case_text: 80 [147]-[148] their Honours said: '[147] The relevant choices [as to the relevant law dealing with the assignment of property in a ship] appear to be the law of the forum, the law of the country of registry as the lex situs (and not merely when the ship is on the high seas), the law of the place of the ship if in another country's territorial waters, and (on one reading of The "Nazym Khikmet" and Vostok Shipping ) the law of the domicile of the registered owner or operator. [148] Given that no evidence of foreign law was adduced in the present case, the question of choice between those sources of law is academic. In the absence of detailed argument on the question, we do not propose to express any concluded views. ...' Then at 80-81 [150] they said: '[150] Since no foreign law has been proved, the issue of the operation of the so-called presumption that foreign law is the same as the law of the forum arises. ... It may be doubted whether an Australian statute in terms directed only to Australian-owned ships is properly the subject of the presumption in these circumstances. In Damberg v Damberg (2001) 52 NSWLR 492; [2001] NSWCA 87 at [118] - [147] Heydon JA (as his Honour then was) examined the authorities on the so-called presumption. That analysis reveals the difficulties of, and disparities in approach to, its application. Some authorities limit the presumption to non-statutory law. Some extend the presumption to statutes. Some, while accepting the presumption as extending to statute law, require that the statute law not be peculiar to local situations or linked to local conditions or to establishing regulatory requirements. Thus, to the extent that statute law can be seen as part of the "general law" of the law of the forum, it will form part of the presumption. See, in particular, the different approaches in Purdom v Pavey & Co (1896) 26 SCR 412; Hellens v Densmore [1957] SCR 768 at 780; Gray v Kerslake [1958] SCR 3; The Ship "Mercury Bell" v Amosin (1986) 27 DLR (4th) 641 and Schnaider v Jaffe [1916] CPD 696, all referred to by Heydon JA in Damberg v Damberg.' Damberg v Damberg [2001] NSWCA 87 ; (2001) 52 NSWLR 492 was a case in which a material consideration was whether in relation to the avoidance or evasion of capital gains tax, German law should be presumed to be the same as Australian law. The leading judgment in the case was that of Heydon JA, as his Honour then was, with which Spigelman CJ and Sheller JA agreed. At 504 505 [112]-[119] his Honour said: '[112] It may be assumed that German tax law in relation to capital gains rests on a statute. The trial judge was not taken to the terms of any relevant German statute. Nor was this Court. All the trial judge was invited to do was assume that German law was identical to Australian law. He was not taken to any statutory provision in Australian law. This Court was not taken to the detail of the relevant Commonwealth legislation. This Court, too, was asked to assume that German and Australian law were the same. ... [113] The content of German law is vital from several points of view. ... [118] A common assumption of the parties was that if German law was not proved as a fact, the court had no alternative but to apply Australian law. Is that assumption sound? [119] The proposition that where foreign law is not proved it will be presumed to be the same as the lex fori is amply supported: ... .' Heydon JA proceeded to cite a number of authorities in support of the presumption and then embarked upon a detailed consideration of Australian, English, Canadian and South African authorities and a number of academic treatises in relation to the presumption. His Honour concluded that it should not be assumed that German law in relation to the avoidance or evasion of capital gains tax was the same as Australian law. His Honour said at 522 [162]: '[162] To state exhaustively when a court will not assume that the unproved provisions of foreign law are identical with those of the lex fori would be a difficult task. It is not necessary to perform it in this case. The issue in this case is whether it should be assumed that German law in relation to the avoidance or evasion of capital gains tax is the same as Australian law. In my opinion it should not. ... German law on the point must be statutory. German law is not a common law-based system. ... There is a risk that there may be special machinery and highly individual provisions in German law as there are in Australian tax law: indeed the only evidence of German law, from Mr Stiegler, suggests that it is quite different from Australian law. Taxation law cannot be assumed to be a field resting on great and broad principles likely to be part of any given legal system.' Whilst the present matter masquerades as one brought under the Trade Practices Act , and the Fair Trading Act , thereby attracting federal jurisdiction, it has been conducted and argued, to all intents and purposes, as a defamation case. However, notwithstanding the emphasis given by the applicants to the matter as a defamation action, it is important to note that the first applicant still maintains its entitlement to injunctive relief under s 80 of the Trade Practices Act and the corresponding s 65 of the Fair Trading Act , restraining the respondents from engaging in 'the misleading and deceptive conduct pleaded in the Second (sic) Further Amended Statement of Claim'. Section 80 of the Trade Practices Act relevantly provided: '80(1) Subject to subsections (1A), (1AAA) and (1B), where, on the application of ... any other person, the Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute: (a) a contravention of any of the following provisions: (i) a provision of Part ... V ...; ... (b) attempting to contravene such a provision; (c) aiding, abetting, counselling or procuring a person to contravene such a provision; ... (e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; ... ... the Court may grant an injunction in such terms as the Court determines to be appropriate. ...' In their 'Defence to Third Further Amended Statement of Claim' the respondents have raised a number of defamation issues not covered by matters of non-admission and denial. These include: (a) If it be found that the matters complained of were defamatory of the applicants as alleged and conveyed any of the imputations alleged, such imputations were: 'substantially true and: i. related to a matter of public interest; or ii. was published under qualified privilege', in respect of publication in New South Wales. (b) In relation to publication of matters complained of in States and Territories of Australia other than New South Wales: 'i. the matters complained of were true in substance and in fact; and ii. further, in respect of the publication of the matters complained of in Queensland, Tasmania and the Australian Capital Territory, such publication was made for the public benefit.' (c) If it be found that the matters complained of were defamatory of the applicants and bore any of the imputations alleged, the matters complained of were: 'published on an occasion of qualified privilege:- i. at common law; ii. pursuant to section 22 of the Defamation Act 1974 (NSW).' (d) For a case in mitigation of damages in relation to the publication of the matters complained of the respondents relied upon: 'i. the bad reputation of the Applicants; ii. the truth of the Applicants' imputations; iii. the truth of the allegations contained in the First, Second and Third matters complained of.' (e) In relation to the publication of the 13 September facsimile in New South Wales, the publication of the ATO letter in New South Wales and the publication of the 15 September email in New South Wales (which did not in fact occur), the respondents, referred to as 'the defendant', have relied upon a number of contextual imputations of and concerning the applicants which they contend were published contextually to each of the applicants' imputations, each of which related to matters of public interest, were matters of substantial truth and related to matters of public interest. The respondents further contend that by reason of the substantial truth of any one or more of the relevant contextual imputations each of the imputations relied upon by the applicants did not further injure the reputation of the applicants. (f) In relation to the publication of the 13 September facsimile, the ATO letter and the 15 September email outside New South Wales, the respondents contended that the publications conveyed certain imputations of and concerning the applicants which were true in substance and in fact and the publication of which was for the public benefit and, by virtue of the substantial truth of them or some of them, the applicants' reputation was not further injured by the imputations for which the applicants contended. Detailed particulars were provided in respect of the matters pleaded in the Defence to Third Further Amended Statement of Claim, occupying about 10 pages of typed script. In their Reply to Defence to Third Further Amended Statement of Clam (sic), the applicants alleged that the respondents were 'actuated by express malice in the publication of the matters complained of in that they were motivated by an ulterior purpose or foreign motive'. Detailed particulars were provided. Having outlined the nature of the proceedings, it is appropriate to now paint the surrounding picture in a little more detail. The first applicant, National Auto Glass Supplies (Australia) Pty Limited ACN 081 814 342, ABN 33 081 814 342, was registered on 2 March 1998. Its directors were Yeung Lo, who is also known as 'Maggie' (the second applicant), Hui Ouyang, who is also known as 'Harvey' (the third applicant), Carl Christian Moller (the third respondent) and Tian He. According to the second applicant, the directors at the time were also the shareholders.


