case_text: relevance of prior art to the determination of design infringement was considered in Dart Industries Inc and Another v Decor Corporation Pty Ltd (1989) 15 IPR 403 at 409 where Lockhart J said: The scope of a registered design must be determined with reference to the background of the prior art at the priority date and questions of infringement and novelty or originality are connected. In Hecla Foundry Co v Walker, Hunter & Co (1889) 14 App Cas 550 Lord Herschell said at 555: "...one may be able to take into account the state of knowledge at the time of registration, and in what respects the design was new or original, when considering whether any variations from the registered design which appear in the alleged infringement are substantial or immaterial." His Honour continued: Where novelty or originality is discovered in slight variations, there cannot be infringement without a very close resemblance between the registered design and the article alleged to be an infringement of the design. Lloyd-Jacob J in Rosedale Associated Manufacturers Ltd v Airfix Products Ltd [1956] RPC 360 at 364 said that the court would have regard to what was "known and old", and: "...if the particular features which provide a novel conception have not been reproduced in the alleged infringement, the similarity of appearance between the article complained of and the registered design if present must necessarily reside in the common possession of characteristics which are free to everyone to employ". See also Macrae Knitting Mills Ltd v Lowes Ltd [1936] HCA 43 ; (1936) 55 CLR 725 per Dixon J at 731 and L J Fisher & Co Ltd v Fabtite [sic] Industries Pty Ltd (1978) 49 AOJP 3611 per Fullagar J at 3620. His Honour further said at 409: Small differences between the registered design and the prior art will generally lead to a finding of no infringement if there are equally small differences between the registered design and the alleged infringing article. On the other hand, the greater the advance in the registered design over the prior art, generally the more likely that a court will find common features between the design and the alleged infringing article to support a finding of infringement... In view of such finding Technicon must demonstrate a greater degree of difference between the Technicon pan and the registered design to establish that there has been no design infringement: see Dart v Decor at 409. Although expert evidence is not to supplant the role of the Court (see Dart v Decor at 408-409), the Court has considered the expert witnesses' evidence regarding their respective visual comparisons of the registered design with the Technicon pan. Mr Granger said in relation to the registered design: In my view the main "design features" of the Registered Design is the overall curvilinear shape of the bowl [A] (on annexure 'C' and 'D') its relationship to the shroud [B] (on annexure 'C' and 'D') and the shape of the shroud itself. Aspects of this design include the concealing by the shroud of the waste pipe (an "S" trap) and the balanced proportions of these two inter-related elements, being the bowl and the shroud. The design conveys a "clean" overall impression which harmonises the separate elements of bowl and shroud in a simple yet elegant way. Mr Granger considered that the absence of the scalloping feature in the Technicon pan did not alter the curvilinear shape of the overall design and in fact emphasised such curvilinear shape. He noted that the scalloping feature incorporated in the registered design was visible from a side view only, and said: [t]he designer has given minimal visual impact to the scalloping feature by ensuring that it is recessed at the rear of the pan where the consumer is unlikely to perceive it, or perceive it as of visual significance having regard to the whole pan/shroud combination. Accordingly, in my view the ribbed voids are not characteristic of the design and are not readily observable or of visual significance from a design perspective. The Court observes that its visual comparison of the registered design with the alleged infringing object is not to be made by reference to the perspective of the consumer: see Dart v Decor at 409. It follows that no particular perspective should be valued above another, in that the appearance of the relevant pans when viewed in situ in a showroom or bathroom should not be prioritised over any other angle of viewing or perspective of such pans. Mr Granger considered other visual differences between the registered design and the Technicon pan. He opined that the rear supporting rib of the Technicon pan was of a slightly different curvature in side profile only when compared to the registered design and that the inlet pipe of the Technicon pan had a smooth transition into the rear of the bowl when compared to the registered design. However, Mr Granger considered that such differences were insufficient to detract from the main design features of the registered design incorporated in the Technicon pan, namely the overall curvilinear shape of the bowl, the bowl's relationship to the shroud and the shape of the shroud itself. Mr Granger compared the Technicon pan with the BNKS Lara pan and concluded that he could not see 'any significant design similarity' between the Technicon pan and the BNKS Lara pan. Mr Granger opined that the Technicon pan was a reproduction of the design of the Trident pan. Lockhart J in Dart v Decor at 413 indicated that the visual comparison undertaken by the Court involves both first impressions and later impressions. The Court accordingly observes that while the similarities between the Technicon pan compared with the registered design are initially striking, closer inspection reveals certain differences. Principally, the Technicon pan does not incorporate the scalloping feature. The Court also observes that the inside rim of the registered design is not as deep as that of the Technicon pan and that the front of the shroud in the Technicon pan appears to be slightly more rounded than that in the registered design. Additionally, the bowl of the Technicon pan appears to be slightly larger and protrude further forward than the bowl depicted in the registered design, and the rear supporting rib of the Technicon pan is slightly wider than the rear supporting rib of the registered design. Also, the inlet pipe or duct of the Technicon pan has a smooth transition into the rear of the bowl when compared to the registered design where the transition of the inlet pipe into the rear of the bowl is more stepped. There is also a slight curve outward at the floor of the front of the Technicon pan which is not present in the registered design. Each difference is almost imperceptible, but can be observed upon careful inspection. While a person who designs and markets what is found to be an obvious imitation of a registered design may not in fact know of the registered design (see Dart v Decor at 411), the test for determining whether a product constitutes a fraudulent imitation of a registered design requires an examination of the alleged infringer's state of knowledge of the relevant registered design: see Dart v Decor at 411; Dunlop Rubber at 279. To establish the requisite state of knowledge it is not necessary that the alleged infringer had actual knowledge of the fact of registration of the registered design, but merely that the alleged infringer had reason to believe or strongly suspect, or had wilfully disregarded the likelihood of such registration: see Polyaire Pty Ltd v K-Aire Pty Ltd and Others [2005] HCA 32 ; (2005) 221 CLR 287 at [17] - [18] . Where the element of fraud is found to exist a greater degree of difference between the registered design and the infringing object will suffice for a finding of fraudulent imitation: see Dunlop Rubber at 280, approved in Dart v Decor at 411. In Fisher & Paykel the Full Court said at 248: The authorities demonstrate (in particular Malleys , supra) that to support a finding of fraudulent imitation there may be greater differences between the registered design and the offending design than between the registered design and what could be held to be an obvious imitation. This is because the person who has deliberately set out to copy the registered design is presumed more readily to have achieved his object than the person who did so innocently. In this respect designs law, though having no common law base, is analogous to passing off...Nevertheless, whether the imitation is obvious or fraudulent, in the final analysis, as the decision in Malleys , supra, illustrates, the offending article must have the same fundamental or basic design as the article embodied in the registered design. Such passage was cited with approval in Polyaire at [21].


case_outcome: followed

case_text: an article to constitute an obvious imitation it must appear to the eye to be a copy notwithstanding slight differences: see Malleys at 127. In Dunlop Rubber Co. Ld. v Golf Ball Developments Ld. (1931) 48 RPC 268 at 279 Farwell J said that 'obvious' means: ...something which, as soon as you look at it, strikes one at once as being so like the original design, the registered design, as to be almost unmistakable. I think an obvious imitation is something which is very close to the original design, the resemblance to the original design being immediately apparent to the eye looking at the two. The Court concludes that the Technicon pan does not possess such a close resemblance to the registered design that it is 'almost unmistakeable' : see Dunlop Rubber at 279. The Court accordingly finds that the Technicon pan is not an obvious imitation of the registered design. While a person who designs and markets what is found to be an obvious imitation of a registered design may not in fact know of the registered design (see Dart v Decor at 411), the test for determining whether a product constitutes a fraudulent imitation of a registered design requires an examination of the alleged infringer's state of knowledge of the relevant registered design: see Dart v Decor at 411; Dunlop Rubber at 279. To establish the requisite state of knowledge it is not necessary that the alleged infringer had actual knowledge of the fact of registration of the registered design, but merely that the alleged infringer had reason to believe or strongly suspect, or had wilfully disregarded the likelihood of such registration: see Polyaire Pty Ltd v K-Aire Pty Ltd and Others [2005] HCA 32 ; (2005) 221 CLR 287 at [17] - [18] . In Polyaire at [19] the High Court quoted from the decision of Farwell J in Dunlop Rubber at 279 in relation to the distinction drawn between obvious and fraudulent imitation: His Lordship said (41): "... With regard to the word 'fraudulent', fraudulent I think does pre-suppose a knowledge of the registered design. I think it would be difficult for a Court to come to the conclusion that an imitation was fraudulent unless the Court was satisfied that the registered design had been known to the author of the alleged infringing design, and further, it seems to me that 'fraudulent' imports something in the nature of making use of the registered design." Farwell J went on to say of the term "fraudulent" in this context (42): " It does not necessarily import deliberate intention to steal the property of the owner of the registered design ...[A] person may be the author of a fraudulent imitation believing perfectly honestly that he has so altered the registered design as to make them two different designs, and so far as his own mind and his own intention are concerned, he may be honest in that sense." (Emphasis added.) Where the element of fraud is found to exist a greater degree of difference between the registered design and the infringing object will suffice for a finding of fraudulent imitation: see Dunlop Rubber at 280, approved in Dart v Decor at 411. In Fisher & Paykel the Full Court said at 248: The authorities demonstrate (in particular Malleys , supra) that to support a finding of fraudulent imitation there may be greater differences between the registered design and the offending design than between the registered design and what could be held to be an obvious imitation. This is because the person who has deliberately set out to copy the registered design is presumed more readily to have achieved his object than the person who did so innocently. In this respect designs law, though having no common law base, is analogous to passing off...Nevertheless, whether the imitation is obvious or fraudulent, in the final analysis, as the decision in Malleys , supra, illustrates, the offending article must have the same fundamental or basic design as the article embodied in the registered design. Such passage was cited with approval in Polyaire at [21]. Although the evidence before the Court supports the inference of a deliberate intention on the part of Technicon to copy Caroma's design (for example, Mr McCallum was explicit in his intention to 'manufacture or plagiarise' the Caroma range), the Court observes that no such deliberate intention is required to satisfy the requisite mental element: see Dunlop Rubber at 279. Further, the satisfaction of the mental element does not require the alleged infringer to have an actual knowledge of the registration of the design in question: see Polyaire at [18]. A finding of fraud may be made if the Court is satisfied that Technicon had reason to believe, strongly suspected or wilfully shut its eyes to the possibility of the design of the Trident pan being registered: see Polyaire at [17]-[18]. In the present circumstances the Court is satisfied that Technicon 'had reason to believe or strongly suspected' that the design of the Trident pan may have been registered: see Polyaire at [18]. The Court observes that 'there will be no fraudulent imitation unless the accused article is in fact an imitation or a copy' : see Polyaire at [33]. The Court also observes that a fraudulent imitation may be 'less apparent' than an obvious imitation: see Dunlop Rubber at 280. The Technicon pan incorporates significant visual features of the registered design, namely the overall curvilinear design, the outline of the shroud and throat, and the same configuration for the bolt holes. The principal visual detail which distinguishes the Technicon pan from the registered design is the absence of the scalloping feature. However, the absence of the scalloping feature does not sufficiently distinguish the Technicon pan from the registered design. Nor does the adoption of a box rim sufficiently distinguish the Technicon pan from the registered design. The Court is satisfied that the Technicon pan is an imitation or copy of the registered design for the purposes of a finding of fraudulent imitation under s 30 of the 1906 Act.


