case_text: Apprehension of bias is founded on the notion that justice should not only be done, but it should also be seen to be done: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at 345. The test to be satisfied is "whether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not bring or have brought an impartial mind to bear on the decision": NADH v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 328 ; (2004) 214 ALR 264 at [14] . 50 However, the enquiry is not directed to the personal thought processes of the decision maker, but to the conduct "objectified" though the prism of what a fair minded and informed observer would reasonably apprehend: NADH at [21]. Cases of apprehended bias have been established where there has been constant interruptions and challenges to an applicant's evidence: Re Refugee Review Tribunal; Ex Parte H per Gleeson CJ, Gaudron and Gummow J at 71; VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872 ; (2003) 131 FCR 102 at [68] and [82]; NADH per Allsop J at [118]; a hostile attitude, inappropriate tone or hectoring: VFAB at [50], [52]; a failure to acknowledge mistakes: VFAB at [60]; an aggressive and unfair style of questioning: VFAB at [68] and [82]; conduct amounting to intimidation: Re Refugee Review Tribunal; Ex parte H per Gleeson CJ, Gaudron and Gummow J at [31]; unreasoned conclusions bereft of expressed supporting thought processes or any rational foundation: NADH per Allsop J at [35], [39], [47], [53], and brevity of reasoning when more reasoning is demanded: NADH per Allsop J at [35], [39], [47], [53].


case_outcome: cited

case_text: It is to be remembered that the proceedings before a Tribunal are inquisitorial in nature. There is a distinct difference between judicial officers and Tribunal Members. Judicial officers are required to act both impartially and in a "judicial" manner. A Tribunal Member's role in conducting a review is to "get any information that it considers relevant"; s 424(1) of the Act : NBMB v Minister for Immigration & Citizenship [2008] FCA 149 at [7] . In Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at 435 the court said: Where, as in the present case, credibility is an issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question... Where however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person who's evidence is in question being overborne or intimidated. If that should happen, a fair minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision maker's view.


case_outcome: referred to

case_text: The first question that must be determined is whether there was a departure from the relevant standard of interpretation. The interpretation before the Tribunal must be so incompetent that it prevents the appellant from giving evidence: Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 ; (1999) 92 FCR 6 at [38] . Further the departure from the requisite standard of interpretation must relate to matters which were significant to the appellant's case in the Tribunal as well as to the Tribunal's decision: Perera at [45]. Perera was cited with apparent approval by the Full Court in Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362 ; (2001) 113 FCR 541 at [44] . That passage was itself cited by the Full Court in SCAR at [34]. 30 Perera does not, at [37] or at all, contrary to the reasons of the Federal Magistrate at [57] stand for the proposition that errors in interpreting can be rectified. Nonetheless, I would accept that in certain circumstances errors of that kind may be rectified. This could be done by written submissions to the Tribunal after the hearing: Applicant NAAF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1 at [25] per McHugh, Gummow, Callinan and Heydon JJ and per Kirby J at [75]. It could also be done by the provision of a corrected transcript accepted by the Tribunal as accurate. Indeed, that is what occurred in this case in respect to the question of when the appellant commenced the practice of Falun Gong in China. Such errors however cannot always be rectified in this way and a further oral hearing at which an applicant gives evidence may be necessary. It will at least depend on the nature and extent of the errors. 37 Furthermore, a witness whose answers appear to be unresponsive, incoherent, or inconsistent may well appear to lack candour, even though the unresponsiveness, incoherence or inconsistencies are due to incompetent interpretation: Perera at [49]. The negative impression in the mind of the Tribunal Member conveyed by the appellant's answers, incorrectly interpreted, is, in my opinion, difficult if not impossible to eradicate, after the hearing. Such a negative impression, in one area of evidence, such as the question of when the appellant began to practice Falun Gong in China, will often affect a decision-maker's conclusions in other areas. It is impossible to discern the affect such impressions made at the time may have had on the Tribunal's conclusions as a whole: cf Applicant NAAF of 2002 at [40]. The subsequent characterisation of this evidence as a "misunderstanding" by the Tribunal does not inevitably overcome the unfavourable impression obtained at the hearing by the Tribunal concerning the appellant's credit. 38 The Federal Magistrate, in his reasons at [46] and [53] correctly, in my view, said that the standard of interpreting "left a lot to be desired" and constituted "significant errors in interpreting". However, his Honour at [57]-[58] stated: Quite clearly, the Tribunal has given favourable consideration to the applicants' submissions about the inadequacy of the interpreting and has taken appropriate steps to deal with the matters raised. The Tribunal appears to have done exactly what the applicants asked it to do. If errors in interpreting are made, then they can be rectified (see Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 ; (1999) 92 FCR 6 at [37] per Kenny J). Whilst it appears that there were errors on the part of the interpreter at the hearing, I am satisfied that the Tribunal took appropriate action in dealing with those errors, as the applicants requested. As a result, the applicants were not deprived of their ability to give evidence due to interpreting errors and there is no breach of s 425 of the Act . There is no jurisdictional error. 39 These reasons, with the greatest of respect, do not grapple with the problems which have been identified. They do no more than accept at face value, from the Tribunal's reasons, that the problems caused by poor interpretation had been cured by provision of the transcript. The provision of the transcript was no more, as the covering letter, in effect, said, than an attempt to overcome the negative impression (of the appellant's claims) created by the deficiencies in the interpreting. The covering letter from the appellant's migration agent to which I have referred did not purport to be a cure-all. The letter concluded by inviting the Tribunal to contact the writer, Mr Simon Jeans, if it required any further information or assistance. It did not take up this invitation. There is no independent analysis by the Court below of the transcript and the reasons. In my opinion, this was necessary to the disposition of the application for judicial review. 40 The Federal Magistrate at [41] appears to have placed some weight on the fact that the appellant did not ask for a further hearing to deal with the interpretation problems and that the Tribunal "did exactly what the appellant had asked it to do", namely to consider the transcript. The first respondent, too, submits that in the absence of such a request it was appropriate for the Tribunal to proceed as it did. The covering letter, as I have already indicated, is not to that effect.


case_title: Re Minister for Immigration and Multicultural Affairs; Ex parte AB (2000) 177 ALR 225


case_text: The test of whether a fair minded lay observer would apprehend bias on the part of the Tribunal requires something more than a feeling that conventions of discretion and prudence have been breached. Something more is required, and the apprehension must be firmly established: Re Minister for Immigration and Multicultural Affairs; Ex Parte Epeabaka [2001] HCA 23 ; (2001) 179 ALR 296 at [15] and per Kirby J at [53]-[65], and [89]-[95].


case_text: It is to be remembered that the proceedings before a Tribunal are inquisitorial in nature. There is a distinct difference between judicial officers and Tribunal Members. Judicial officers are required to act both impartially and in a "judicial" manner. A Tribunal Member's role in conducting a review is to "get any information that it considers relevant"; s 424(1) of the Act : NBMB v Minister for Immigration & Citizenship [2008] FCA 149 at [7] . In Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at 435 the court said: Where, as in the present case, credibility is an issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question... Where however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person who's evidence is in question being overborne or intimidated. If that should happen, a fair minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision maker's view. 50 However, the enquiry is not directed to the personal thought processes of the decision maker, but to the conduct "objectified" though the prism of what a fair minded and informed observer would reasonably apprehend: NADH at [21]. Cases of apprehended bias have been established where there has been constant interruptions and challenges to an applicant's evidence: Re Refugee Review Tribunal; Ex Parte H per Gleeson CJ, Gaudron and Gummow J at 71; VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872 ; (2003) 131 FCR 102 at [68] and [82]; NADH per Allsop J at [118]; a hostile attitude, inappropriate tone or hectoring: VFAB at [50], [52]; a failure to acknowledge mistakes: VFAB at [60]; an aggressive and unfair style of questioning: VFAB at [68] and [82]; conduct amounting to intimidation: Re Refugee Review Tribunal; Ex parte H per Gleeson CJ, Gaudron and Gummow J at [31]; unreasoned conclusions bereft of expressed supporting thought processes or any rational foundation: NADH per Allsop J at [35], [39], [47], [53], and brevity of reasoning when more reasoning is demanded: NADH per Allsop J at [35], [39], [47], [53].


case_title: VFAB v Minister for Immigration & Multicultural & indigenous Affairs [2003] FCA 872 ; (2003) 131 FCR 102

case_text: However, the enquiry is not directed to the personal thought processes of the decision maker, but to the conduct "objectified" though the prism of what a fair minded and informed observer would reasonably apprehend: NADH at [21]. Cases of apprehended bias have been established where there has been constant interruptions and challenges to an applicant's evidence: Re Refugee Review Tribunal; Ex Parte H per Gleeson CJ, Gaudron and Gummow J at 71; VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872 ; (2003) 131 FCR 102 at [68] and [82]; NADH per Allsop J at [118]; a hostile attitude, inappropriate tone or hectoring: VFAB at [50], [52]; a failure to acknowledge mistakes: VFAB at [60]; an aggressive and unfair style of questioning: VFAB at [68] and [82]; conduct amounting to intimidation: Re Refugee Review Tribunal; Ex parte H per Gleeson CJ, Gaudron and Gummow J at [31]; unreasoned conclusions bereft of expressed supporting thought processes or any rational foundation: NADH per Allsop J at [35], [39], [47], [53], and brevity of reasoning when more reasoning is demanded: NADH per Allsop J at [35], [39], [47], [53].