case_outcome: referred to

case_title: Browne v Dunn (1893) 6 R 67

case_text: am not satisfied that more was said on 22 August 2006 than the third respondent conceded. It is true that the third respondent did not challenge Mr Yip's account in cross-examination, but the niceties of Browne v Dunn (1893) 6 R 67 may not have been known to him as a litigant in person. That which was said could not, as I see it, be described as a 'violent verbal assault made by the Third Respondent on the Applicants' lawyers'. Insofar as the applicants rely upon the so-called 'malice' of the second respondent 'infecting the First respondent by reason of' his being a guiding mind of the first respondent, I am unable to so conclude. The second respondent was not a guiding mind of the first respondent. He was not a director of the first respondent, nor was he a shadow director or even a shareholder. Notwithstanding that the first applicant only entered the market for automotive replacement glass in 1998, it is clear that it rapidly progressed to become one of the major players in the market. Its ability to reach this status was undoubtedly assisted by the dishonesty of the second and third applicants, acting with the cooperation of FYG, in respect of which they were charged and convicted. As Goldring DCJ said: '... the total amount of $263,692.16 which should have been paid [by way of customs duty and goods and services tax on imported automotive glass] was not paid [but was paid promptly after they were found out] ... The offences ... clearly resulted from a well thought out plan which required careful execution and the co-operation of the third party, FYG in China. ... ... the automotive glass industry in Australia is competitive ... ... I am satisfied that the motive for the fraud was commercial ... ... Customs fraud ... is more serious [than social security fraud] because those who commit it are usually motivated solely by commercial greed ...'


