conditions that applied to their employment immediately prior to their dismissal. I propose to give leave to the parties to apply to the Court on two days notice. It may be that circumstances emerge which cause the employer to take steps to terminate the employment of either or both of these men for reasons which do not involve a prohibited reason. In that event, a provision for liberty to apply is necessary to enable the employer, in those circumstances, to vary or discharge the present order.


case_text: applicant further submitted that having regarded the information as significant, the Tribunal was bound to accord the applicant an opportunity to deal with it: see Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ in Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at 95 96. Even if the evidence was given no weight (unlike here), there was a real risk of prejudice arising from the admission of the evidence (see Brennan J in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 629 and Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ in Applicant VEAL at 96 - 97). Because the exercise of the statutory power is conditioned upon the provision of procedural fairness, the denial of procedural fairness in this case vitiates the Tribunal's decision (see Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [59] per Gaudron and Gummow JJ). The applicant observed that most of the evidence contained in the police intelligence reports and housing department records contained allegations of criminal conduct, such as physical assault and intimidation. Very few of the complaints reportedly made against the applicant and recorded in the documents alleged conduct that was not criminal in nature (such as mere 'verbal abuse'). That being the case, to take that evidence into account, the applicant submitted that the Tribunal was required to determine whether the information was 'logically probative' and 'credible, relevant and significant' (see Applicant VEAL of 2002 at 96). According to the applicant, it was also required to be satisfied on the balance of probabilities that the criminal conduct had in fact occurred. The applicant submitted that had the Tribunal applied the correct tests, it would not (and could not) have been satisfied that the evidence proved the commission of criminal offences to the requisite standard. As outlined in relation to ground 1, the evidence contained in the police intelligence reports and housing department records consisted largely of assertions and legal conclusions, hearsay and speculation. Yet the Tribunal took it into account and found that it showed a 'pattern of drug-dealing and lawless violence and intimidation' (at [161]). It follows necessarily, in the applicant's submission, that the Tribunal applied an incorrect standard of proof when assessing that evidence. The applicant submitted that the heart of the Tribunal's error appears at [168] where it states that 'when there is a substantial number of reports from a wide variety of sources all detailing similar conduct, the probability that the picture created is true markedly increases'. This is said to be impermissible reasoning. According to the applicant, it was not open to the Tribunal, when deciding that evidence showed a pattern of criminal behaviour, to find that the volume of allegations placed before the Tribunal made those allegations true or 'markedly' more probably true.


case_text: applicant submitted that while the Tribunal is not bound by the rules of evidence (s 33 of the Administrative Appeals Tribunal Act 1975 (Cth)), it is well established that the right of the Tribunal to inform itself in such manner as it chooses is subject to compliance with the rules of natural justice (see Collins v Minister for Immigration & Ethnic Affairs [1981] FCA 147 ; (1981) 36 ALR 598 ; Barbaro (Saverio) v Minister for Immigration and Ethnic Affairs (1982) 44 ALR 690 and before the Tribunal (1980) 3 ALD 1 at 5). A rationale for the rules of evidence is that decisions should be reached on the best evidence available and by giving the parties affected a fair hearing. This may mean that evidence that is unreliable should not be admitted or, if admitted, should be given little weight or no weight.


case_title: Browne v Dunn [1893] 6 R 67

case_text: the applicant submitted that, as an aspect of the rules of procedural fairness, the rule in Browne v Dunn [1893] 6 R 67 required the Tribunal to put these matters to the applicant. At the forefront of the Minister's submissions was that the applicant had everything that the Tribunal had. The applicant was served with the police intelligence reports and the housing department records prior to the hearing. They were tendered in evidence at the hearing without objection from the applicant. At no point did the applicant say she did not understand what was contained in them or that she had difficulty in knowing what was alleged against her. Indeed, all of this appears to be common ground. The Minister makes the point that the applicant was cross-examined on the housing department records (reference hearing transcript pp 35 39 and 104 120) and that at p 115 it was specifically put to the applicant that she was aggressive and violent towards Housing Commission staff and other tenants, had dealt drugs from her rented home and, when she could stay there no longer, invaded the homes of others. The Minister submitted that this was more than sufficient to indicate the nature of the allegations contained in the housing department records, which are in any event self-explanatory. As the evidence from Detective Inspector Galea was consistent with what had earlier been put to the applicant and he was specifically cross-examined on it on the applicant's behalf, there cannot, the Minister submitted, be any unfairness in this case. The Minister further observed that it was obvious that the applicant would deny being a significant drug dealer in Airds because she had previously denied dealing drugs at all; and her representative in closing submissions specifically denied that the applicant was a 'significant player in the drug trade', or indeed a dealer at all. The Minister submitted that the applicant did not need to be specifically recalled to deny the allegation herself; the rule in Browne v Dunn does not apply to inquisitorial tribunals: Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 ; (2003) 201 ALR 437 at [57] per Gummow and Heydon JJ; and that there was no unfairness in the Tribunal's reception of the evidence from Detective Inspector Galea. Analysis


case_title: Collins v Minister for Immigration & Ethnic Affairs [1981] FCA 147 ; (1981) 36 ALR 598