case_text: In my opinion, for these reasons the proposed new second ground raising apprehended bias has no reasonable prospect of succeeding on appeal were leave to be granted. On this basis alone I would refuse leave to the appellant to raise this ground not argued before the Court below: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at [26] - [27] . 121 Leave is granted to amend the first ground of appeal in terms of paragraph 1 of the Amended Notice of Appeal dated 4 March 2008. 122 The appeal ought be allowed. I will hear the parties on the question of costs given the divided success in relation to the issues before the Court. I will also hear the parties on the question of costs in connection with the application before the Federal Magistrate. The orders of the Federal Magistrates Court made on 18 October 2007 will be set aside. In lieu, there will be orders that: (a) the decision of the Refugee Review Tribunal dated 28 November 2006 be quashed; (b) the application for review be remitted to the Tribunal, differently constituted, to be re-determined according to law. I certify that the preceding one hundred and twenty-two (122) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 24 July 2008 Counsel for the Appellants: Mr D Jenkins Solicitors for the Appellants: Simon Jeans & Associates Counsel for the Respondent: Ms L. Clegg Solicitors for the Respondent: Sparke Helmore Date of Hearing: 5 March 2008, 18 April 2008 Date of Judgment: 24 July 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/238.html


case_text: While it is accepted that a perfect interpretation is never possible, it is essential that the interpreter serve as an accurate means of communication between the parties: Gaio v The Queen [1964] PGHCA 2 ; (1960) 104 CLR 419 at 433. It is sufficient that the translation is sufficiently accurate so as to convey the idea or concept being communicated: WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCR 511 at [66].


case_text: Section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act") provides that a person such as the applicant may appeal to this Court "on a question of law" from any decision of the Tribunal. The AAT Act provides that such an appeal is to be instituted not later than 28 days after "a document setting out the terms of the decision of the Tribunal is given to the person or within such further time as the [Court] allows": see s 44(2A) of the AAT Act . Where a person makes an application to institute an appeal out of time, the Court will consider the relevant factors, including any explanation the applicant may advance for the delay and the applicant's prospects on the appeal, if leave were granted: see, for example, Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J. There may be other matters too, such as the prejudice to the applicant, or the respondent. 13 It is not suggested that the respondent would suffer any prejudice by reason of the applicant's delay in instituting the appeal if leave were granted. The Tribunal gave its decision on 10 November 2006 and emailed a copy of the decision to the applicant's accountant the same day. The delay in instituting this application on 11 December 2006 is insignificant. Unsurprisingly, the respondent neither consents to nor opposes the application for an extension of time. 14 If there were merit in the appeal, then a refusal to grant leave would plainly prejudice the applicant.


case_title: Ergon Energy Ltd v Commissioner of Taxation [2006] FCAFC 125 ; (2006) 153 FCR 551

case_text: First, the notice of appeal as presently drafted does not state a ground of appeal that this Court can hear and determine. Under s 44(1) of the AAT Act , the subject matter of an appeal from the Tribunal is the question of law that is raised by the appeal: see Ergon Energy Corporation Ltd v Commissioner of Taxation [2006] FCAFC 125 ; (2006) 153 FCR 551 at 572 per Gyles J (dissenting in the application of the principle) and Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at 527 per Branson J.


case_title: Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522


case_text: Moreover, even if the applicant were able to formulate a question of law raising the issues considered by the Tribunal in this case, it is unlikely that error would be shown in the Tribunal's decision. Section 37 of the SGA Act does provide for the amendment of assessments but it was not suggested, and the circumstances do not indicate, that the power to amend might properly have been exercised in the case of the applicant. As the Tribunal noted, there would appear to be no legislative provision that would accord a decision-maker the power to remit all or part of the SGC, or nominal interest and administrative component: see, in this regard, the discussions in Re Jarra Hills Pty Ltd and the Federal Commissioner of Taxation (1997) 37 ATR 1022; Re Truelove and the Commissioner of Taxation [2000] AATA 276 ; Re Kancroft (acting as trustee for the Roberson Family Trust) and Commissioner of Taxation [2004] AATA 113 ; Iwec Pty Ltd v Commissioner of Taxation [2007] AATA 1051 ; and Victorian Patient Transport Pty Ltd v Commissioner of Taxation [2007] AATA 1239. Certainly, the applicant has been unable to refer me to a source of power to do so. It seems to me, therefore, that not only is the draft notice of appeal fundamentally defective, but any possible appeal has little prospect of success.


case_title: Re Truelove and the Commissioner of Taxation [200] AATA 276


case_title: Re Kancroft (acting as trustee for the Robertson Family Trust) and Commissioner of Taxation [2004] AATA 113


case_title: Iwec Pty Ltd v Commissioner of Taxation [2007] AATA 1051


case_title: Victorian Patient Transport Pty Ltd v Commissioner of Taxation [2007] AATA 1239


case_text: The Court's discretion to grant leave to a company to carry on proceedings other than by a solicitor has been considered from time to time. Recently, Bennett J commented in Cytel Pty Ltd v Peoplebank Recruitment Pty Ltd [2006] FCA 985 at [6] that such discretion must be exercised judicially according to the requirements of justice and in favour of the company where sufficient reason is demonstrated. 36 I accept that, as the respondent argued, Mr Bellin produced very little evidence in support of his application to represent the applicant. In other circumstances, this would be reason enough to decline the leave that has been sought. It would appear, however, that a controller has been appointed to the applicant. Given the nature of the application and the particular circumstances of the case, including Mr Bellin's familiarity with the matter, I would grant Mr Bellin the leave he seeks solely for the purposes of my hearing and determining this application. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate: Dated: 5 June 2007 Counsel for the Applicant: The applicant was represented by its director, Mr H. Bellin Solicitor for the Respondent: Mr S. Linden of the Australian Government Solicitor Date of Hearing: 5 June 2007 Date of Judgment: 5 June 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/861.html


case_text: I have carefully considered the evidence of the applicant, and it does not, even at its highest, provide any support for the view that she has been treated unlawfully because of race, colour or ethnicity. To the contrary, the evidence supports the conclusion that there was no causal relationship between the removal of the applicant from the University's premises and any contravention of her human rights or unlawful deprivation of equal opportunity. There must be a connection between the impugned act and the prohibited ground as opposed to a mere belief that there has been a discriminatory course of conduct, and when ascertaining whether this connection exists, a broad interpretation of s 9 of the Act should be preferred: see Baird v State of Queensland [2006] FCAFC 162 ; (2006) 156 FCR 451 at 468. In the present case, the applicant is of the belief that she has been unlawfully discriminated against in the basis of her race or ethnicity. The evidence before the court does not establish the necessary basis for forming a view that a causal relationship existed. For these reasons, I am satisfied that there is sufficient substance in the submissions made for the University to warrant summary judgment being entered in its favour. 16 It is not necessary for me to deal with the other prayers contained in the University's notice of motion as they were all posited in the alternative. However, I will briefly state my position on two of the other prayers. 17 First, I would grant prayer five in the notice, which seeks a stay in this proceeding until the applicant provides security for costs. Given the lengthy history of the matter, the cumbersome detail of the affidavits filed to date, and the period over which the proceedings will be heard, it would be reasonable and appropriate for the proceedings to be stayed until the applicant provides security for costs in the amount of $10,000. In the circumstances, this figure, which was proposed by the University, would be extremely modest. Accordingly, even if I was convinced that there was some reasonable prospect of success in this present application, I would still consider that the proceedings should be stayed until security for costs had been given.


case_text: Section 31A(2) of the Federal Court of Australia Act 1976 (Cth) empowers the Court to give summary judgment against an applicant if it is satisfied that the applicant has "no reasonable prospect of successfully prosecuting the proceeding". This is a less onerous test than that previously stated and applied in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 130, namely that the allegations are "so clearly untenable that [they] cannot possibly succeed". Section 31A was designed to make it easier for an opposing party to strike out a claim or defence: see Boston Commercial Services Pty Ltd v GE Capital Australasia Pty Ltd (2006) 70 IPR 146 at 158; Duncan v Lipscombe Charles Care Service Inc [2006] FCA 458 at [6] . Of course it is essential that the Court must be careful not to do an injustice by summarily dismissing proceedings, or denying an applicant an opportunity to ventilate their case. However, in the present case, the material placed before the Court is not sufficient to satisfy the threshold raised by s 31A(2) because it does not raise a reasonable argument to the effect that there has been a contravention of the Act . The version of the evidence for which the applicant contends merely indicates a reference to the applicant's colour of skin or ethnic origin as a way of identifying her for the purpose of giving effect to the provisions of the Inclosed Lands Protection Act 1901 (NSW), a piece of legislation which applies equally to people of any ethnic origin. Merely to identify a person by reference to characteristics of clothing, ethnicity or skin for the purpose of the application and enforcement of a generally applicable law is not a contravention of the Act .


case_title: Duncan v Lipscombe Charles Care Service Inc [2006] FCA 458


case_outcome: considered

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


case_text: In the present proceeding, the applicant asserts that University security officers and the NSW Police Service identified and removed her from the University's premises by reference to her dark complexion and Sri Lankan background. However, in my view, this belief of the applicant is not determinative when one considers that the appropriate test for unlawful racial discrimination under s 9 of the Act is whether a person has suffered unfair treatment based partly or wholly, or sufficiently connected to, his or her race, colour, descent or national or ethnic background: see Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8 at 33; Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 at [39] . In broad terms, under the Act it is unlawful to do any act involving a distinction based on race, colour, descent or national or ethnic origin which has the purpose or effect of impairing the recognition, enjoyment or exercise on an equal footing of any human right. Moreover, where an act is done for one or more reasons, it is enough that one of the reasons is the race, colour, descent or national or ethnic origin of the relevant person, irrespective of whether it is the dominant or substantial reason for doing the act: see Jones v Scully [2002] FCA 1080 ; (2002) 120 FCR 243 at 273. The applicant claims that she comes within this requirement.