case_outcome: referred to

case_text: Elconnex Pty Limited v Gerard Industries Pty Limited [1991] FCA 567 ; (1991) 32 FCR 491 , Burchett J said at 503: It seems to me that what makes conduct of the relevant kind fraudulent is the infringer's dishonest concealment of the reality of copying in order to evade being held legally responsible for it. That form of dishonesty can only arise where the copier knows or suspects that his copying will infringe another's legal rights.


case_text: chose not to specify any particular features of the representation in respect of which it claimed a monopoly nor did it designate any particular features of the representations which are to be disregarded in considering the extent of the monopoly protection. In Wanem Pty Ltd v John Tekiela and Another [1990] FCA 372 ; (1990) 19 IPR 435 Gummow J, after being referred to Dalgety Australia Operations Ltd v Seeley (FF) Nominees Pty Ltd (1986) 64 ALR 421 and Turbo Tek Enterprises Inc and Another v Sperling Enterprises Pty Ltd and Another (1989) 88 ALR 524 , said at 439-440: The authorities are collected there for the proposition that where the statement of monopoly does not identify particular features of shape or configuration of the design, the design applies to the appearance of the article as a whole and issues of infringement are to be approached with that in mind. See also Fisher & Paykel Healthcare Pty Ltd v Avion Engineering Pty Ltd [1991] FCA 434 ; (1991) 103 ALR 239 at 246-247; McCallum & Co Pty Ltd v Allen Manufacturing Co Pty Ltd and Another (2001) 52 IPR 550 at [17]-[18]. Accordingly, no aspect of the shape or configuration of the registered design is to be disregarded. Where the element of fraud is found to exist a greater degree of difference between the registered design and the infringing object will suffice for a finding of fraudulent imitation: see Dunlop Rubber at 280, approved in Dart v Decor at 411. In Fisher & Paykel the Full Court said at 248: The authorities demonstrate (in particular Malleys , supra) that to support a finding of fraudulent imitation there may be greater differences between the registered design and the offending design than between the registered design and what could be held to be an obvious imitation. This is because the person who has deliberately set out to copy the registered design is presumed more readily to have achieved his object than the person who did so innocently. In this respect designs law, though having no common law base, is analogous to passing off...Nevertheless, whether the imitation is obvious or fraudulent, in the final analysis, as the decision in Malleys , supra, illustrates, the offending article must have the same fundamental or basic design as the article embodied in the registered design. Such passage was cited with approval in Polyaire at [21].


case_text: considering whether Technicon has infringed Caroma's copyright in the Caroma drawing, namely a copy of the original drawing created by Mr Shahidi, the Court observes that indirect copying is sufficient to establish copyright infringement, provided that the alleged infringing work is in fact a reproduction of the copyrighted work or a substantial part thereof: see Frank M Winstone (Merchants) Ltd v Plix Products Ltd [1985] 1 NZLR 377 at 380 where Cooke J said ' [t] here can be no doubt that in principle a reproduction may be the result of indirect copying...The question must always be whether the work alleged to be an infringement can fairly be said to be a reproduction of the copyright work or of a substantial part of that work' . Such decision was applied by this Court in LED Builders Pty Ltd v Eagle Homes Pty Ltd (1996) 35 IPR 215.


case_text: Futuretronics.com.au Pty Limited v Graphix Labels Pty Ltd (No 2) [2008] FCA 746 Besanko J said at [19]: The meaning of "the flagrancy of the infringement" has been described in various ways. In Ravenscroft v Herbert and New English Library Limited [1980] RPC 193 Brightman J referred to it as "scandalous conduct, deceit and such like; it includes deliberate and calculated copyright infringement"; in Prior v Lansdowne Press Pty Ltd [1977] VR 65 at 70, Gowans J (at 70) referred to it as a "calculated disregard of the plaintiff's rights, or cynical pursuit of benefit"; and in Raben Footwear Pty Ltd v Polygram Records Inc (1997) 75 FCR 88 at 103 flagrancy was said to connote conduct which could probably be described as "glaring, notorious, scandalous" or "blatant". In Polygram at 461-462 Lockhart J said that flagrancy did not include mere mistakes or carelessness and that if the infringer mistakenly believed that he or she owned the relevant copyright, or acted in the bona fide belief that no copyright subsisted in the plaintiff's work then the conduct was not flagrant.


case_text: Court cannot accept Technicon's submission that Technicon's experience in registering its own designs did not generate in its directors' minds the likelihood of the Trident pan designs also being registered. The Court finds implausible Mr McCallum's evidence that in January 2003 he was aware of Technicon registering the design of a tap but in the same month did not turn his mind to the possibility that the design of a toilet pan could have been protected by registration. The Court does not accept Mr McCallum's claim that he considered that toilet designs were 'generic' and therefore did not realise that such designs could be registered. Nor does the Court accept that Mr Rouwenhurst could not have provided some evidence of Technicon's state of knowledge of the possibility of registration of Caroma's design in the Trident pan. The Court infers that Mr Rouwenhurst would not have been able to assist Technicon's defence: see Jones v Dunkel and Another (1959) 101 CLR 298.


case_text: addition to the existence of the requisite mental element in the alleged infringer, it must be established that the allegedly infringing article is based on or derived from the registered design to warrant a finding of fraudulent imitation: see Koninklijke Philips Electronics NV and Another v Remington Products Australia Pty Ltd [1999] FCA 816 ; (1999) 91 FCR 167 at 200. Even if the alleged infringer set out to copy the registered design, and even if the intention in adopting any differences was to disguise such copying, a finding of fraudulent imitation cannot be made unless the impugned article is in fact an imitation or copy: see Polyaire at [33] adopting Besanko J in Polyaire Pty Ltd v K-Aire Pty Ltd & Ors [2003] SASC 41 at [293] .


case_title: LED Builders Pty Ltd v Eagle Homes Pty Ltd (1996) 35 IPR 215


case_text: Court observes that an infringing article can be both an obvious imitation and a fraudulent imitation: see Rose v J. W. Pickavant and Co Ltd (1923) 40 RPC 320 at 332, approved in LJ Fisher & Company Ltd v Fabtile Industries Pty Ltd (1978) 1A IPR 565 at 581-582. The Court is accordingly required to determine whether the Technicon pan is an obvious imitation and/or a fraudulent imitation of the registered design. The relevance of prior art to the determination of design infringement was considered in Dart Industries Inc and Another v Decor Corporation Pty Ltd (1989) 15 IPR 403 at 409 where Lockhart J said: The scope of a registered design must be determined with reference to the background of the prior art at the priority date and questions of infringement and novelty or originality are connected. In Hecla Foundry Co v Walker, Hunter & Co (1889) 14 App Cas 550 Lord Herschell said at 555: "...one may be able to take into account the state of knowledge at the time of registration, and in what respects the design was new or original, when considering whether any variations from the registered design which appear in the alleged infringement are substantial or immaterial." His Honour continued: Where novelty or originality is discovered in slight variations, there cannot be infringement without a very close resemblance between the registered design and the article alleged to be an infringement of the design. Lloyd-Jacob J in Rosedale Associated Manufacturers Ltd v Airfix Products Ltd [1956] RPC 360 at 364 said that the court would have regard to what was "known and old", and: "...if the particular features which provide a novel conception have not been reproduced in the alleged infringement, the similarity of appearance between the article complained of and the registered design if present must necessarily reside in the common possession of characteristics which are free to everyone to employ". See also Macrae Knitting Mills Ltd v Lowes Ltd [1936] HCA 43 ; (1936) 55 CLR 725 per Dixon J at 731 and L J Fisher & Co Ltd v Fabtite [sic] Industries Pty Ltd (1978) 49 AOJP 3611 per Fullagar J at 3620. His Honour further said at 409: Small differences between the registered design and the prior art will generally lead to a finding of no infringement if there are equally small differences between the registered design and the alleged infringing article. On the other hand, the greater the advance in the registered design over the prior art, generally the more likely that a court will find common features between the design and the alleged infringing article to support a finding of infringement...