case_text: response to the applicant's claim that the Tribunal was obliged to seek specific comment from the applicant about each allegation contained in the police intelligence reports and the housing department records, the Minister submitted that procedural fairness does not so require; it must have been obvious to the applicant that the Tribunal may rely on the allegations contained in these reports and records as they were in evidence before the Tribunal: cf. Puafisi v Minister for Immigration & Citizenship [2008] FCAFC 39 at [14] . Moreover, the gist of the allegations contained therein was put to the applicant, and the Tribunal's conclusions from the reports and records were obvious so as not to require specific disclosure: Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576 at 591 592; Pilbara Aboriginal Land Council v Minister for Aboriginal & Torres Strait Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539 at 555 557, referred to with approval in NAOA v Minister for Immigration & Multicultural Affairs [2004] FCAFC 241 at [25] [28]; Puafisi at [20] [23]. It follows, the Minister submitted, that neither more particulars of that evidence nor the Tribunal's conclusions based on that evidence were required to be put to the applicant. The weight to be attached to such evidence is a matter for the Tribunal. Having regard to the provenance and nature of the impugned material, one might expect that the Tribunal would not attach the weight to it that it attached to evidence of the applicant's convictions. In my view, that expectation is fulfilled in the passages from the Tribunal's reasons extracted in [68] and [69] above, but also at [168] of the Tribunal's reasons. But at the end of the day, the weight to be attached to such evidence is a matter for the Tribunal and even if it was obvious, and it certainly is not in this case, that the Tribunal attached greater weight to such evidence than might be thought appropriate having regard to its provenance and nature, that would not constitute a denial of procedural fairness to the applicant on the part of the Tribunal. Contrary to the submission of the applicant, nothing was said in Alphaone at 590 592 to make this 'an orthodox application' of the principles there embraced '... to somewhat unusual facts'. For these reasons, grounds 1 and 2 cannot sustain the application for review. GROUND 3 The Parties' Submissions The applicant submitted that the Tribunal erred in relying on the police intelligence reports and housing department records and in its findings in relation to those records in that it applied an incorrect standard of proof. The applicant relied on the submissions made in relation to ground 1 and made the following further submissions under this ground.


case_text: applicant further submitted that having regarded the information as significant, the Tribunal was bound to accord the applicant an opportunity to deal with it: see Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ in Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at 95 96. Even if the evidence was given no weight (unlike here), there was a real risk of prejudice arising from the admission of the evidence (see Brennan J in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 629 and Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ in Applicant VEAL at 96 - 97). Because the exercise of the statutory power is conditioned upon the provision of procedural fairness, the denial of procedural fairness in this case vitiates the Tribunal's decision (see Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [59] per Gaudron and Gummow JJ).


case_title: Luu v Renevier (1989) 91 ALR 39

case_text: applicant, while acknowledging that the Tribunal is under no general duty with respect to making inquiries, referred nevertheless to what was said by Wilcox J in Prasad v Minister for Immigration & Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155 at 169 170, that a failure to inquire may, in exceptional circumstances, invalidate a decision. The effect of what Wilcox J said in Prasad at 169 170 is that there may be Wednesbury unreasonableness where it is obvious that there is material that is readily available to the decision-maker that is centrally relevant to an issue for determination. Prasad was subsequently endorsed by the Full Court: Luu v Renevier (1989) 91 ALR 39. See also Tickner v Bropho [1993] FCA 208 ; (1993) 40 FCR 183 at 197 198 per Black CJ; C v T (1995) 58 FCR 1 ; see too Minister for Immigration & Citizenship v Le (Kenny J) [2007] FCA 1318 ; (2007) 164 FCR 151 at [65] [67].


case_text: Minister submitted that there is no basis to suggest that the Tribunal did not apply a standard of balance of probabilities. The real complaint, according to the Minister, appears to be that the Tribunal had regard to the housing department records and police intelligence reports when finding that the applicant failed the character test in s 501(6)(c). As the Tribunal found that the applicant failed the test in s 501(6)(a) any error in also finding that the applicant failed the test in s 501(6)(c) is irrelevant. In any case, there was no reason why the Tribunal could not have regard to the housing department records and police intelligence reports. As it noted, they indicated similar behaviour to that for which the applicant had been convicted: [156]. According to the Minister, there is no error in the Tribunal's statement at [168] [169] that a substantial number of similar reports from a wide variety of different sources detailing similar conduct increases the probability that the overall picture is true. This is perfectly rational reasoning in the circumstances of this case. The weight to be attributed to particular evidence was a matter for the Tribunal: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 41 per Mason J. Given the nature of the applicant's convictions there was no reason why the Tribunal could not also have regard to other evidence of similar behaviour by the applicant when considering s 501(6)(c). In the circumstances of this case the Tribunal was not finding criminal conduct in the absence of a conviction on 'slight material' (as cautioned against in Baker at 194C), it was finding that the applicant failed to satisfy the character tests in s 501(6)(a) and (c) 'on the basis of the evidence': [169], which included the applicant's criminal convictions as well as the housing department records and police intelligence reports. As 'criminal conduct' and 'general conduct' are not a dichotomy and may overlap, the Minister submitted that it was perfectly appropriate for the Tribunal to consider both together: Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 440 at [33] [35].


case_title: Minister for Immigration & Citizenship v Le [2007] FCA 1318 ; (2007) 164 FCR 151