case_text: In the proceeding brought before the Supreme Court of New South Wales, Sully J dismissed the applicant's statement of claim on the basis that the proceedings, although not frivolous, could properly be characterised as vexatious and as an abuse of process of the Court: Paramasivam v University of New South Wales [2006] NSWSC 1189. The claims in that proceeding arose out of claims substantially overlapping those brought in the present proceeding.


case_title: Macedonian Teachers' Association of Victoria Inv v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8


case_outcome: affirmed

case_text: This appeal is from a judgment of the Federal Magistrates Court, delivered on 1 August 2008 and published as SZMDG v Minister for Immigration and Anor [2008] FMCA 1075. The learned federal magistrate dismissed the appellant's application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"), signed on 27 February 2008 and handed down or sent on 18 March 2008. The Tribunal affirmed a decision of a delegate of the first respondent to this appeal, the Minister for Immigration and Citizenship ("the Minister"), to refuse to grant to the appellant a protection visa. 2 By s 36 of the Migration Act 1958 (Cth) ("the Migration Act "), there is a class of visas to be known as protection visas. A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms "Refugees Convention" and "Refugees Protocol" are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967 . It is convenient to call these two instruments, taken together, the "Convention". For present purposes, it is sufficient to note that, pursuant to the Convention, Australia has protection obligations to a person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country 3 The appellant is a citizen of Indonesia, who arrived in Australia on 14 August 2007. On 27 September 2007, he applied to the Department of Immigration and Citizenship for a protection visa. The decision of the Minister's delegate refusing to grant the visa was made on 15 November 2007. The appellant then applied to the Tribunal for review of the delegate's decision.


case_outcome: followed

case_text: reject this submission for the same reasons I rejected the same submission in AA v Board of the Australian Crime Commission [2009] FCA 642 (" AA "). In that case, I said (at [45]-[48]): "The applicant submits that a person otherwise given the summons within the terms of s 29A(3) includes a person given the summons, not only by the Commission or an examiner, but by a person served with the summons, or by a person who has been given the summons by a person who in turn has received the summons from the person served with the summons. The applicant submits that if this proposition is correct then it follows that the Statement should set out the obligations and rights in s 29B(3) and (4) either because the words 'otherwise given, a summons' in s 29B(1) have a different meaning from the same words used in s 29A(3), or because a person 'otherwise given, a summons' can fall within the terms of both s 29B(1) on the one hand and s 29B(2) and (4) on the other. The respondents submit that the Act creates two classes, namely, a class of persons served with a summons or otherwise given a summons by the Commission or an examiner, and a class of persons to whom disclosure is made by a person in the first class or by a person otherwise in the second class. The obligations and rights of the first class are set out in s 29B(1) and (2) and the obligations and rights of the second class are set out in s 29B(3) and (4). On this analysis, the written statement referred to in s 29A(3) must set out the obligations and rights set out in s 29B(1) and (2), but need not set out the obligations and rights in s 29B(3) and (4). In my opinion, the construction of s 29A and s 29B of the ACC Act advanced by the respondents is the correct one. First, the respondents' construction means the words 'otherwise given, the summons' are given the same meaning in the two sections. Secondly, the construction is consistent with the distinction suggested by the structure of s 29B between a person directly involved with the Commission or an examiner in that he or she has been served with a summons or otherwise given a summons by the Commission or an examiner, on the one hand, and a person to whom disclosure has been made, on the other. Thirdly, the respondents' construction avoids the practical difficulties that the applicant's construction creates in terms of the obligation placed on the Chief Executive Officer of the Commission by s 29A(5). This issue was also an issue considered by Jagot J in SS . Again, I have reached my conclusions independently of her Honour's decision. However, with respect, her Honour's reasons neatly summarise why in this case the applicant's submission must be rejected and I take the liberty of repeating them. Her Honour said (at [123]-[127]): 'Three matters are apparent from this scheme. First, the scheme distinguishes between a person 'served, or otherwise given' a summons or notice and a person to whom a person 'served, or otherwise given' a summons or notice makes disclosure. The former is subject to ss 29B(1) and (2). The latter is subject to ss 29B(3) and/or (4). Consideration of the opening words of the provisions of ss 29B(1) to (4) supports this distinction (that is, the fact that s 29B(1) uses the words "served, or otherwise given" whereas ss 29B(3) and (4) refer to persons to whom disclosure has been made or information disclosed). This distinction indicates that the Act establishes two classes of persons for the purpose of these provisions, namely: - (i) persons who are served or otherwise given a summons or notice, and (ii) persons who are the recipient of disclosure by a person served or otherwise given a summons or notice, but who have not themselves been served or otherwise given a summons. This scheme is inconsistent with SS's case that the words 'otherwise given' in s 29A(3) should be read as applying to a person who is the recipient of disclosure by a person served or otherwise given a summons or notice. Second, treating a person to whom disclosure has been made about a summons or notice as a person 'otherwise given' the summons or notice under s 29A(3) undermines the careful scheme of obligations imposed by s 29B. The reason for this is that the words 'or otherwise given' must take the same meaning wherever they appear in the ACC Act. Hence, s 29B(1), on SS's construction, would apply to a person to whom disclosure is made (and who happens to be given a copy of the summons or notice as part of that disclosure) under s 29B(2). Yet such a person would also be subject to the obligations imposed by s 29B(3). Similarly, if that person to whom disclosure is made under s 29B(2) (and who happens to be given a copy of the summons or notice as part of that disclosure) themselves makes a disclosure under s 29B(4) (and happens to be given a copy of the summons or notice as part of that disclosure) the person who is the recipient of the disclosure under s 29B(4) would also become a person subject to the obligations under s 29B(3), yet also (on SS's case) s 29B(1) as well. This makes the statutory scheme nonsensical. Third, and as the ACC pointed out, if SS's construction is correct then the CEO's obligation in s 29A(5) is unworkable. The CEO will know the persons served or otherwise given the summons by the ACC. The CEO cannot know the persons to whom a disclosure has been made in accordance with ss 29B(2) or (4). Such a disclosure is not a matter for the CEO. It is a matter for the person served or otherwise given the summons or notice by the ACC and the recipient of the disclosure. Yet SS's construction would require the CEO to give written notice of the cancellation of the notation to persons both served or otherwise given the summons or notice by the ACC and persons (unknown to the CEO) to whom such a person made disclosure (and so on in accordance with s 29B(4)). These considerations indicate that the ACC's submission must be accepted.'" "SS" is the decision of Jagot J in SS v Australian Crime Commission (2009) 256 ALR 474. Reasons adequacy of record In AA , I considered whether s 25D of the Acts Interpretation Act applied to an examiner's obligation in s 28(1A) of the Act to record in writing the reasons for his or her decision to issue a summons. I held that it did not. I said (at [29]-[30]): "For s 25D of the Acts Interpretation Act to be engaged, it must be established that s 28(1A) of the ACC Act imposes an obligation on an examiner to give written reasons for his or her decision to issue a summons. In my opinion, the applicant cannot establish that matter. Section 28 does not impose an obligation on an examiner to give reasons to an examinee or to give the written record of his reasons to an examinee: Barnes v Boulton [2004] FCA 1219 ; (2004) 139 FCR 356. That decision was not challenged by the applicant. In the course of his decision in that case, Finn J said (at 363-364 [28]-[29]): 'It is important to note that the present application is not one for judicial review of the examiner's decision. Rather it asserts an entitlement to be provided with Mr Boulton's record of reasons — an entitlement the satisfaction of which is said to be a precondition to the holding of the examination. The short answer to the claim is that s 28(1A) in its setting gives no such right expressly and there is no conceivable basis in this context for implying such a right: cf R v Young [1999] NSWCCA 166 ; (1999) 46 NSWLR 681 at 686 ff; let alone for making the provision of such reasons a jurisdictional precondition to the holding of an examination. Neither context nor legislative purpose: cf Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14 ; (2004) 78 ALJR 585 at [11] ; and see generally Spigelman, 'The poet's rich resource: Issues in statutory interpretation' (2001) 21 Aust Bar Rev 224 ; lend any support to such an implication. The legislative judgment not to provide a right to reasons can only be regarded as deliberate, the more so as the ACC Act contemplates that decisions under this Act may be the subject of an application under the ADJR Act: s 57; but the ADJR [sic] gives no right to reasons under s 13 for such decisions. The clear purpose of s 28(1A) is both to focus and enhance decision making and to provide an accountability mechanism by requiring the creation of an 'audit trail'. Under s 59 of the ACC Act, that record is potentially available on request to the portfolio Minister and to the Parliamentary Joint Committee on the Australian Crime Commission that is constituted under Pt III of the ACC Act: and see ss 54 and 55 for that Committee's powers and duties. As is not uncommon with investigative agencies, the Parliament has counterbalanced the secrecy regime it has erected to ensure the effectiveness of the ACC's investigations with a measure of public accountability through a dedicated parliamentary oversight committee: see eg Intelligence Services Act 2001 (Cth). A right such as the applicant propounds would be an alien presence in such a statutory scheme.' In my opinion, an obligation to record in writing the reasons for a decision or act (which is the obligation imposed by s 28(1A) of the ACC Act) is quite different from an obligation to give written reasons for a decision (which is the obligation postulated by s 25D of the Acts Interpretation Act ). The latter, no doubt, includes giving written reasons to the person affected by the decision and publishing written reasons. The obligation in s 28(1A) to record in writing the reasons for the issue of a summons does not engage the obligation in s 25D of the Acts Interpretation Act to set out in an instrument giving the reasons the findings on material questions of fact and to refer to the evidence or other material on which those findings are based." As in AA , I do not think that s 25D of the Acts Interpretation Act was engaged in relation to an examiner's obligation to record in writing the reasons for the issue of the summons. Even if that is wrong, and it was engaged, a failure to comply with it would not lead to the invalidity of the summons by reason of s 28(8)(a). Reasons exercise of power The Act required the second respondent to be satisfied that it was reasonable in all the circumstances to issue the second summons: s 28(1A). The applicant made a number of complaints about the second respondent's reasons which I think, when properly analysed, were challenges to his decision to issue the second summons. There were no detailed submissions on the grounds upon which the decision to issue a summons under s 28(1) may be challenged on an application under s 39B of the Judiciary Act . I gave brief consideration to some of the issues which arise in AA (at [13]-[18]). I propose to proceed on the basis that if the second respondent's decision involved any of the matters which constitute jurisdictional error then it is invalid (see Craig v The State of South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 176-180). In AA , the applicants applied for interlocutory injunctions restraining the holding of their examinations and I heard the applications after judgment was reserved in this proceeding. One of the determinations which was challenged in that case was in fact made at the Board meeting held on 25 June 2008 and Mr Negus signed the determination as Chair of the Board. The same argument was put as is put in this case and the same letter from Mr Keelty to Mr Negus dated 3 June 2008 was relied on by the respondents for the purposes of s 19(1) of the Australian Federal Police Act 1979 (Cth) ("AFP Act"). I held that Mr Negus had and was able to exercise all the powers and was required to perform all the functions and duties of the Commissioner on 25 June 2008. The Commissioner's letter dated 3 June 2008 established that he was absent from Australia and that Mr Negus was the next most senior member who was available. By virtue of s 19(4), the order of seniority was as determined by the Commissioner and it was a reasonable inference from the letter that the Commissioner had determined that Mr Negus was the next most senior member who was available. In AA , I rejected a submission that s 19(1) only operated in relation to powers, functions and duties under the AFP Act. I said (at [60]): "The applicant submits that s 19(1) is restricted to powers, functions and duties under the AFP Act and does not authorise the next most senior member to perform the role of presiding over a meeting of the Board under the ACC Act. The applicant referred to s 69C of the AFP Act in support of his argument. This section gives the Commissioner the power to delegate in writing to certain officers, all or any of the Commissioner's powers, functions or duties under the Act. I am unable to see how s 69C assists in the interpretation of s 19 of the AFP Act, which must be construed according to its terms. The applicant also referred to s 17(4) of the AFP Act, which provides that the Commissioner holds office on such terms and conditions (if any) in respect of matters not provided for by the Act as are determined by the Governor-General. The applicant suggested that this subsection is directed to powers, functions and duties of the Commissioner under other Acts. I do not think that is right. Section 17(4) is directed to terms and conditions of the Commissioner's office not provided for (that is, not dealt with) in the AFP Act. They are to be determined by the Governor-General. In my opinion, the words in s 19(1) of the AFP Act are quite general and there is no reason to restrict them to powers, functions and duties under the AFP Act." The same conclusion applies in this case. On 25 June 2008, Mr Negus was performing, for the time being, the duties of the office or position of Commissioner of the Australian Federal Police. In AA , the respondents submitted that fact engaged s 20 of the Acts Interpretation Act , which is in the following terms: "20 Mention of an officer in general terms Where in an Act any person holding or occupying a particular office or position is mentioned or referred to in general terms, such mention or reference shall unless the contrary intention appears be deemed to include all persons who at any time occupy for the time being, or perform for the time being the duties of, the said office or position." I accepted that argument. I said (at [62]-[64]): "The applicant submits that s 20 of the Acts Interpretation Act is not engaged by s 7B(3) and s 7E of the ACC Act because the reference to the Commissioner of the Australian Federal Police in s 7B(3) is not a mention or reference to a person holding or occupying a particular office or position in general terms . The submission is that a mention or reference in an Act to, for example, a director of a company or an officer of an organisation would be a mention or reference in general terms, but a mention or reference to an office occupied by one person is not a mention or reference in general terms . A similar issue arose in the case I have heard (see [12]) and I had the benefit of detailed submissions on the point in that case. Both parties referred me to the submissions in that case. In my opinion, the Commissioner of the Australian Federal Police is mentioned or referred to in the ACC Act in general terms , such that the deeming provision in s 20 of the Acts Interpretation Act is engaged. I have reached that conclusion for a number of reasons. First, there are some authorities that touch on s 20 of the Acts Interpretation Act and, so far as they go, they suggest that there is no distinction of the type advanced by the applicant: Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health [1989] FCA 384 ; (1990) 22 FCR 73 at 75 per Gummow J; Registrar of Aboriginal Corporations v Barker (1997) 81 FCR 53 ; Lim v Secretary, Department of Education, Employment and Workplace Relations (No 2) [2008] FCA 1752 at [44] per Bennett J; Gazal Apparel Pty Ltd v Davies (2007) 247 LSJS 391 at 396 [35] per Doyle CJ. Secondly, the subject of what is to be mentioned or referred to in general terms is not the office or position itself, but the person holding or occupying a particular office or position. There is no reason why that should be restricted only to those cases where the person is a member of a class of persons. The distinction suggested by the applicant seems to me to be an artificial one. It is not obvious why the deeming provision in s 20 of the Acts Interpretation Act would apply in the case of a deputy commissioner of an organisation, assuming there were two or more deputy commissioners, but not apply in the case of the commissioner of an organisation, or why it would not apply to a person lower down in the hierarchy of an organisation who happens to be the only holder of a particular office or position. Such, however, are the consequences of the interpretation of s 20 of the Acts Interpretation Act proposed by the applicant. Finally, the interpretation of s 20 which I think is the correct one, will not frustrate or impede the intention of Parliament because the deeming provision itself does not apply if a contrary intention appears in the relevant legislation. I should add that I do not think the ACC Act reveals a contrary intention in this case." The same conclusion applies in this case, subject to my consideration of the applicant's submission that the Act reveals a contrary intention. He referred to the composition of the Board (s 7B(2)), its important functions (s 7C), the quorum and voting requirements (s 7F and s 7G) and the provisions dealing with the passing of resolutions outside of Board meetings (s 7J). He submitted that the Act contains only a limited power to delegate (s 59A) and that the Commissioner's power in s 7E(b) of the Act to nominate a person to preside at a meeting of the Board is quite limited. To a point, those matters may be accepted, but I do not think that they reveal a contrary intention within s 20 of the Acts Interpretation Act . The applicant also submitted that if each State Act had an equivalent to s 19(1) of the AFP Act (a matter which was not established) then a consequence of the respondents' argument is that the Board might, at a particular meeting, be composed of quite junior members. It seems to me that is an unlikely possibility, but, in any event it can be said on the other side that it is unlikely that Parliament intended that the Board be unable to transact its business in the event that, for example, a number of police commissioners are absent from duty or from Australia. The determination is not invalid because Mr Negus was Chair of the Board meeting held on 25 June 2008. Purpose of the investigation Clause 9 of the determination sets out the purpose of the investigation (see [22] above).