case_text: seminal explanation of s 30 of the 1906 Act is found in Malleys Limited v J. W. Tomlin Pty. Limited [1961] HCA 77 ; (1961) 180 CLR 120 where the High Court of Australia said at 127: Turning to s. 30 it is apparent that there is infringement in any one of three cases that is, where the design which has been applied is: (i) the registered design (ii) an obvious imitation of the registered design (i.e., not the same but a copy apparent to the eye notwithstanding slight differences) and (iii) a fraudulent imitation (i.e., a copy with differences which are both apparent and not so slight as to be insubstantial but which have been made merely to disguise the copying). Visual comparison will establish (i) or (ii) but a finding of fraudulent imitation must require something more because in such a case visual comparison is not of itself sufficient to establish imitation; otherwise it would be an obvious imitation. Caroma's Further Amended Statement of Claim alleges that the Technicon pan applies the registered design. However, Caroma made no submissions in support of such allegation. The Court is accordingly not required to determine whether design infringement of that kind has occurred. For an article to constitute an obvious imitation it must appear to the eye to be a copy notwithstanding slight differences: see Malleys at 127. In Dunlop Rubber Co. Ld. v Golf Ball Developments Ld. (1931) 48 RPC 268 at 279 Farwell J said that 'obvious' means: ...something which, as soon as you look at it, strikes one at once as being so like the original design, the registered design, as to be almost unmistakable. I think an obvious imitation is something which is very close to the original design, the resemblance to the original design being immediately apparent to the eye looking at the two. Where the element of fraud is found to exist a greater degree of difference between the registered design and the infringing object will suffice for a finding of fraudulent imitation: see Dunlop Rubber at 280, approved in Dart v Decor at 411. In Fisher & Paykel the Full Court said at 248: The authorities demonstrate (in particular Malleys , supra) that to support a finding of fraudulent imitation there may be greater differences between the registered design and the offending design than between the registered design and what could be held to be an obvious imitation. This is because the person who has deliberately set out to copy the registered design is presumed more readily to have achieved his object than the person who did so innocently. In this respect designs law, though having no common law base, is analogous to passing off...Nevertheless, whether the imitation is obvious or fraudulent, in the final analysis, as the decision in Malleys , supra, illustrates, the offending article must have the same fundamental or basic design as the article embodied in the registered design. Such passage was cited with approval in Polyaire at [21].


case_text: Court observes that no particular factor within s 115(4)(b) of the Copyright Act should be prioritised in the Court's consideration of whether additional damages should be awarded: see Raben Footwear Pty Ltd v Polygram Records Inc and Another (1997) 75 FCR 88 at 93, 103. The discretion conferred on the Court in s 115(4) is broad (see Raben at 103; Microsoft Corporation and Others v Goodview Electronics Pty Ltd and Others (2000) 49 IPR 578 at [64]), and if the Court is satisfied that 'any one or more of the circumstances' listed in s 115(4)(b) are present, the Court has a discretion to award additional damages as it considers appropriate: see Raben at 103.


case_title: Polyaire Pty Ltd v K-Aire Pty Ltd & Ors [2003] SASC 41


case_text: a person who designs and markets what is found to be an obvious imitation of a registered design may not in fact know of the registered design (see Dart v Decor at 411), the test for determining whether a product constitutes a fraudulent imitation of a registered design requires an examination of the alleged infringer's state of knowledge of the relevant registered design: see Dart v Decor at 411; Dunlop Rubber at 279. To establish the requisite state of knowledge it is not necessary that the alleged infringer had actual knowledge of the fact of registration of the registered design, but merely that the alleged infringer had reason to believe or strongly suspect, or had wilfully disregarded the likelihood of such registration: see Polyaire Pty Ltd v K-Aire Pty Ltd and Others [2005] HCA 32 ; (2005) 221 CLR 287 at [17] - [18] .


case_text: in the context of copyright infringement was considered in Polygram Pty Ltd and Others v Golden Editions Pty Ltd and Another (1997) 148 ALR 4 at 14 where Lockhart J said: The term "flagrancy" has been variously defined in the reported cases. It was described in Prior v Lansdowne Press Pty Ltd (1975) 12 ALR 685 at 690; 29 FLR 59 at 65 as a "calculated disregard of the plaintiff's rights, or cynical pursuit of benefit". In Ravenscroft v Herbert & New English Library Ltd [1980] RPC 193 it was described at 208 as "the existence of scandalous conduct, deceit and such like; it includes deliberate and calculated copyright infringements"; not mere mistake or carelessness. If the infringer mistakenly believed that he or she owned the relevant copyright ( Prior v Lansdowne Press ) or acted in the bona fide belief that no copyright subsisted in the plaintiff's work ( International Credit Control Ltd v Axelsen [1974] 1 NZLR 695) the conduct is not flagrant. See also Tyco Industries Inc v Interlogo [sic] AG (1987) 9 IPR 133 and on appeal to the Privy Council Interlego AG v Tyco Industries Inc [1988] 3 WLR 678; (1989) 12 IPR 97.


case_text: Court observes that no particular factor within s 115(4)(b) of the Copyright Act should be prioritised in the Court's consideration of whether additional damages should be awarded: see Raben Footwear Pty Ltd v Polygram Records Inc and Another (1997) 75 FCR 88 at 93, 103. The discretion conferred on the Court in s 115(4) is broad (see Raben at 103; Microsoft Corporation and Others v Goodview Electronics Pty Ltd and Others (2000) 49 IPR 578 at [64]), and if the Court is satisfied that 'any one or more of the circumstances' listed in s 115(4)(b) are present, the Court has a discretion to award additional damages as it considers appropriate: see Raben at 103. In Futuretronics.com.au Pty Limited v Graphix Labels Pty Ltd (No 2) [2008] FCA 746 Besanko J said at [19]: The meaning of "the flagrancy of the infringement" has been described in various ways. In Ravenscroft v Herbert and New English Library Limited [1980] RPC 193 Brightman J referred to it as "scandalous conduct, deceit and such like; it includes deliberate and calculated copyright infringement"; in Prior v Lansdowne Press Pty Ltd [1977] VR 65 at 70, Gowans J (at 70) referred to it as a "calculated disregard of the plaintiff's rights, or cynical pursuit of benefit"; and in Raben Footwear Pty Ltd v Polygram Records Inc (1997) 75 FCR 88 at 103 flagrancy was said to connote conduct which could probably be described as "glaring, notorious, scandalous" or "blatant". In Polygram at 461-462 Lockhart J said that flagrancy did not include mere mistakes or carelessness and that if the infringer mistakenly believed that he or she owned the relevant copyright, or acted in the bona fide belief that no copyright subsisted in the plaintiff's work then the conduct was not flagrant. Although s 115(4)(b)(iii) of the Copyright Act provides that any benefit shown to have accrued to the infringer is one of the factors the Court is to take into account in considering whether to award additional damages, the Court observes that the absence of that factor does not prohibit an award under that subsection. As discussed above, the Court's discretion to award additional damages under s 115(4) is not dependent upon all the factors set out in s 115(4)(b) being satisfied; rather, such discretion may be exercised if only one of the factors set out in s 115(4)(b) is present: see Raben at 103. Accordingly, the absence of one of those factors, in this instance, the lack of benefit accruing to Technicon as a result of its infringement of Caroma's copyright, does not preclude the Court from exercising its discretion under s 115(4). Technicon's submission is rejected. Technicon also submits that any copying of the Caroma drawing resulted from a 'lack of attention' . Technicon submits that such carelessness is not sufficient to render Technicon's conduct flagrant. The Court is satisfied that the infringement of copyright has resulted from more than mere carelessness by Mr McCallum, an astute businessman. Mr McCallum's email dated 7 April 2004 (see above) reveals Mr McCallum's intention to utilise the Caroma drawing in the creation of the Technicon drawing.


case_text: Court observes that an infringing article can be both an obvious imitation and a fraudulent imitation: see Rose v J. W. Pickavant and Co Ltd (1923) 40 RPC 320 at 332, approved in LJ Fisher & Company Ltd v Fabtile Industries Pty Ltd (1978) 1A IPR 565 at 581-582. The Court is accordingly required to determine whether the Technicon pan is an obvious imitation and/or a fraudulent imitation of the registered design.