case_text: the second respondent was excused from giving further evidence on 13 April 2007 (see National Auto Glass Supplies (Australia) Pty Limited v Nielsen & Moller Autoglass (NSW) Pty Limited (No 5) [2007] FCA 569) an order was made, on the applicants' application, that no further use may be made of any part of the affidavit or oral evidence of the second respondent (see National Auto Glass Supplies (Australia) Pty Limited v Nielsen & Moller Autoglass (NSW) Pty Limited (No 7) [2007] FCA 582).


case_title: National Auto Glass Supplies (Australia) Pty Limited v Nielsen & Moller Autoglass (NSW) Pty Limited (No 7) [2007] FCA 582


case_text: s 52 of the Trade Practices Act to be enlivened it is sufficient that the conduct complained of, in all the circumstances, answers the statutory description, that is to say, that it is misleading or deceptive or is likely to mislead or deceive. It is unnecessary to go further and establish that any actual or potential consumer has taken or is likely to take any positive step in consequence of being misled or deceived. That is not to say that evidence of actual misleading or deception and of steps taken in consequence thereof is not likely to be both relevant and important on the question of whether the relevant conduct in fact answers the statutory description and as to the relief, if any, which should be granted (per Deane and Fitzgerald JJ in Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 ('Taco Bell') at 199). In Taco Bell at 200, Deane and Fitzgerald JJ emphasised that 'no conduct can mislead or deceive unless the representee labours under some erroneous assumption' (cited with approval in Campomar at [104]). Conduct which produces or contributes to confusion or uncertainty may or may not be misleading or deceptive for the purposes of s 52. Ordinarily, a tendency to cause confusion or uncertainty will not suffice to establish conduct of the type described in s 52. The question whether particular conduct causes confusion or wonderment cannot be substituted for the question whether the conduct answers the statutory description contained in s 52 (per Deane and Fitzgerald JJ in Taco Bell at 201; see also Campomar at [106]). As to whether conduct may be categorised as misleading or deceptive Deane and Fitzgerald JJ said in Taco Bell at 202: 'Irrespective of whether conduct produces or is likely to produce confusion or misconception, it cannot, for the purposes of s 52 , be categorized as misleading or deceptive unless it contains or conveys, in all the circumstances of the case, a misrepresentation. The difficulty which will commonly arise in a s 52 case is in determining whether the conduct contains or conveys, in all the circumstances, a misrepresentation and in assessing the significance to that question of evidence that one or more persons were in fact led into error. In extreme, but not necessarily infrequent, cases, it may be correct to hold that, as a matter of law, conduct said to contravene s 52 is incapable of conveying the untrue meaning alleged or any other false meaning. Such cases aside, whether or not conduct amounts to a misrepresentation is a question of fact to be decided by considering what is said and done against the background of all surrounding circumstances. In some cases, such as an express untrue representation made only to identified individuals, the process of deciding that question of fact may be direct and uncomplicated. ...' (see also Campomar at [100] and Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60 ; (2004) 218 CLR 592 at [36] - [37] ).