case_text: applicant submitted that, by reason of s 25D of the Acts Interpretation Act , the second respondent was required to set out in his reasons his findings on material questions of fact and refer to the evidence or other material on which those findings were based, and that he had not done that. It was not in this case contended by the respondents, as it had been by the respondents (albeit in the context of s 29 of the Act) in A B Pty Ltd v Australian Crime Commission (2009) 107 ALD 591 at 607 [54] per Flick J, that s 25D was engaged. I do not need to examine the question of whether the second respondent set out his findings or material questions of fact and referred to the evidence or other material on which those findings were based because, in my opinion, s 25D was not engaged and, even if it was, a failure to comply with its provisions would not lead to the conclusion that the second summons is invalid. Section 25D of the Acts Interpretation Act provides as follows: " 25D Content of statements of reasons for decisions Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression 'reasons', 'grounds' or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based."


case_text: first ground of challenge to the second summons is that it failed to state that the applicant was required to give evidence as a "witness". It is submitted that the second summons was therefore deficient "on its face". The applicant referred to various sections in the Act which refer to a person appearing before an examiner in response to a summons as a witness: ss 25A(6), (7) and (8), 26 , 27 , 28 (heading), 30 and 31 . I leave to one side the fact that a section heading is not part of an Act: Acts Interpretation Act 1901 (Cth) (" Acts Interpretation Act ") s 13(3). There is nothing in the Act which requires a summons to state that the person to whom it is directed is required to give evidence as a witness. It is not clear to me whether, by making this submission, the applicant was suggesting that he could only be required to give evidence as a witness in the sense that he could not be required to give evidence of his own activities or involvement in the activities of others. If he was suggesting that, it is plainly not a proposition supported by the provisions of the Act. The provisions of the Act have the effect of removing the privilege against self-incrimination: s 30(4) and (5) (see A v Boulton [2004] FCAFC 101 ; (2004) 136 FCR 420). A copy of the determination The second ground of challenge to the second summons is that it was not accompanied by a copy of the determination. The Act provides that a copy of the determination must accompany the summons: s 28(2). This ground of challenge was not the subject of any submissions by the applicant. It must be rejected because the evidence tendered by the applicant included evidence from his solicitor that he was served with the second summons and it was accompanied by a copy of the determination. The written statement of rights and obligations


case_text: summons itself refers to a special investigation and it has the determination attached to it. The determination plainly relates to a special investigation. The Statement of Facts and Circumstances document refers to a special investigation and to the determination and the Legal Submissions document refers to the determination and to a special investigation. It seems to me that, looking at the documents as a whole, it has not been established that the second respondent misunderstood the nature of the instrument pursuant to which he was issuing the summons. It is more likely that some of the dangers of using a standard form document have been realised (see the observations of the Full Court of this Court in Australian Crime Commission v NTD8 [2009] FCAFC 86 at [34]). The second ground upon which the applicant challenged the second respondent's decision to issue the second summons was that he misunderstood the exercise he was performing. The applicant referred to the fact that the Legal Submissions document is referred to under the heading, "Material Facts" and to the fact that in one part of the reasons he states that he had regard to "© My knowledge obtained from a recent examination" and yet when setting out his conclusions under the heading "Consideration" he makes no reference to that piece of information. It seems to me that, however one looks at those matters, neither of them establishes an error which is a jurisdictional error. The third ground upon which the applicant challenged the second respondent's decision to issue the second summons is that the second respondent did not consider, or properly consider, the inclusion of the notation referred to in s 29A of the Act. In formulating his reasons for including the notation, there is nothing to prevent the second respondent from relying on each of paragraphs (a), (b) and (c) in s 29A(2) (see [35] above). Furthermore, it is clear from the reference in paragraph 6), "in the terms approved by me", (see [8] above) that he addressed the terms of the notation.