case_text: submits that 'wilfully closing its eyes' to the possibility of Caroma's design being registered is not the appropriate test to determine whether the element of fraud exists for the purpose of a finding of fraudulent imitation. However, in Polyaire at [17] the High Court referred to the decision of Lord Esher MR in The English and Scottish Mercantile Investment Company, Limited v Brunton [1892] 2 QB 700 at 707-708 and noted the inference of fraud that may be drawn when a person 'wilfully shuts his eyes' (see note (35) in [17]). The Court accordingly rejects Technicon's submission that wilful blindness is not an appropriate test for fraud in the present context.


case_text: Court notes that Mr Wynne provided his evidence in chief based upon answers he gave to specific questions from Technicon's solicitors that sought his opinion relating to the differences and similarities between the Technicon pan and the registered design. However, it is not of assistance to catalogue the precise differences and similarities, as this is not the test to be applied. Rather, it is 'the overall appearance of the registered design and the alleged infringing article that must be compared' : see Autocaps (Aust) Pty Ltd and Others v Pro-Kit Pty Ltd and Another 46 IPR 339 per Finkelstein J at [83]; see also Tu and Another v Pakway Australia Pty Ltd (t/as Pakway Plastics) and Others (2004) 62 IPR 637 at [106]-[107].


case_outcome: cited

case_text: chose not to specify any particular features of the representation in respect of which it claimed a monopoly nor did it designate any particular features of the representations which are to be disregarded in considering the extent of the monopoly protection. In Wanem Pty Ltd v John Tekiela and Another [1990] FCA 372 ; (1990) 19 IPR 435 Gummow J, after being referred to Dalgety Australia Operations Ltd v Seeley (FF) Nominees Pty Ltd (1986) 64 ALR 421 and Turbo Tek Enterprises Inc and Another v Sperling Enterprises Pty Ltd and Another (1989) 88 ALR 524 , said at 439-440: The authorities are collected there for the proposition that where the statement of monopoly does not identify particular features of shape or configuration of the design, the design applies to the appearance of the article as a whole and issues of infringement are to be approached with that in mind. See also Fisher & Paykel Healthcare Pty Ltd v Avion Engineering Pty Ltd [1991] FCA 434 ; (1991) 103 ALR 239 at 246-247; McCallum & Co Pty Ltd v Allen Manufacturing Co Pty Ltd and Another (2001) 52 IPR 550 at [17]-[18]. Accordingly, no aspect of the shape or configuration of the registered design is to be disregarded.


case_text: Shahidi said that he created his drawing from earlier drawings and the drawings were prepared during his employment with Caroma. His drawing constitutes 'the expression of original or inventive thought' : see University of London Press Limited v University Tutorial Press Limited [1916] 2 Ch 601 per Peterson J at 608. Although the original drawing is not in evidence, the Court accepts that such drawing is reproduced in the Plumber's Technical Manual, in brochures published by Caroma relating to the Trident suite and on Caroma's website. The Court finds that copyright subsists in the Caroma drawing and that Caroma owns such copyright. At the time Mr Shahidi created the Caroma drawing using Caroma's computer drawing software he was a qualified person for the purposes of s 32(4) of the Copyright Act , being an Australian citizen, and pursuant to s 32(2) of the Copyright Act Caroma owns the copyright in such drawing.


case_title: Wanem Pty Ltd v John Tekiela and Another [1990] FCA 372 ; (1990) 19 IPR 435


case_text: Court must consider all of the circumstances surrounding the infringement in its consideration of whether the infringement was flagrant or resulted from mistake or carelessness: see Wellington Newspapers Ltd v Dealers Guide Ltd [1984] 2 NZLR 66 per McMullin J at 69. Those circumstances include the state of mind of Technicon relating to the design infringement which has been referred to in the Court's finding on fraudulent imitation. Technicon submits that additional damages should not be awarded because there was no purpose or advantage in Technicon publishing a drawing which did not reflect its product.


case_text: The Court has discretion whether to allow the case to be reopened or not. That discretion must be exercised in the interests of justice. An important consideration against allowing an application to reopen is the need to bring finality to litigation. It is also relevant to examine the circumstances in which the need to reopen arose and in particular whether the cross-claimants deliberately chose not to call evidence at the first instance which it wished to call in the reopened case: see Smith v New South Wales Bar Association [1992] HCA 36 ; (1992) 176 CLR 256. As previously mentioned, the cross-claimants deliberately chose not to call evidence as to the separate costs of the applicants suing the respondents other than AIMS despite clear indications from CGU that it would rely on this gap in the evidence. But the interests of justice require that these factors be taken into account against the competing interests of the parties to the litigation. In this case if the application is refused, CCAS loses the chance of arguing that the settlement was reasonable. The interests of justice in this instance lie in allowing CCAS to make that case because the only prejudice suffered by CGU is the delay in the completion of the litigation. Any additional costs which are attributable to the way in which the CCAS has conducted the case can be awarded to CGU and thereby address any prejudice suffered by CGU. Subject to the next question to be considered, I would grant leave to CCAS to reopen its case for the limited purpose of calling evidence and addressing argument on the reasonableness of the agreement to settle the costs of the applicants by payment of $450,000. 14 Aside from the discretionary argument just considered, CGU argued that CCAS should not have leave to reopen its case because there was a legal impediment in the way of CCAS ever establishing that the settlement agreement relating to the applicants' costs was reasonable. The settlement included a payment of the applicants' costs of suing AIMS. This was a liability which was not insured against. It was necessarily unreasonable for CCAS to saddle CGU with a settlement which included an element which was outside the indemnity provided by the policy.