case_text: Commission is a Commonwealth authority created under Commonwealth legislation. On the face of it, the Commission cannot perform or exercise duties, functions or powers under State laws without the consent of the Commonwealth Parliament: Bond v The Queen [2000] HCA 13 ; (2000) 201 CLR 213 at 219 [15] . Section 55A is designed to give that legislative consent in certain circumstances. The section relevantly provides: " Object (1) The main object of this section is to give legislative consent to the conferral on: (a) the ACC; or (b) the Inter-Governmental Committee, the Board, the Chair of the Board, a member of the Board, the CEO, an examiner or a member of the staff of the ACC; or (c) a Judge of the Federal Court or a Federal Magistrate; of certain duties, functions and powers under State laws. ACC (2) A law of a State may confer on the ACC any or all of the following duties, functions or powers: (a) the function of investigating a matter relating to a relevant criminal activity in so far as the relevant crime is, or the relevant crimes are or include, an offence or offences against a law of the State (irrespective of whether that offence or those offences have a federal aspect); (b) a duty, function or power that is for the purposes of an investigation referred to in paragraph (a) and that is either: (i) of the same kind as a duty, function or power conferred on the ACC by this Act or any other Act (whether or not the last-mentioned duty, function or power relates to the investigation of that matter); or (ii) of a kind specified in regulations made for the purposes of this subparagraph; (c) the function of undertaking an intelligence operation in so far as the relevant crime is, or the relevant crimes are or include, an offence or offences against a law of the State (irrespective of whether that offence or those offences have a federal aspect); (d) a duty, function or power that is for the purposes of an operation referred to in paragraph (c) and that is either: (i) of the same kind as a duty, function or power conferred on the ACC by this Act or any other Act (whether or not the last-mentioned duty, function or power relates to that operation); or (ii) of a kind specified in regulations made for the purposes of this subparagraph. (3) The ACC cannot, under a law of a State: (a) investigate a matter relating to a relevant criminal activity; or (b) undertake an intelligence operation; unless the Board has consented to the ACC doing so. Inter-Governmental Committee, Board, Chair of the Board, members of the Board, CEO, examiners and members of staff of the ACC (4) A law of a State may confer on the Inter-Governmental Committee, the Board, the Chair of the Board, a member of the Board, the CEO, an examiner or a member of the staff of the ACC a duty, function or power that: (a) relates to the investigation of a matter relating to a relevant criminal activity in so far as the relevant crime is, or the relevant crimes are or include, an offence or offences against a law of the State (irrespective of whether that offence or those offences have a federal aspect); and (b) is either: (i) of the same kind as a duty, function or power conferred on the Inter-Governmental Committee, the Board, the Chair of the Board, a member of the Board, the CEO, an examiner or a member of the staff of the ACC by this Act or any other Act (whether or not the last-mentioned duty, function or power relates to the investigation of that matter); or (ii) of a kind specified in regulations made for the purposes of this subparagraph. (5) A law of a State may confer on the Inter-Governmental Committee, the Board, the Chair of the Board, a member of the Board, the CEO, an examiner or a member of the staff of the ACC a duty, function or power that: (a) relates to the undertaking of an intelligence operation in so far as the relevant crime is, or the relevant crimes are or include, an offence or offences against a law of the State (irrespective of whether that offence or those offences have a federal aspect); and (b) is either: (i) of the same kind as a duty, function or power conferred on the Inter-Governmental Committee, the Board, the Chair of the Board, a member of the Board, the CEO, an examiner or a member of the staff of the ACC by this Act or any other Act (whether or not the last-mentioned duty, function or power relates to that operation); or (ii) of a kind specified in regulations made for the purposes of this subparagraph. (5A) The CEO or an examiner cannot perform a duty or function, or exercise a power, under a law of a State: (a) relating to the investigation of a matter relating to a relevant criminal activity; or (b) relating to the undertaking of an intelligence operation; unless the Board has consented to the CEO or the examiner doing so. ... (7) Subsections (2), (4), (5), (5B) and (5C) do not extend to a law of a State to the extent to which that law purports to confer any duty that is in contravention of any constitutional doctrine restricting the duties that may be conferred on: (a) authorities of the Commonwealth; or (b) members of authorities of the Commonwealth; or (c) Judges of a court created by the Parliament. ... (14) In this section (other than subsection (9)): intelligence operation means the collection, correlation, analysis or dissemination of criminal information and intelligence relating to a relevant criminal activity." (As to the reason for subsection (7) of s 55A, see R v Hughes (2000) 202 CLR 535.)


case_text: were no detailed submissions on the grounds upon which the decision to issue a summons under s 28(1) may be challenged on an application under s 39B of the Judiciary Act . I gave brief consideration to some of the issues which arise in AA (at [13]-[18]). I propose to proceed on the basis that if the second respondent's decision involved any of the matters which constitute jurisdictional error then it is invalid (see Craig v The State of South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 176-180).


case_text: was told by the parties that there is no case which determines in an authoritative way the scope and effect of s 16. The section was referred to in passing in P v Board of Australian Crime Commission [2006] FCAFC 54 ; (2006) 151 FCR 114 at 121 [24] - [26] and D v Australian Crime Commission [2006] FCA 660 ; (2006) 152 FCR 497 at 503 [31] per Mansfield J. The submission was considered by Mansfield J in D v Australian Crime Commission [2006] FCA 660 ; (2006) 152 FCR 497 at [28] - [60] and rejected. With respect, I think his Honour's decision is correct and I will follow it. The determination is not invalid because it does not identify the class or classes of persons to participate in the investigation. Consent to conferral of State powers


case_text: applicant submits that the determination is invalid because the Board did not, before making the determination, decide that ordinary police methods of investigation into the matters were not likely to be effective. For present purposes, I will proceed on the assumption that the Board had to be satisfied that ordinary police methods of investigation into the matters were not likely to be effective, although I note that on the face of it that is not what s 7C(3) provides. There were no detailed submissions on the construction of the subsection. The short answer to the applicant's submission is that there is no evidence that the Board was not so satisfied. There is no requirement that such a state of satisfaction be set out in the determination and there is simply no evidence that the Board was not so satisfied at the meeting on 25 June 2008. The onus is on the applicant to establish the invalidity of the determination: X v Australian Crime Commission [2004] FCA 1475 ; (2004) 139 FCR 413 at 419-420 [22] per Finn J; Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 164 per McHugh JA.


case_text: was told by the parties that there is no case which determines in an authoritative way the scope and effect of s 16. The section was referred to in passing in P v Board of Australian Crime Commission [2006] FCAFC 54 ; (2006) 151 FCR 114 at 121 [24] - [26] and D v Australian Crime Commission [2006] FCA 660 ; (2006) 152 FCR 497 at 503 [31] per Mansfield J.


case_text: respondents referred to Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 and submitted that s 16 was engaged in circumstances where the determination was not lawfully made because of an error of law which did not go to jurisdiction, or because of a failure to comply with a provision of the Act which was not an inviolable jurisdictional restraint. In other words, they accepted that s 16 was not engaged where the determination was not lawfully made because of jurisdictional error, or a failure to comply with an inviolable jurisdictional restraint. I do not need to consider the scope and effect of s 16 because I do not think any of the grounds upon which the determination is challenged are made out. I turn now to examine those grounds. Chair of the Board The Act deals with the composition of the Board and it provides for a Board composed of 14 members with the Commissioner of the Australian Federal Police as Chair of the Board: s 7B. The Chair has various powers and functions in relation to meetings of the Board. He or she may convene meetings of the Board: s 7D. He or she must preside over meetings of the Board: s 7E(a). There is one exception to this last requirement. A person who is another eligible Commonwealth Board member (defined in s 4) and who is nominated, in writing, by the Chair may preside over a meeting of the Board if the Chair is not present: s 7E(b).


case_text: reject this submission for the same reasons I rejected the same submission in AA v Board of the Australian Crime Commission [2009] FCA 642 (" AA "). In that case, I said (at [45]-[48]): "The applicant submits that a person otherwise given the summons within the terms of s 29A(3) includes a person given the summons, not only by the Commission or an examiner, but by a person served with the summons, or by a person who has been given the summons by a person who in turn has received the summons from the person served with the summons. The applicant submits that if this proposition is correct then it follows that the Statement should set out the obligations and rights in s 29B(3) and (4) either because the words 'otherwise given, a summons' in s 29B(1) have a different meaning from the same words used in s 29A(3), or because a person 'otherwise given, a summons' can fall within the terms of both s 29B(1) on the one hand and s 29B(2) and (4) on the other. The respondents submit that the Act creates two classes, namely, a class of persons served with a summons or otherwise given a summons by the Commission or an examiner, and a class of persons to whom disclosure is made by a person in the first class or by a person otherwise in the second class. The obligations and rights of the first class are set out in s 29B(1) and (2) and the obligations and rights of the second class are set out in s 29B(3) and (4). On this analysis, the written statement referred to in s 29A(3) must set out the obligations and rights set out in s 29B(1) and (2), but need not set out the obligations and rights in s 29B(3) and (4). In my opinion, the construction of s 29A and s 29B of the ACC Act advanced by the respondents is the correct one. First, the respondents' construction means the words 'otherwise given, the summons' are given the same meaning in the two sections. Secondly, the construction is consistent with the distinction suggested by the structure of s 29B between a person directly involved with the Commission or an examiner in that he or she has been served with a summons or otherwise given a summons by the Commission or an examiner, on the one hand, and a person to whom disclosure has been made, on the other. Thirdly, the respondents' construction avoids the practical difficulties that the applicant's construction creates in terms of the obligation placed on the Chief Executive Officer of the Commission by s 29A(5). This issue was also an issue considered by Jagot J in SS . Again, I have reached my conclusions independently of her Honour's decision. However, with respect, her Honour's reasons neatly summarise why in this case the applicant's submission must be rejected and I take the liberty of repeating them. Her Honour said (at [123]-[127]): 'Three matters are apparent from this scheme. First, the scheme distinguishes between a person 'served, or otherwise given' a summons or notice and a person to whom a person 'served, or otherwise given' a summons or notice makes disclosure. The former is subject to ss 29B(1) and (2). The latter is subject to ss 29B(3) and/or (4). Consideration of the opening words of the provisions of ss 29B(1) to (4) supports this distinction (that is, the fact that s 29B(1) uses the words "served, or otherwise given" whereas ss 29B(3) and (4) refer to persons to whom disclosure has been made or information disclosed). This distinction indicates that the Act establishes two classes of persons for the purpose of these provisions, namely: - (i) persons who are served or otherwise given a summons or notice, and (ii) persons who are the recipient of disclosure by a person served or otherwise given a summons or notice, but who have not themselves been served or otherwise given a summons. This scheme is inconsistent with SS's case that the words 'otherwise given' in s 29A(3) should be read as applying to a person who is the recipient of disclosure by a person served or otherwise given a summons or notice. Second, treating a person to whom disclosure has been made about a summons or notice as a person 'otherwise given' the summons or notice under s 29A(3) undermines the careful scheme of obligations imposed by s 29B. The reason for this is that the words 'or otherwise given' must take the same meaning wherever they appear in the ACC Act. Hence, s 29B(1), on SS's construction, would apply to a person to whom disclosure is made (and who happens to be given a copy of the summons or notice as part of that disclosure) under s 29B(2). Yet such a person would also be subject to the obligations imposed by s 29B(3). Similarly, if that person to whom disclosure is made under s 29B(2) (and who happens to be given a copy of the summons or notice as part of that disclosure) themselves makes a disclosure under s 29B(4) (and happens to be given a copy of the summons or notice as part of that disclosure) the person who is the recipient of the disclosure under s 29B(4) would also become a person subject to the obligations under s 29B(3), yet also (on SS's case) s 29B(1) as well. This makes the statutory scheme nonsensical. Third, and as the ACC pointed out, if SS's construction is correct then the CEO's obligation in s 29A(5) is unworkable. The CEO will know the persons served or otherwise given the summons by the ACC. The CEO cannot know the persons to whom a disclosure has been made in accordance with ss 29B(2) or (4). Such a disclosure is not a matter for the CEO. It is a matter for the person served or otherwise given the summons or notice by the ACC and the recipient of the disclosure. Yet SS's construction would require the CEO to give written notice of the cancellation of the notation to persons both served or otherwise given the summons or notice by the ACC and persons (unknown to the CEO) to whom such a person made disclosure (and so on in accordance with s 29B(4)). These considerations indicate that the ACC's submission must be accepted.'" "SS" is the decision of Jagot J in SS v Australian Crime Commission (2009) 256 ALR 474. Reasons adequacy of record I went on to say that, even if s 25D applied, a failure to set out findings on material questions of fact and refer to the evidence or other material on which those findings were based would not, because of s 28(8) , lead to invalidity. I said (at [31]-[34]): "The applicant's argument must fail for another reason, even if (contrary to my conclusion) s 28(1A) of the ACC Act engaged the obligation in s 25D of the Acts Interpretation Act . If I assume s 25D was engaged and I assume the examiner's reasons did not satisfy the requirements of s 25D , the applicant's argument must nevertheless fail because s 28(8)(a) of the ACC Act provides that a failure to comply with s 28(1A), 'in so far as that subsection relates to the making of a record' does not affect the validity of a summons. The applicant submits that s 28(8)(a) only relates to the time when the record is made. In other words, the applicant submits that s 28(8)(a) is only engaged where the record is not prepared at one of the times specified in s 28(1A)(a), (b) and (c). It is not engaged, so the argument proceeds, where the failure relates to the contents of the record. I see no justification for drawing such a distinction. The words describing the failure as one relating to the 'making of [the] record' are wide enough to cover obligations both as to the time at which the record is made and as to its contents. The applicant referred to the fact that the provisions specifying times in s 28(1A), that is to say (a), (b) and (c), were part of the same amendment, that is, the Australian Crime Commission Amendment Act (No 168 of 2007 ) (Cth), which introduced s 28(8). The applicant submits that I should infer from that fact that s 28(8)(a) relates only to the time at which the reasons are to be recorded in writing. I was referred to the Explanatory Memorandum for the Australian Crime Commission Amendment Bill 2007. I reject this contention. For the reasons I have given, there is no reason to read down the words in s 28(8)(a) and in fact the Explanatory Memorandum supports the construction which I think is the proper one. The explanation for the introduction of s 28(8) of the ACC Act is as follows: 'Item 5 Subsections 28(1A) and 28(2) and section 29A prescribe a range of technical requirements for issuing a summons under subsection 28(1). Subsection 28(1A) requires an examiner to record in writing the reasons for the issue of the notice. Subsection 28(2) provides that a summons issued under subsection 28(1) must be accompanied by a copy of the determination by the ACC Board that the intelligence operation is a special operation, or that the investigation into matters relating to federally relevant criminal activity is a special investigation. Section 29A sets out the circumstances in which an examiner who issues a summons under section 28 is required to include in the summons a notation to the effect that the disclosure of information about the summons, or any official matters connected with it, is prohibited (except in circumstances specified in the notice). The section sets out when a notation must or may be made, prescribes the form and content of the notation, and provides for cancellation of the notation. This item adds a new subsection 28(8) to the ACC Act to provide that a failure to comply with the requirements set out in subsections 28(1A) to the extent that the subsection relates to the making of a record and 28(2) and section 29A of the ACC Act does not render a summons issued under subsection 28(1) invalid. The purpose of this amendment is to ensure that ACC operations/investigations are not undermined by reason of an examiner's failure to comply with these technical requirements. This provision does not apply to substantive procedural obligations, such as the requirements under subsection 28(1A) that the examiner must be satisfied that it is reasonable in all the circumstances to issue the summons and under subsection 28(3) that the summons should, other than in limited circumstances, set out the general nature of the matters in relation to which the examiner intends to question the person.' I do not think the second ground has sufficient prospects of success to justify an interlocutory injunction restraining the examiner from conducting the proposed examination of the applicant. The issues raised in the second ground were the same as issues considered by Jagot J in SS . I have decided the issues in the same way as her Honour (see [88]-[92])."


case_title: X v Australian Crime Commission [2004] FCA 1475 ; (2004) 139 FCR 413


case_text: relevant date for consideration of the operation of the total and permanent disablement definition in the policy is the date of the decision of the trustee; see Samaras v Australian Retirement Fund Pty Ltd [2007] FCA 1323 at [18] per Gordon J and Davis v Rio Tinto Staff Superannuation Fund Pty Ltd (2002) 118 FCR 170 at [15] per Heerey J.


case_title: Davis v Rio Tinto Staff Superannuation Fund Pty Ltd (2002) 118 FCR 170


case_text: appeal lies to the Court on a question of law from a determination of the Tribunal; see s 46 of the Act. The Court is not free to interfere with a determination of the Tribunal because it has reservations about or disagrees with the merits of its determination. The Court's role is to consider whether the Tribunal fulfilled its duty under s 37 of the Act; see Constantinides v Du Pont Superannuation Fund Pty Ltd [2002] FCA 534 at [34] . THE ALLEGED ERRORS OF LAW Absence of evidence about return to full time work Counsel for Ms Purcell contends that the Tribunal had no material upon which it could find that Ms Purcell was ever able to work full-time. More properly expressed, the Court considers the point raised by this contention is that the Tribunal could not find that the decisions of the insurer and the trustee were fair and reasonable in the absence of material which showed that Ms Purcell was capable of returning to full-time employment, in the context of there being material which showed she could not so return. In response, counsel for the insurer, contends that the Tribunal analysed the relevant medical evidence and the weight of that evidence was a matter for the Tribunal.