case_outcome: distinguished

case_text: CGU argued that the judgment of Colman J in Lumbermens Mutual Casualty Company v Bovis Lend Lease Limited [2004] EWHC 2197 (Comm) supported this submission. In that case a builder, Bovis, sued an owner, Braehead, for about [sterling]37 million being the monies allegedly outstanding under a building contract. Braehead counter-claimed for about [sterling]46 million for defective and non-compliant work and for about [sterling]49 million for mismanagement, together with [sterling]7 million claimed for liquidated damages. The total of the counter-claim amounted to about [sterling]103 million. The litigation was settled by an agreement under which Braehead agreed to pay Bovis [sterling]15 million. 16 Bovis held a professional liability policy with Lumbermens. It made a claim on the policy following the settlement. Lumbermens refused to indemnify and bought proceedings for a declaration that it had no liability to indemnify under the policy. Colman J upheld Lumbermens' argument. He said that under a liability policy the insurer was not obliged to indemnify unless the liability of the insured was ascertained, in the case of the settlement, by the settlement agreement. Until the liability of the insured was ascertained the insured had no cause of action for an indemnity. He said at [55]: ... a global settlement agreement of the nature of that found in the present case does not satisfy the requirement of ascertainment of loss under these liability insurance policies. It does not impose on the assured any identifiable loss in respect of any identifiable insured eventuality. It merely identifies the overall price paid by the assured as consideration for a contract which conferred on the assured various different benefits including the dropping by Braehead of all claims in respect of the project. 17 The facts of the instant case are distinguishable from those in Lumbermens . In Lumbermens it was not possible to determine from the settlement agreement whether any liability for mismanagement, the only liability which attracted indemnity, was part of the settlement sum. Colman J described the position at [7] thus: ... The method of calculation of that global sum was not identified in the agreement. In particular, there was no indication as to what extent if any Bovis's claim of [sterling]37,778,226 had been treated as validly in excess of [sterling]15 million or which if any of the many detailed elements of Braehead's counterclaim had been treated as valid. Indeed, the terms of the Settlement Agreement gave no indication as to whether the parties agreed that there was any substance in any of the elements of Braehead's counterclaim that is to say whether there was any common position that the claim by Bovis fell to be reduced because it was partly intrinsically defective or because part of Braehead's counterclaim could be set off against Bovis's claim. Nor does it contain any indication as to whether any particular amount was paid to settle such part of the counterclaims as the Insurers could not dispute fell within the scope of the indemnity. 18 In the present case the settlement agreement provided for CCAS to consent to orders that: (b) the Trustee pay the Applicants' costs of the Proceeding including reserved costs and costs of the amendments to the statement of claim, to be taxed on a party/party basis in default of agreement such costs to be paid forthwith. Thus, in this case, the agreement itself specified the liability incurred by the insured. The agreement thereby ascertained the liability of CCAS. Hence, the lack of ascertainment of the liability incurred by the insured which was the reason for Colman J upholding Lumbermens' argument, does not exist in this case. Rather, the present controversy concerns the discharge by the settlement agreement of the liability of CCAS which was not covered by the indemnity provided by CGU. That liability, although not its amount, was obvious from the terms of the settlement agreement. 19 In any event, the principle formulated in Lumbermens has been the subject of controversy. A little over a year after judgment in Lumbermens , Aikens J in Enterprise Oil Limited v Strand Insurance Company Ltd [2006] EWHC 58 (Comm) said at [166- 171]: Therefore, contrary to the view expressed by Colman J at paragraph 47 of his judgment in Lumbermen's , in my view those cases do not establish that it is a pre-condition for recovery under a liability policy that the insured has 'ascertained', by virtue of the wording of a judgment, or award or settlement agreement itself, the 'specific cost to the insured of discharging its insured liability'. In other words, in my view an insured does not have to show an amount of its loss to be claimed under an insured peril covered by the liability policy has been 'specifically ascertained' in the wording of a judgment, award or settlement. I say this for two particular reasons, quite apart from the fact that neither case uses such language. [original emphasis] The most important, if obvious, point is that an insurer always has the right to challenge whether the insured's right to indemnity under the policy has been established. Therefore it has the right to challenge whether the insured was, in fact and law, liable to the third party. It has the right to challenge the quantum of the liability. And it must also have the right to challenge whether, on the facts of the case, the insured's liability to the third party is a loss within the scope of the liability policy, whatever is stated in a judgment, award or settlement. Apart from anything else, the insurer will not be a party to the judgment, award or settlement, unless specifically involved. I accept that in the case of judgments and awards, the conclusion of a competent tribunal on the merits as to liability and quantum is unlikely to be upset in an action on the liability policy. But I cannot see why, in principle, it should not be challenged. In the case of settlements, Colman J himself specifically accepted that an insurer is not bound by a settlement agreement between the insured and the third party as to liability, or quantum. However, Colman J draws a distinction between two functions of 'ascertainment' by judgment, award or settlement. He describes one function as a 'source of evidence' as to liability and quantum of the insured to the third party. He says that cases affirming an insurer's right to challenge issues of liability and quantum in a settlement agreement are concerned only with that function of 'ascertainment'. But he states that the primary function of 'ascertainment' is to identify and 'thereby represent the assured's loss attributable to the relevant liability'. I cannot find that function identified in any of the cases to which Colman J refers. Moreover, it seems to me wrong in principle for the reason that I have already given, ie. that a judgment, award or settlement between an insured and a third party is not concerned to 'ascertain' the loss of the insured under a liability policy; it is irrelevant to those parties. I accept that if the insured has negotiated a settlement which identifies certain heads of claim as being referable to certain causes of action that are within the perils insured under the insured's liability policy, then that will be evidence that the insured has suffered a loss that is covered by the policy. But, as the case of MDIS Ltd v Swinbank shows, that can be challenged by underwriters. If it is challenged, then the question of whether there has been a loss covered by the policy terms will be decided on evidence that is extrinsic to the settlement agreement itself. If that exercise is permissible, which it must be, then I cannot see the basis for saying that an insured has no cause of action against a liability insurer unless it can demonstrate that there was a pre-existing determination, in the settlement agreement itself, of the precise amount of its liability to a third party that is attributable to a peril insured under the liability policy. Therefore, on principle, I think that it is open to an insured to assert and prove, by extrinsic evidence, that it is liable to a third party for a particular sum under a settlement that has been made and that the particular sum represents a loss covered by an insured peril under the liability policy. Equally, if an insured had made a settlement which purported to identify a particular sum as representing the quantum of liability for a particular type of loss that equated to an insured peril under the liability policy, the insurer would be free to challenge the insured's liability to the third party, the quantum of the liability and whether the particular liability identified in the settlement did, in fact, constitute a loss covered by an insured peril under the policy. These comments are obiter. Nevertheless they were adopted by Morrison J, also in obiter, in AIG Europe (Ireland) Limited v Faraday Capital Limited [2006] EWCH 2707 (Comm) at [69]. 20 In the event that I am wrong in my view that Lumbermens is distinguishable, I would find the criticism of that case by Aikens J compelling and prefer the approach adopted by him. I would apply it in this case. The result would be to permit CCAS to lead evidence of the separate costs of the applicants suing the respondents other than AIMS in order to establish that the settlement agreement included a liability which attracted the indemnity provided by CGU and was reasonable. 21 It follows from the above reasoning that CCAS has leave to reopen its case to establish that part of the settlement which represents the reasonable costs of the applicants suing the respondents other than AIMS, and, hence, the amount of the indemnity which CGU has contracted to provide. 22 Ms Dealehr has been a legal costs consultant for nearly 20 years. She has had extensive experience in the area. When the consent order was made on 18 November 2003 consequent upon the settlement of the applicants' claims, Ms Dealehr was engaged by the applicants' solicitors to prepare the bill of costs. She spent a month in the offices of the applicants' solicitors for the purpose and had access to their files. The bill which she produced was 353 pages long. It itemised each step in the litigation with detailed notation. The bill contained just over 2,300 separate items. They were recorded after consideration of the material in the files of the applicants' solicitors and this recording was done approximately at the time when Ms Dealehr considered that material.


case_outcome: considered

case_text: In any event, the principle formulated in Lumbermens has been the subject of controversy. A little over a year after judgment in Lumbermens , Aikens J in Enterprise Oil Limited v Strand Insurance Company Ltd [2006] EWHC 58 (Comm) said at [166- 171]: Therefore, contrary to the view expressed by Colman J at paragraph 47 of his judgment in Lumbermen's , in my view those cases do not establish that it is a pre-condition for recovery under a liability policy that the insured has 'ascertained', by virtue of the wording of a judgment, or award or settlement agreement itself, the 'specific cost to the insured of discharging its insured liability'. In other words, in my view an insured does not have to show an amount of its loss to be claimed under an insured peril covered by the liability policy has been 'specifically ascertained' in the wording of a judgment, award or settlement. I say this for two particular reasons, quite apart from the fact that neither case uses such language. [original emphasis] The most important, if obvious, point is that an insurer always has the right to challenge whether the insured's right to indemnity under the policy has been established. Therefore it has the right to challenge whether the insured was, in fact and law, liable to the third party. It has the right to challenge the quantum of the liability. And it must also have the right to challenge whether, on the facts of the case, the insured's liability to the third party is a loss within the scope of the liability policy, whatever is stated in a judgment, award or settlement. Apart from anything else, the insurer will not be a party to the judgment, award or settlement, unless specifically involved. I accept that in the case of judgments and awards, the conclusion of a competent tribunal on the merits as to liability and quantum is unlikely to be upset in an action on the liability policy. But I cannot see why, in principle, it should not be challenged. In the case of settlements, Colman J himself specifically accepted that an insurer is not bound by a settlement agreement between the insured and the third party as to liability, or quantum. However, Colman J draws a distinction between two functions of 'ascertainment' by judgment, award or settlement. He describes one function as a 'source of evidence' as to liability and quantum of the insured to the third party. He says that cases affirming an insurer's right to challenge issues of liability and quantum in a settlement agreement are concerned only with that function of 'ascertainment'. But he states that the primary function of 'ascertainment' is to identify and 'thereby represent the assured's loss attributable to the relevant liability'. I cannot find that function identified in any of the cases to which Colman J refers. Moreover, it seems to me wrong in principle for the reason that I have already given, ie. that a judgment, award or settlement between an insured and a third party is not concerned to 'ascertain' the loss of the insured under a liability policy; it is irrelevant to those parties. I accept that if the insured has negotiated a settlement which identifies certain heads of claim as being referable to certain causes of action that are within the perils insured under the insured's liability policy, then that will be evidence that the insured has suffered a loss that is covered by the policy. But, as the case of MDIS Ltd v Swinbank shows, that can be challenged by underwriters. If it is challenged, then the question of whether there has been a loss covered by the policy terms will be decided on evidence that is extrinsic to the settlement agreement itself. If that exercise is permissible, which it must be, then I cannot see the basis for saying that an insured has no cause of action against a liability insurer unless it can demonstrate that there was a pre-existing determination, in the settlement agreement itself, of the precise amount of its liability to a third party that is attributable to a peril insured under the liability policy. Therefore, on principle, I think that it is open to an insured to assert and prove, by extrinsic evidence, that it is liable to a third party for a particular sum under a settlement that has been made and that the particular sum represents a loss covered by an insured peril under the liability policy. Equally, if an insured had made a settlement which purported to identify a particular sum as representing the quantum of liability for a particular type of loss that equated to an insured peril under the liability policy, the insurer would be free to challenge the insured's liability to the third party, the quantum of the liability and whether the particular liability identified in the settlement did, in fact, constitute a loss covered by an insured peril under the policy. These comments are obiter. Nevertheless they were adopted by Morrison J, also in obiter, in AIG Europe (Ireland) Limited v Faraday Capital Limited [2006] EWCH 2707 (Comm) at [69].


case_title: AIG Europe (Ireland) Limited v Faraday Capital Limited [2006] EWCH 2707 (Comm)


case_outcome: applied

case_text: Where an insured claims indemnity from an insurer for liability to a third party based on a settlement of that liability with the third party, the insured is entitled to indemnity if the settlement is reasonable: Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd [1998] HCA 38 ; (1998) 192 CLR 603 ( Unity Brokers ). Counsel for CCAS seemed to argue that the insured need only establish that the settlement was concluded and then the onus shifts to the insurer to establish that the settlement was not reasonable. The argument appears wrong on its face because the reasonableness of the settlement is a critical part of the case to be made by the insured. It is a necessary element of its claim. Furthermore, it depends on information which is normally within the knowledge of the insured and outside the knowledge of the insurer. However, counsel for CCAS submitted that the proposition was supported by the majority decision in BNP Paribas v Pacific Carriers Ltd [2005] NSWCA 72. He relied on [263] in the judgment of Giles JA, with whom Sheller JA agreed, as follows: In the present case a reasonable settlement was foreseeable. The burden was on BNP [the indemnifier] to prove the level at which it became unreasonable for PCL [the claimant for indemnity] to fail to settle the London arbitration, but on the view that I have taken on the basis that Bolton was likely to fail in the arbitration. The level is less than the settlement in fact reached, and on the incomplete evidence is something to be arrived at in a fairly broad manner; there being a loss, the court must do its best. In my opinion, PCL could reasonably have settled the London arbitration for a sum up to the order of seventy per cent of SSOE's claims, in round terms $US2,000,000 plus interest should replace the $2,900,000 plus interest. (explanation added)


case_title: BNP Paribas v Pacific Carriers Ltd [2005] NSWCA 72


case_text: a case such as the present where an applicant alleges the existence of a global market or a market extending beyond the bounds of Australia (but which includes Australia), it is necessary that that market be identified in any pleading. It is a material fact or particular: see Auskay International Manufacturing & Trade Pty Ltd v Qantas Airways Ltd [2008] FCA 1458 ; (2008) 251 ALR 166 at 173. The pleadings must identify the relevant goods or services, the geographic boundaries of the market and those involved in close competition within the market whom it is said have engaged in anti-competitive conduct. A single market will thus be identified, which will include a "market in Australia". The applicant has pleaded that there is a global market for the supply of rubber chemicals and an Australian market for those products. The particulars refer to the global market and how elements of that market extend to Australia. For example, the particulars sub-joined to paragraph 12 include the information that the "total demand for rubber chemicals in Australia in the Cartel Period was approximately AUD$120 million". That demand was met exclusively by imports, the majority of which were produced elsewhere by the Respondents and one other company. Reliance was also placed, in the particulars subjoined to paragraph 13, to a passage in the Rubber Chemicals World Data Book 2004 which refers to "a single global market". Reference was made to findings by the European Commission, in December 2005, that cartel arrangements involving the respondents and others led, after 1995, to agreed increases of prices on a global and "multi regional" basis.


case_text: for the applicant conceded that this part of the applicant's case is pleaded "at a level of generality" but contended that "the best available particulars have been provided and the core allegations are clear". Reliance was placed on the decision of Bennett J in Australian Competition and Consumer Commission v April Marketing Services Australia Pty Ltd [2007] FCA 2024 which was said to be "an analogous ACCC cartel claim." I am not persuaded that the pleadings with which her Honour was concerned in April Marketing were analogous (except perhaps in a very broad sense) with those in the present case. Nonetheless Bennett J's reasons, especially at [48] and [49], do emphasise the need for applicants to be accorded some leeway in pleading cartel cases. She was prepared to allow the applicant to plead conclusions and defer the provision of particulars until after discovery. Although the relevant pleadings in April Marketing were not set out in her Honour's reasons, there is nothing to suggest that they did no more than paraphrase or adapt relevant statutory provisions. Due allowance must be made for the fact that the cartel agreements were (it may be assumed) negotiated in secrecy by the representatives of the corporate entities involved. The applicant was, of course, not privy to these discussions and the arrangements to which they gave rise. Despite this, the applicant has been able to draw on a large amount of information which has emerged from foreign proceedings in which regulatory authorities have brought participants in the cartel to account for their conduct. It has been able to prepare the detailed material in Schedule 3 to its amended statement of claim. The particulars of 110 meetings between employees of the relevant companies are itemised in that Schedule. This material includes the relevant dates, participants, locations and the subject matter of each meeting. The existence and inclusion of this material begs the question - if such detailed information is already available to the applicant, why were the pleadings not more specific? Paragraphs 14 to 17 are central to the pleading. Some modest attempts have been made to improve the drafting since my earlier reasons were published. Nonetheless, the principal deficiencies, earlier identified, remain such that these four paragraphs are embarrassing. They should be struck out. Identification of the Markets


case_text: law on what constitutes a "market in Australia" is far from settled. One thing that is clear is that a market which is wholly outside Australia is not comprehended by the statutory definition: see Singapore Airlines Ltd v Australian Competition and Consumer Commission (2009) 260 ALR 244 at 254; Australian Competition and Consumer Commission v Qantas Airways Ltd [2008] FCA 1976 ; (2008) 253 ALR 89 at 112. The existence of a global market which extends into the geographic boundaries of Australia does not, on the other hand, preclude a finding that there exists a "market in Australia".


case_title: Bruce v Odhams Press Ltd [1936] 1 KB 697


case_title: Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association (WA) (1987) 13 FCR 413


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


case_text: does no more than support a general principle that there may, for TPA purposes, exist a market in Australia even though it forms part of a wider international market. Hill J's decision was so understood by Middleton J in Emirates v Australian Competition and Consumer Commission [2009] FCA 312 ; (2009) 255 ALR 35. His Honour considered the meaning of a "market in Australia" in the context of s 45 of the TPA. Significantly, his Honour held (at 53) that: "... the definition of "market in Australia" in s 4E excludes a market that is wholly outside Australia, a conclusion with which I respectfully agree...In my opinion, Hill J in Riverstone Computer Services Pty Ltd v IBM Global Financing Australia Ltd [2002] FCA 1608 ( Riverstone ) was correct in concluding that the fact that a market was global did not signify that there could not be a market in Australia for the same products (or services)". Emirates and the other authorities to which I have referred make it clear that, simply because a market is global, this does not mean that there could not be a market in Australia for the same products. The applicant's pleading is not, in my view, deficient by reason only that it speaks of the respondents being in competition with each other in the Australian market and throughout the world. There may be a market in Australia which forms part of a wider global market. That will, however, be the case only if the same firms are in close competition with each other to attract customers for their goods in both the global market and the Australian market which forms part of the global market. Unfortunately, the applicant does not plead sufficient material facts for the respondents to know clearly whether the applicant is alleging the existence of a global market (of which a market in Australia forms part) or whether it is alleging the existence of a market in Australia and a global market in which, for example, different or additional firms compete for business. The problem is compounded by the variable and imprecise phraseology to which attention has been drawn in paragraph 28 above. Although the applicant's most recent attempt to identify a market in Australia has remedied some of the defects in its original statement of claim, further refinement will be necessary before the necessary degree of precision is achieved. Foreign respondents giving effect to the arrangements in Australia In paragraphs 18 to 25 of the original statement of claim the applicant alleged, in the most general terms, that the foreign respondents gave effect to the cartel arrangements in Australia. There was a notable absence of material facts to establish this part of the applicant's case. In addition, the separate causes of action which needed to be established for the purposes of s 45 (2)(b)(i) and (ii), were rolled up.


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


case_title: HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822


case_text: have drawn attention to further authorities in the course of argument. Most are relevant to particular issues and I will refer to them later in these reasons. There were, however, two passages (among others) of more general application on which counsel for the applicant placed emphasis: In Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 569, at [12], Merkel J cautioned that pleadings are only a 'means to an end': "the relief to be granted on a pleadings motion is a matter of discretion (see Brambles Holdings Ltd v Trade Practices Commission [1979] FCA 80 ; (1979) 28 ALR 191 at 193). Even if I had acceded to the arguments of Esso to a greater extent than I have in my view the Court's individual docket system of case management and its ability to ensure that the proceeding is conducted in a manner which does not unfairly prejudice any of the parties is such that I would not strike out the pleading. Rather, if complaint is made about any particular aspect being embarrassing or prejudicial the Court has ample power to deal with that aspect so as to avoid prejudice or embarrassment in the course of its management of the case. I am satisfied that the causes of action relied upon have been pleaded in a manner that ensures that Esso understands those causes of action and the substance of the allegations made against Esso . Thus, the pleading is fulfilling its basic function at this stage. In all the circumstances I would decline to exercise my discretion to strike out the statement of claim or any part thereof". In State of Queensland , Drummond J held (at [34]) that the nature of the case itself must determine the standard to which the pleadings are held: "[w]here a claim is based on a clandestine compact between a number of respondents, the applicant can be expected to be unable to give precise particulars of material facts sufficient to support its allegation of the making of that compact. In such cases, the entitlement of the respondents to be apprised before trial of the nature of the applicant's case must be "accommodated to the nature of that case itself"...".


case_title: Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd [1991] FCA 557


case_text: my earlier reasons I referred to the principles which govern the exercise of the Court's power to summarily dismiss a claim on the ground that it discloses no reasonable cause of action and the principles which inform the assessment of the adequacy of pleadings. These principles were summarised by Weinberg J in McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 ; (1999) 165 ALR 409 at 415-421. I restate that part of my earlier reasons here for the sake of convenience and because those principles have present application:


case_title: Mitanis v Pioneer Concrete (Vic) Pty Ltd [1997] ATPR 41-591


case_text: applicant submits that its definition of "the Australian market" is sufficient and not productive of confusion, notwithstanding the later references to a global market for the supply of the same rubber chemicals. It relies on the decision of Hill J in Riverstone Computer Services Pty Ltd v IBM Global Financing Australia Ltd [2002] FCA 1608 at [21] to support the proposition that a "global market is a market in Australia if the goods or services are supplied [here]." In Riverstone , Hill J was dealing with an application for pre-action discovery. All he was called on to determine, on an interlocutory basis, was whether there existed reasonable cause to believe that the applicant had or may have had a right to relief against the respondent. His Honour found that the evidence supported the existence of a global market for new and second hand computers and rejected a submission that, simply because no reference was made in the affidavits relied on by the applicant to an Australian market for these products, no such market existed. His Honour said ([at 21]) that: "A global market which includes Australia (and the inference is that any global market did) is arguably a market in Australia if sales are made here (and the evidence shows they are) even if that market might also exist in the United States, Japan, China or any other country which was a member of the European union" (emphasis added). Hill J is not, therefore, to be understood as defining a "market in Australia" simply by reference to the fact goods or services which are supplied elsewhere in the world are also supplied in Australia. Riverstone does no more than support a general principle that there may, for TPA purposes, exist a market in Australia even though it forms part of a wider international market. Hill J's decision was so understood by Middleton J in Emirates v Australian Competition and Consumer Commission [2009] FCA 312 ; (2009) 255 ALR 35. His Honour considered the meaning of a "market in Australia" in the context of s 45 of the TPA. Significantly, his Honour held (at 53) that: "... the definition of "market in Australia" in s 4E excludes a market that is wholly outside Australia, a conclusion with which I respectfully agree...In my opinion, Hill J in Riverstone Computer Services Pty Ltd v IBM Global Financing Australia Ltd [2002] FCA 1608 ( Riverstone ) was correct in concluding that the fact that a market was global did not signify that there could not be a market in Australia for the same products (or services)".