case_outcome: applied

case_title: Edwards v Giudice (1999) 94 FCR 561

case_text: for Ms Purcell submits that the Tribunal gave no proper reasons for its decision. The reasons of the Tribunal disclose a reasoning process, albeit flawed in the failure to examine the consequences of an absence of medical evidence which suggested that a return to full-time work was possible. Generally, as long as a tribunal produces reasons which disclose a reasoning process, it cannot be said to have erred in law by failing to provide proper reasons; see Edwards v Giudice (1999) 94 FCR 561 at [44] [48].


case_text: s 40 of the Act, the Tribunal is required to give written reasons for its decision. As the Full Court said in Edwards v Postsuper Pty Ltd [2007] FCAFC 83 at [20]: Under s 25D of the Acts Interpretation Act 1901 (Cth), reasons contemplated by s 40 of the Complaints Act must include findings on material questions of fact and refer to the evidence or other material on which those findings are based. Here the Tribunal referred to material questions of fact, albeit with the exception of the critical return to full-time work issue, and to the evidence upon which those findings of fact were made by the insurer and trustee so that it could assess the reasonableness and fairness of the decisions before it. The Tribunal complied with its obligation to give written reasons for its decision by setting out findings on material questions of fact and referring to the evidence on which these findings were based, in the context of the findings being those of the trustee and the insurer for the purpose of the Tribunal's assessment of the reasonableness and fairness of those decisions.


case_text: Because this matter has proceeded as if it were an application to strike out both the PFASC and the statement of claim of 12 September 2005 on the ground that it disclose no reasonable cause of action against the second respondents, it is appropriate to assume that the allegations of fact made in the PFASC and the statement of claim of 12 September 2005 will be made out at trial: Northern Land Council v The Commonwealth (No 2) [1987] HCA 52 ; (1987) 75 ALR 210 at 216; Cubillo v The Commonwealth [1999] FCA 518 ; (1999) 89 FCR 528 at 542. The allegations of fact contained in the statement of claim should be accepted at face value: Australian Competition and Consumer Commission v Alice Car & Truck Rentals Pty Ltd trading as Territory Rent-a-car [1997] FCA 129.


case_title: Cubillo v The Commonwealth [1999] FCA 518 ; (1999) 89 FCR 528


case_title: Australian Competition and Consumer Commission v Alice Car & Truck Rentals Pty Ltd trading as Territory Rent-a-car [1997] FCA 129


case_text: I should approach this application on the basis that the PFASC should be allowed to be filed unless it is clearly made out that the pleading discloses no reasonable cause of action, at least against the second respondents. In that regard it would be appropriate to apply the test in General Steel Industries v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 130 and allow the pleading to be filed or, alternatively, in the case of the statement of claim of 12 September 2005, not be struck out unless the cause of action is so untenable that it cannot possibly succeed. The provisions of s 31A of the Federal Court of Australia Act 1976 (Cth) do not apply to this application because this is not an application for summary judgment. 42 The statement of claim should contain in a summary form the material facts upon which the applicant relies but not the evidence upon which those facts are to be proved. The applicant must include sufficient particulars to enable the respondent to the proceeding to know and understand the case which is brought against him or her. The statement of claim should contain such material facts and particulars as will allow the respondent to prevent the respondent from being taken by surprise at the trial and to know the evidence that needs to be obtained. 43 Essentially, three matters are put against the second respondents. First, that the second respondents are vicariously liable for conduct of the first respondent in using the applicant's confidential information in relation to the written quotes. Secondly, the second respondents knowingly participated in the first respondent's breach of his duty of confidence. Thirdly, the second respondents are accessorily liable because they aided, abetted, counselled or procured the first respondent to contravene s 183(1) of the Act or were knowingly concerned in that contravention. In that regard it is pleaded that the second respondents thereby contravened s 183(2) of the Act .


case_text: The second respondents argued that the doctrine of vicarious liability was confined to a tort committed by an employee in the course of that employee's employment and that therefore that this plea should be struck out. In Photo Production v Securicor Transport Limited [1980] UKHL 2 ; [1980] AC 827 at 848, Lord Diplock said that the expression 'vicarious liability' should be confined to liability for tort. There is, however, authority contrary to the second respondents' proposition. In Coulthard v South Australia (1995) 63 SASR 531 (' Coulthard ') the Full Court of the Supreme Court of South Australia was concerned with the publication of confidential information. King CJ said at 535: 'No authority has come to my attention which establishes that vicarious liability of an employer can exist under the equitable doctrine of breach of confidence. Nevertheless a breach of the equitable obligation of confidence is analogous to a common law tort. It is to be expected that equity would follow the law in such circumstances and that the common law doctrine of the vicarious liability in tort of an employer for the acts of employees in the course of their employment would apply in equity to breaches of confidence. It is to be expected that equity would act upon the conscience of the employer by requiring the employer to accept responsibility for the employee's breach of confidence.'


case_text: The second respondents argued that the doctrine of vicarious liability was confined to a tort committed by an employee in the course of that employee's employment and that therefore that this plea should be struck out. In Photo Production v Securicor Transport Limited [1980] UKHL 2 ; [1980] AC 827 at 848, Lord Diplock said that the expression 'vicarious liability' should be confined to liability for tort. There is, however, authority contrary to the second respondents' proposition. In Coulthard v South Australia (1995) 63 SASR 531 (' Coulthard ') the Full Court of the Supreme Court of South Australia was concerned with the publication of confidential information. King CJ said at 535: 'No authority has come to my attention which establishes that vicarious liability of an employer can exist under the equitable doctrine of breach of confidence. Nevertheless a breach of the equitable obligation of confidence is analogous to a common law tort. It is to be expected that equity would follow the law in such circumstances and that the common law doctrine of the vicarious liability in tort of an employer for the acts of employees in the course of their employment would apply in equity to breaches of confidence. It is to be expected that equity would act upon the conscience of the employer by requiring the employer to accept responsibility for the employee's breach of confidence.' 49 King CJ concluded that it was not established that any breach of confidence had occurred in the course of the employer's employment. Perry and Debelle JJ both assumed that the respondent employer could be liable for a breach by its employee of his duty of confidence but, like King CJ, found that what was done was not done in the course of employment. I am unable to find any other authority on that point. (But see Jason Pizer 'Holding an Appointor Vicariously Liable for its Nominee Director's Wrongdoing -- an Australian Roadmap' 1997, Vol 15 Company and Securities Law Journal.) However, this is not the time to decide whether the decision in Coulthard is correct. Having regard to that decision and the dicta of King CJ referred to, it cannot be said on an application of this kind that the pleas in par 24 are untenable. 50 Paragraphs 25 and 26 plead actual knowledge on the part of the two male second respondents. Paragraph 27 also pleads actual knowledge on the part of the two male respondents but from a different time, apparently, to that asserted in par 26. In any event, all three paragraphs, 25, 26 and 27, plead actual knowledge on the part of two of the four second respondents. 51 Paragraph 28 pleads a form of constructive knowledge by reason of the failure of the second respondents to do any of the matters particularised in that paragraph. Each of pars 29, 30, 32 and 33 plead a form of constructive knowledge on the part of the two female second respondents, the knowledge it is said being imputed to them. It is not pleaded how or why the acts and conduct and knowledge of each of the second respondents is imputed to all of them. It may be assumed that each partner's act or conduct or knowledge is imputed to the other by reason of their partnership. That may not be important. More importantly, the knowledge of the female second respondents and any imputed knowledge obtained by all respondents by reason of the acts or omissions in par 28 cannot rise above constructive knowledge.


case_text: The plea that the first respondent breached his duty of trust and confidence is a plea of breach of fiduciary duty: Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64 ; (1984) 156 CLR 41 at 96-97. The plea in par 29 is that the second respondents knowingly participated in that breach of fiduciary duty. As I have said, the knowledge relied on is both actual and, in the alternative, constructive.


case_text: It is not suggested that the second respondents owed any fiduciary duty to the applicant. There is no suggestion, nor could there be, that there was any fiduciary relationship between the second respondents and the applicant. The second respondents are said to be liable to the applicant because they knowingly participated in the first respondent's breach of fiduciary duty. A person who knowingly participates in a breach of fiduciary duty is liable to account to the person to whom the fiduciary duty was owed where that person obtains a benefit by that participation: Consul Development Pty Ltd v DPC Estates Pty Ltd [1975] HCA 8 ; (1975) 132 CLR 373 at 397. 54 It was not put that the second respondents could not be liable without actual knowledge of the first respondent's breach of fiduciary duty. It was accepted that a plea that the second respondents knowingly participated in a breach by the first respondent of his duty of confidence with the kind of knowledge pleaded in par 28 of the PFASC could be allowed to stand. 55 In Consul Development Pty Ltd v DPC Estates Pty Ltd , Gibbs J (at 398) and Stephen J (at 412) with whom Barwick CJ agreed expressed different views as to the knowledge required to establish liability in circumstances of this kind. The English Courts have expressed different views: Royal Brunei Airlines Sdn Bhd v Tan Kok Ming [1995] UKPC 4 ; [1995] 2 AC 378; Twinsectra Ltd v Yardley [2002] UKHL 12 ; [2002] 2 AC 164. It appears that the English view has not been accepted in New South Wales and Stephen J's view has been preferred to that of Gibbs J: Yeshiva Properties No 1 Pty Ltd and Others v Marshall (2005) 219 ALR 112 per Bryson JA at [18]-[22]. Because of the uncertainty in the law in Australia on this topic, it would be difficult to conclude that a plea of the kind in par 28 was untenable: Short (as Executrix of the Estate of Short (decd)) v Crawley (No 25) [2005] NSWSC 928 per White J at [43]; The Bell Group Ltd (in liq) v Westpac Banking Corporation and Ors (No 5) [2004] WASC 273. However, because no issue was raised by the second respondents as to the kind of knowledge required, I do not need to explore this complex issue.