case_title: Singapore Airlines Ltd v Australian Competition and Consumer Commission (2009) 260 ALR 244


case_title: State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499


case_title: Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109


case_text: is thus clear that his Honour's decision does not support the absolute proposition for which the applicant contends. Furthermore, it is to be borne in mind that his Honour was dealing with a "market", whether in Australia or in a wider geographic area of which Australia formed part, in the sense identified in the authorities. It is not necessary, for present purposes, to refer in detail to all of those authorities. Although the concept defies absolute precision in definition it "is a metaphor to describe a range of competitive activities by reference to function, product and geography": see Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193 ; (2003) 131 FCR 529 at 545. The concept was succinctly stated by Fisher J in Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 2) (1979) 26 ALR 609 at 647 where he quoted with approval a passage from a decision of the Trade Practices Tribunal: "The Trade Practices Tribunal considered the concept of market in some detail in Re Queensland Co-operative Milling Association Ltd (1975-6) 8 ALR 481 at 517, where the members said: "A market is the area of close competition between firms or, putting it a little differently, the field of rivalry between them ... Within the bounds of a market there is substitution substitution between one product and another, and between one source of supply and another, in response to changing prices. So a market is the field of actual and potential transactions between buyers and sellers amongst whom there can be strong substitution, at least in the long run, if given a sufficient price incentive"...".


case_title: Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193 ; (2003) 131 FCR 529


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


case_text: respondents successfully moved the Court for orders striking out the original statement of claim: see Wright Rubber Products Pty Ltd v Bayer AG [2008] FCA 1510 ("my earlier reasons"). The shortcomings of this original pleading fell into two broad categories: first, that the applicant had failed to identify with sufficient precision the group members whom it wished to represent, and secondly, that the applicant had failed to plead sufficient material facts to establish a cause of action. More particularly, I identified the following deficiencies in the original statement of claim: Group definition Potential group members would have had difficulty ascertaining whether they were members of the group because of the difficulty in determining whether they had bought "Rubber Products"; The definition of "Rubber Products" was inadequate, which in turn affected the entire statement of claim; and The applicant had not pleaded sufficient material facts to establish that it was a member of the group it sought to represent. The Cartel Arrangements The discrete causes of action arising under sub-paragraphs (i) and (ii) of s 45(2)(a) of the Trade Practices Act 1974 (Cth) ("the TPA") had not been pleaded separately. Identification of the Markets The pleading confused references to the global and Australian markets, referring to the global market at times and the Australian market at other times without explaining why; The pleading did not clearly establish the existence of an Australian, as distinct from a global, market; and There were inconsistencies as to whether the market was for "Rubber Chemicals" or "Rubber Products". Giving effect to the arrangements in Australia I granted leave to the applicant to replead its statement of claim. It has done so. The respondents (other than the fourth respondent) complain that the amended statement of claim is also fatally flawed and should be struck out. They have moved the Court for an order under O 11 rule 16 of the Federal Court Rules .


case_text: Federal Magistrate found that the Tribunal accurately set out the appellant's claims and evidence before it and the further material provided by the appellant and his representative in October 2007 and January 2008 but noted that it did not make findings on all the issues raised in the material when it rejected the entirety of the appellant's evidence and case because of its adverse credit findings: par [9] above. The Federal Magistrate said that: The Tribunal roundly disbelieved the appellant because of the matters set out in par [9] above and that each of those matters were findings that it was open to the Tribunal to make; Those matters were in the scheme of things important matters which were not peripheral to the issues before the Tribunal, including the very important credit issues. Once the Tribunal found that it did not believe the appellant in relation to these matters it was not illogical for the Tribunal to form the view that the entirety of the appellant's evidence about his conversion was untrue. Once the Tribunal decided that it did not believe the appellant, it was open to the Tribunal simply not to believe any of the rest of his evidence, applying the approach adopted in Re Minister for Immigration and Multicultural Affairs, Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 at par [49] and WADU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1252 at par [45]. The Federal Magistrate was satisfied that the reasons the Tribunal gave were sufficient, relying on Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at pars [65]-[67]. Counsel for the appellant criticised the Tribunal for focussing on the manner in which the appellant came to Australia, namely as an occupational trainee, rather than examining whether the appellant was a genuine convert to Christianity. Counsel relied upon the reasoning in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 ; (2004) 214 ALR 264 and submitted that the present case was an example of the observations of the Full Court at par [115]: "By and large fact-finding is a task within jurisdiction, though factual error is not necessarily mutually exclusive of jurisdictional error: Re Minister for Immigration and Multicultural Affairs, Ex parte Applicant S20/2002 (2003) 198 ALR 59 ; 73 ALD 1 ; [2003] HCA 30. Where fact-finding has been conducted in a manner which can be described, as here, as in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way, these considerations may found a conclusion that the posited fair-minded observer might, or indeed would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly. ..." Having rejected the fundamental basis of the appellant's claims, it was not necessary for the Tribunal to make specific findings or reach specific conclusions in relation to other aspects of the evidence of the appellant, such as the letters from clerical persons in Nigeria and Australia supporting his claims, and the Special Rapporteur's Report as the Tribunal found they were outweighed by "serious flaws" in the appellant's evidence. As Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs, Ex parte Applicant S20/2002 (supra) at par [12]: "It was contended that this passage shows that the tribunal member adopted a flawed approach to her evaluation of the evidence, failing to assess the evidence of the applicant/appellant in the light of the corroborating evidence, and giving no weight to the evidence of the corroborating witness for reasons that had nothing to do with the quality of that evidence. The essence of the complaint is that the tribunal failed to consider the evidence as a whole, but first considered, and disbelieved, the evidence of the applicant/appellant, without taking account of the corroboration, and then considered and rejected the corroboration because of the rejection of the evidence of the applicant/appellant. I do not accept that this is a fair criticism of the tribunal's reasons. In my view, all that the member was saying was that, for reasons already given at length, she found the applicant/appellant's story implausible, and in some important respects unbelievable, and that she also rejected the evidence of the corroborating witness, even though she had no separate reason to doubt his credibility other than the reasons that she had already given for rejecting the claim she was considering. The member could have expressed herself more clearly. It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness." The Tribunal did not ignore or disregard the appellant's claim or the evidence upon which he relied. In the section of its decision headed "CLAIMS AND EVIDENCE" the Tribunal set out in considerable detail the claims and evidence upon which the appellant relied. In particular the Tribunal noted that the appellant feared persecution because he was a convert. It is also clear from this section of the Tribunal's decision that it included in its consideration the Tribunal's Guidelines on Credibility. The Tribunal referred to them in its decision and was not obliged to comply strictly with the guidelines given that they are not statutory in nature. In any event, failure to comply with the guidelines does not give rise to an apprehension of bias. It is also clear that the Tribunal took into account and had before it in the consideration of its decision the psychologist's report which, according to the Tribunal: "Stated that he will have difficulty presenting his case well at an RRT hearing. He is likely to become anxious and confused. He has trouble remembering dates and incidents."


case_text: Federal Magistrate found that the Tribunal accurately set out the appellant's claims and evidence before it and the further material provided by the appellant and his representative in October 2007 and January 2008 but noted that it did not make findings on all the issues raised in the material when it rejected the entirety of the appellant's evidence and case because of its adverse credit findings: par [9] above. The Federal Magistrate said that: The Tribunal roundly disbelieved the appellant because of the matters set out in par [9] above and that each of those matters were findings that it was open to the Tribunal to make; Those matters were in the scheme of things important matters which were not peripheral to the issues before the Tribunal, including the very important credit issues. Once the Tribunal found that it did not believe the appellant in relation to these matters it was not illogical for the Tribunal to form the view that the entirety of the appellant's evidence about his conversion was untrue. Once the Tribunal decided that it did not believe the appellant, it was open to the Tribunal simply not to believe any of the rest of his evidence, applying the approach adopted in Re Minister for Immigration and Multicultural Affairs, Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 at par [49] and WADU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1252 at par [45]. The Federal Magistrate was satisfied that the reasons the Tribunal gave were sufficient, relying on Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at pars [65]-[67].


case_text: Federal Magistrate found that the Tribunal accurately set out the appellant's claims and evidence before it and the further material provided by the appellant and his representative in October 2007 and January 2008 but noted that it did not make findings on all the issues raised in the material when it rejected the entirety of the appellant's evidence and case because of its adverse credit findings: par [9] above. The Federal Magistrate said that: The Tribunal roundly disbelieved the appellant because of the matters set out in par [9] above and that each of those matters were findings that it was open to the Tribunal to make; Those matters were in the scheme of things important matters which were not peripheral to the issues before the Tribunal, including the very important credit issues. Once the Tribunal found that it did not believe the appellant in relation to these matters it was not illogical for the Tribunal to form the view that the entirety of the appellant's evidence about his conversion was untrue. Once the Tribunal decided that it did not believe the appellant, it was open to the Tribunal simply not to believe any of the rest of his evidence, applying the approach adopted in Re Minister for Immigration and Multicultural Affairs, Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 at par [49] and WADU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1252 at par [45]. The Federal Magistrate was satisfied that the reasons the Tribunal gave were sufficient, relying on Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at pars [65]-[67]. These findings were squarely within the province of the Tribunal. As McHugh J said in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (supra) at par [67], a finding on credibility "is the function of the primary decision-maker par excellence". Counsel for the appellant accepted that the Tribunal had to be satisfied that the appellant was a genuine convert and criticised the Tribunal for not asking one question during the hearing about the appellant's knowledge of Christianity. It was submitted that the Tribunal misdirected itself by focussing on how the appellant came to Australia and the circumstances surrounding his occupational training visa. It followed, said counsel for the appellant, that the Tribunal could not have been in a position to be satisfied that the appellant was not a genuine convert without having examined that fundamental issue. This submission, even if it be correct as a matter of factual analysis of what the Tribunal did, does not give rise to a jurisdictional error on the part of the Tribunal. The fact finding and assessment of credibility is quintessentially the task for the Tribunal. It is not for the Court, on review, to dictate to the Tribunal the method by which it is to undertake its factual analysis and assessment of the credibility of an applicant. The Tribunal may not have asked a specific question about a specific aspect of the appellant's knowledge of Christianity, but what is clear from a reading of the transcript of the hearing and listening to the audio recording of the hearing is that the Tribunal asked the appellant questions relating to his activities and actions as a Christian. The Tribunal asked the appellant whether, and when, he was baptised as a Christian, when he converted to Christianity, and what was involved in the classes to which he went for preparation to be baptised. In short, this submission of the appellant is no more than a claim to obtain merits review.


case_text: relation to the medical evidence, the Federal Magistrate observed that: "the Tribunal was not disbelieving of the Applicant's medical practitioner. The Tribunal was rather saying that whatever illness the Applicant might have been suffering from had not been observed by it to prevent the Applicant giving his evidence" , and said that this was not an error such as was found in Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515. Furthermore, the Federal Magistrate noted that the selection and assessment of independent country information was a matter for the Tribunal. The Federal Magistrate rejected the submission that the Tribunal had required independent corroboration regarding the appellant's claims about his conversion to Christianity and his asserted dissipation of funds after the purported withdrawal of financial support by the Islamic group and was of the opinion that the Tribunal's finding that it was not readily believable that the appellant's financial resources had all disappeared, was unobjectionable and accorded with the facts as they stood. The second aspect of this submission was that the Tribunal had deprived itself of jurisdiction by imposing a requirement on the appellant that he be formally baptised in order to be at risk of persecution as an apostate from Islam. The Federal Magistrate observed that: "...the Tribunal did not at any stage in its reasons for decision assert that it was necessary for the Applicant to have provided independent evidence of his conversion to Christianity or that baptism was necessary for persecution to occur." As to the claim of bias, the Federal Magistrate read the transcript and listened to the audio recording of the hearing. The Federal Magistrate said that the transcript did not show on its face either unfairness to the appellant or a predisposition amounting to a mind not open to argument and that the audio recording did not show any overt hostility on the part of the Tribunal. The Federal Magistrate was satisfied that the Tribunal member was listening attentively to the appellant and that the appellant's answers were coherent, to the point and showed no undue signs of stress with the exception of the last paragraph of his evidence which did suggest "a certain weariness and distress" on the part of the appellant. The Federal Magistrate found that the transcript and the audio recording did not reveal any improper conduct and that even if he accepted that the Tribunal member had turned her back on the appellant (and he made no such finding) that conduct was at worst an unfortunate discourtesy but did not give rise to a finding of bias.


case_text: reject the submission that the matters identified by the Full Court in that extract applied to the Tribunal's reasoning in the present case. The Tribunal explained why it had not found the appellant's evidence credible and why he was an unsatisfactory witness. It may be that other tribunals or courts may have approached the issue of the credibility of the appellant's evidence on a different basis and considered different aspects of the appellant's evidence in forming a view on the appellant's credibility but it was not for the Federal Magistrate, nor is it for this Court to undertake that task. As Mansfield J said in SZCSC v Minister for Immigration and Multicultural Affairs [2007] FCA 418 at par [55]: "It is not the role of the Court to form a view as to whether it would have reached a different factual conclusion on the evidentiary material."


case_title: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396

case_text: is also clear from the Tribunal's decision that it had before it, and had taken into account, the Special Rapporteur's Report which had been referred to by the appellant's representative in her submission to the Department on 23 July 2007. The appellant accepted that the Tribunal did not have to make separate findings on each piece of evidence which was placed before it but he submitted that although it was open to the Tribunal to prefer the United States State Department Report on Religious Freedom over the Special Rapporteur's Report, the Tribunal should have set out why it preferred that report over the Special Rapporteur's Report. It was not a jurisdictional error or, indeed any error, for the Tribunal not to give this explanation: see, eg, Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at 423; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 ; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 at par [29]; SZALW v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCA 1690 at pars [18], [19] and [29].


case_title: Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294


case_title: Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268


case_title: SZALW v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCA 1690


case_title: SZLGP v Minister for Immigration & Citizenship [2008] FCA 1198

case_text: appellant submitted that there was no evidentiary basis upon which the Tribunal could have decided that the appellant was not a genuine convert for the reasons that the Tribunal set out in its findings. The appellant submitted that in such circumstances jurisdictional error was established. In support of this submission the appellant relied on SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198. In that case the Court quashed the Tribunal's decision on the basis that the Tribunal's determination was based on illogical or irrational findings or inferences of fact which led the Court to the conclusion that the determination of the Tribunal was "an unreasoned decision". The Court said at par [26]: "Here, the inconsistencies (or rather, omissions) in the first appellant's evidence adverted to by the Tribunal are at most minor or trivial. Further, the Tribunal's reasons disclose no legitimate articulable basis for the finding, based on those omissions, that the first appellant fabricated fundamental aspects of his refugee claims. ..." Those observations are not apposite to the Tribunal's reasoning in this case. The Tribunal formed an adverse view of the credibility of the appellant and it explained by reference to a number of particulars why it had reached that conclusion. The matters to which the Tribunal referred were not, in my view, minor or trivial. True it is that they did not bear directly upon any aspect of the appellant's conversion to, or belief in, Christianity. Nevertheless, they did provide a rational basis upon which it was open for the Tribunal to form a view as to the general credibility of the appellant's evidence. The respondent submitted that there was no proper basis for the appellant's submission that the Federal Magistrate had failed to afford the appellant procedural fairness, given that the Federal Magistrate had listened to the audio tape of the Tribunal hearing and read the transcript prepared by the appellant's representative. I am satisfied that there is no substance in the appellant's submission that the Federal Magistrate failed to afford the appellant procedural fairness. The Federal Magistrate was given the opportunity by the appellant and his representative to listen to the audio recording of the hearing before the Tribunal and to read a written transcript of that hearing in addition to their affidavit evidence as to the conduct of the hearing. The Federal Magistrate found that the transcript and the audio recording did not reveal any improper conduct on the part of the Tribunal and concluded that there would be few passages which could properly be described as a few minutes, as described by the appellant's representative, during which the Tribunal member would have had time to turn her back and not take notes in the manner described by the representative. That finding and conclusion was certainly open to the Federal Magistrate on the material before him. During the course of submissions, I was provided with the audio recording of the Tribunal hearing to which I listened, and the written transcript of the hearing which I read. On the basis of what I heard and read I am satisfied that the Federal Magistrate did not err in his reasoning, findings and conclusion referred to in pars [16] and [17] above.


case_title: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264

case_text: for the appellant criticised the Tribunal for focussing on the manner in which the appellant came to Australia, namely as an occupational trainee, rather than examining whether the appellant was a genuine convert to Christianity. Counsel relied upon the reasoning in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 ; (2004) 214 ALR 264 and submitted that the present case was an example of the observations of the Full Court at par [115]: "By and large fact-finding is a task within jurisdiction, though factual error is not necessarily mutually exclusive of jurisdictional error: Re Minister for Immigration and Multicultural Affairs, Ex parte Applicant S20/2002 (2003) 198 ALR 59 ; 73 ALD 1 ; [2003] HCA 30. Where fact-finding has been conducted in a manner which can be described, as here, as in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way, these considerations may found a conclusion that the posited fair-minded observer might, or indeed would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly. ..."


case_title: Anderson v Western Australia [2003] FCA 1423 ; (2003) 134 FCR 1

case_text: The applicant relies on O 13 r 2(1) of the Federal Court Rules ('the Rules') which permits the amendment of ' any document in the proceeding '. That applies to a native title determination application, subject to the constraints imposed by ss 64 and 66B of the [2003] FCA 1423 ; Act ( Anderson v Western Australia (2003) 134 FCR 1 at [36] per French J; Strickland v Western Australia [1999] FCA 221 ; (1999) 89 FCR 117 at [9] per Nicholson J). The constraints imposed by ss 64 and 66B are not relevant to the first motion.