case_text: In Consul Development Pty Ltd v DPC Estates Pty Ltd , Gibbs J (at 398) and Stephen J (at 412) with whom Barwick CJ agreed expressed different views as to the knowledge required to establish liability in circumstances of this kind. The English Courts have expressed different views: Royal Brunei Airlines Sdn Bhd v Tan Kok Ming [1995] UKPC 4 ; [1995] 2 AC 378; Twinsectra Ltd v Yardley [2002] UKHL 12 ; [2002] 2 AC 164. It appears that the English view has not been accepted in New South Wales and Stephen J's view has been preferred to that of Gibbs J: Yeshiva Properties No 1 Pty Ltd and Others v Marshall (2005) 219 ALR 112 per Bryson JA at [18]-[22]. Because of the uncertainty in the law in Australia on this topic, it would be difficult to conclude that a plea of the kind in par 28 was untenable: Short (as Executrix of the Estate of Short (decd)) v Crawley (No 25) [2005] NSWSC 928 per White J at [43]; The Bell Group Ltd (in liq) v Westpac Banking Corporation and Ors (No 5) [2004] WASC 273. However, because no issue was raised by the second respondents as to the kind of knowledge required, I do not need to explore this complex issue.


case_title: Twinsectra Ltd v Yardley [2002] UKHL 12 ; [2002] 2 AC 164


case_title: Yeshiva Properties No 1 Pty Ltd and Others v Marshall (2005) 219 ALR 112


case_title: Short (as Executrix of the Estate of Short (decd)) v Crawley (No 25) [2005] NSWSC 928


case_title: The Bell Group Ltd (in liq) v Westpac Banking Corporation and Ors (No 5) [2004] WASC 273


case_text: Section 79 of the Act is in the same terms as s 75B of the Trade Practices Act 1974 (Cth) (the Trade Practices Act ) which was considered by the High Court in Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661. Section 75B plays a similar role in the Trade Practices Act to that played by s 79 in the Act . A person will be accessorily liable to a contravention of a provision of the Trade Practices Act if the person does any of the matters prescribed in s 75B. In Yorke v Lucas the High Court considered each of the paragraphs in s 75B. In respect to paragraph (a) the Court observed that these words have been taken from the criminal law and that to be liable under s 75B(a) a party needed to have intentionally participated in the contravention. The Court said at 668: 'The nature of the prohibition imposed by s. 52 is, however, governed by the terms in which it is created and the context in which it is found. Section 75B , on the other hand, in speaking of aiding, abetting, counselling or procuring, makes use of an existing concept drawn from the criminal law and unless the context requires otherwise, there is every reason to suppose that it was intended to carry with it the settled meaning which it already bore: cf. Barker v. The Queen [1983] HCA 18 ; (1983) 153 C.L.R. 338. Nor is there any reason to suppose that because the application of s. 75B may occur in conjunction with a provision such as s. 52 , which requires no intent, it must also be construed so as to dispense with intent as an element of aiding, abetting, counselling or procuring. In Giorgianni v. The Queen it was held that secondary participation required intent based upon knowledge, notwithstanding that the statutory provision creating the principal offence imposed strict liability.' 63 The High Court held that a person will only be guilty of the offence of aiding and abetting or counselling and procuring the commission of an offence if the person intentionally participates in it. Therefore, to form the requisite intent the person must have knowledge of the essential matters which go to make up the offence. It determined that the same knowledge should be required for a contravention of s 75B of the Trade Practices Act . 64 The majority then addressed s 75B(c) and said at 670: 'There can be no question that a person cannot be knowingly concerned in a contravention unless he has knowledge of the essential facts constituting the contravention.'


case_text: In my opinion, s 79 of the Act would be construed in the same way as s 75B of the Trade Practices Act : see Re HIH Insurance Ltd (In Liq) (2002) 41 ACSR 66. 68 It follows therefore that a party cannot be involved in a contravention of s 183(1) of the Act unless the party has actual knowledge of the elements of s 183(1). The elements that must be established for a contravention of s 183(1) are that the person referred to in s 183(1) was an officer or employee of the corporation; that he or she acquired information because he or she was an officer or employee; that the person made improper use of that information; that the person did so to gain an advantage for themselves or someone else or to cause detriment to the corporation. 69 In my opinion, the plea that the second respondents had constructive knowledge of the matters contained in par 28 or the female second respondents had constructive knowledge as pleaded in pars 29, 30, 32 and 33 could not support a claim that the second respondents contravened s 183(2) by being involved in a contravention of s 183(1). Those pleas are untenable.


case_text: In my opinion, the applicant should be required to give particulars of the facts and circumstances which existed after the first respondent was employed by the second respondents which should have put the second respondents on notice to make the inquiries or take the steps pleaded in par 28: Fox v H Wood (Harrow) Ltd [1963] 2 QB 601. 84 As I have already mentioned, in a number of the paragraphs which follow it is said that the acts, conduct and knowledge of each of the second respondents is imputed to all of them. In my opinion, that plea requires particularisation. The applicant ought to particularise the facts and circumstances which allow it to be said that, as a consequence, the acts, conduct and knowledge of each of the second respondents is imputed to all of them. 85 Lastly, as the applicant conceded, the applicant needs to give particulars of the loss or damage which the applicants says that he suffered by reason of the respondents' breaches.


case_title: Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [2005] 225 ALR 266 at [30]

case_text: The relevant legal principles on legal professional privilege have recently been the subject of a comprehensive summary by Kenny J in Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd (2005) 225 ALR 266 at [30]. There is no dispute as to the correctness of this statement and I incorporate it by reference in these reasons. 5 The sixth respondent Mr Rod Carroll is separately represented and did not participate in these interlocutory applications. The term respondent in these reasons does not include him. 6 The documents in question total 216 and can be summarised as follows. The officers referred to are the ACCC's General Counsel Mr Robert Alexander, Mr Geoffrey Williams, a Director of its Enforcement Division, and Ms Susan Pryde of the Australian Government Solicitor's office. Category of documents Number of documents Date range Basis of privilege claimed A 4 17 Jun 2005 21 Oct 2005 Confidential communications to Mr Alexander from legal representatives of proposed witnesses. The dominant purpose of Mr Alexander's communication with those persons was to obtain information for use in, or in relation to, the proceeding and to use that information to obtain legal advice in relation to the proceeding. B 4 15 Mar 2005 16 Mar 2005 Documents created by Mr Alexander for the dominant purpose of being used in, or in relation to, the proceeding and to obtain legal advice in relation to the proceeding. The documents consist of: 1. notes made by Mr Alexander as to evidentiary matters to be discussed with witnesses (nos 36 and 37); 2. note of a confidential communication between Mr Alexander and solicitors for a witness (no 38); 3. Mr Alexander's note of a confidential communication between himself and a witness (no 41). C 2 17 Jun 2005 24 Jun 2005 Documents containing information in respect of proposed witnesses collated at Mr Alexander's request by the solicitor for the employer of the proposed witnesses and provided to Mr Alexander. His dominant purpose in requesting the information in respect of the proposed witnesses was to obtain information for use in, or in relation to, the proceeding and to use that information to obtain legal advice in relation to the proceeding. D No longer in dispute - E 77 1 Jan 2005 16 Dec 2005 1. Documents recording confidential communications between, on the one hand, Mr Williams and other officers of the ACCC or AGS and, on the other hand, a proposed witness or a representative of a proposed witness. 2. In some cases, the documents also record internal communications of officers of the ACCC related to the communications referred to in 1. 3. In each instance, the communications recorded in the documents were made by Mr Williams or at his request. The dominant purpose of Mr Williams in making those communications, or requesting those communications to be made, was to obtain information for use in, or in relation to the proceeding and to use that information to obtain legal advice in relation to the proceeding. F 4 1 Jul 2005 1 Nov 2005 Internal ACCC working documents prepared by officers of the ACCC at Mr Williams' direction. His dominant purpose in directing that those documents be created was to record information for use in, or in relation to, the proceeding and to obtain legal advice in relation to the proceeding. G 95 22 Dec 2004 27 Nov 2005 Witness statements or draft witness statements prepared by Mr Williams, other officers of the ACCC at his direction, and officers of the AGS or counsel at Mr Williams' request. In some cases the draft witness statements contain suggested amendments made by Mr Williams, other officers of the ACCC or AGS, or counsel. Mr Williams' dominant purpose in preparing or requesting those documents was to use them in, or in relation to, the proceeding and to obtain legal advice in relation to the proceeding. In some cases Mr Alexander was the officer who amended the draft witness statements and he did so with the same dominant purpose. H 11 17 Dec 2004 6 May 2005 Records of interviews of potential witnesses conducted by Mr Alexander and Mr Williams. Their dominant purpose in conducting the interviews was to obtain information for use in, or in relation to, the proceeding and to use that information to obtain legal advice in relation to the proceeding. The interviews were not conducted under the powers conferred by s 155 of the Act. I 19 11 Oct 2005 25 Nov 2005 Witness statements or draft witness statements prepared by Ms Pryde or other officers of AGS at the direction of Mr Williams or Ms Pryde. In some cases the draft witness statements contain suggested amendments made by Ms Pryde, Mr Williams or other officers. Ms Pryde's dominant purpose in preparing or requesting those witness statements was to use the documents in, or in relation to, the proceeding and to obtain legal advice in relation to the proceeding. In some cases Mr Alexander was the officer who amended the witness statements and he did so with the same dominant purpose.