case_text: order to determine whether there has been any contravention of s 52(1) of the Trade Practices Act it is necessary to determine whether or not the conduct complained of amounted to a representation which has led or would be likely to lead to a misconception arising in the minds of that section of the public to whom the conduct (which may include refraining from doing an act) has been directed. Where the persons to whom the conduct has been directed are members of a class, it is necessary to isolate by some criterion a representative member of that class to determine whether a misconception is likely to arise from the conduct alleged (see the judgment of the Full Court of the High Court in Campomar Sociedad, Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45 ('Campomar') at [98]-[103]). In Taco Bell at 200, Deane and Fitzgerald JJ emphasised that 'no conduct can mislead or deceive unless the representee labours under some erroneous assumption' (cited with approval in Campomar at [104]). The task of the Court is to determine whether any misconceptions or deceptions alleged to arise or to be likely to arise from the conduct complained of are properly to be attributed to the ordinary or reasonable members of the section of the community towards whom the conduct has been directed. The Court may disregard assumptions drawn by persons to whom the conduct is directed, where those assumptions or their reactions are extreme or fanciful (see Campomar at [104]-[105]). Conduct which produces or contributes to confusion or uncertainty may or may not be misleading or deceptive for the purposes of s 52. Ordinarily, a tendency to cause confusion or uncertainty will not suffice to establish conduct of the type described in s 52. The question whether particular conduct causes confusion or wonderment cannot be substituted for the question whether the conduct answers the statutory description contained in s 52 (per Deane and Fitzgerald JJ in Taco Bell at 201; see also Campomar at [106]). As to whether conduct may be categorised as misleading or deceptive Deane and Fitzgerald JJ said in Taco Bell at 202: 'Irrespective of whether conduct produces or is likely to produce confusion or misconception, it cannot, for the purposes of s 52 , be categorized as misleading or deceptive unless it contains or conveys, in all the circumstances of the case, a misrepresentation. The difficulty which will commonly arise in a s 52 case is in determining whether the conduct contains or conveys, in all the circumstances, a misrepresentation and in assessing the significance to that question of evidence that one or more persons were in fact led into error. In extreme, but not necessarily infrequent, cases, it may be correct to hold that, as a matter of law, conduct said to contravene s 52 is incapable of conveying the untrue meaning alleged or any other false meaning. Such cases aside, whether or not conduct amounts to a misrepresentation is a question of fact to be decided by considering what is said and done against the background of all surrounding circumstances. In some cases, such as an express untrue representation made only to identified individuals, the process of deciding that question of fact may be direct and uncomplicated. ...' (see also Campomar at [100] and Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60 ; (2004) 218 CLR 592 at [36] - [37] ).


case_text: Astrazeneca Pty Limited v GlaxoSmithKline Australia Pty Limited (2006) ATPR 42-106 a Full Court formulated the above propositions as appropriate matters for consideration where there had been an alleged contravention of the Trade Practices Act by a drug company in the sending of certain flyers to members of the medical profession and the publication of certain advertisements in 'Australian Doctor' magazine concerning an asthma drug. The Court observed at [52] that the lack of evidence called by the applicant in that case to the effect that general practitioners relied upon the representations complained of in prescribing medication for use by their patients was not determinative of a case for an alleged contravention of s 52. The section does not require demonstration that anyone has actually been misled.


case_text: to whether conduct may be categorised as misleading or deceptive Deane and Fitzgerald JJ said in Taco Bell at 202: 'Irrespective of whether conduct produces or is likely to produce confusion or misconception, it cannot, for the purposes of s 52 , be categorized as misleading or deceptive unless it contains or conveys, in all the circumstances of the case, a misrepresentation. The difficulty which will commonly arise in a s 52 case is in determining whether the conduct contains or conveys, in all the circumstances, a misrepresentation and in assessing the significance to that question of evidence that one or more persons were in fact led into error. In extreme, but not necessarily infrequent, cases, it may be correct to hold that, as a matter of law, conduct said to contravene s 52 is incapable of conveying the untrue meaning alleged or any other false meaning. Such cases aside, whether or not conduct amounts to a misrepresentation is a question of fact to be decided by considering what is said and done against the background of all surrounding circumstances. In some cases, such as an express untrue representation made only to identified individuals, the process of deciding that question of fact may be direct and uncomplicated. ...' (see also Campomar at [100] and Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60 ; (2004) 218 CLR 592 at [36] - [37] ).


case_text: relation to the letter apparently sent by the third respondent as the Managing Director of the first respondent to: 'The Director ACCC Sydney' on 15 March 2006 [see paragraph 1(g)(v) of the Third Further Amended Application] it may be observed that within its five pages it included the following on pages 4 and 5 thereof: (page 4) '... The home detention sentence did not stop MAGGIE from attending her office and continuing her business activities even though she was a convicted criminal and a disqualified Company Director. She has now resorted to issuing a Summons for Defamation on Fatuous Grounds through her Solicitors Robert Yip&Co on myself and my father. Her oleaginous approach to business and propensity to approach her solicitors in order to extract herself from her illegalities has certainly cost her a large amount of money ...' (page 5) '... The present Predatory Pricing Tactics of NAGS and MAGGIE and CHO has had such a SERIOUS EFFECT ON THE AUSTRALIAN MARKET THAT ITS COMPETITORS ARE NOW FACED WITH CRITICAL FINANCIAL DIFFICULTIES AND UNLESS IMMEDIATE ACTION IS TAKEN THE AUSTRALIAN ARG MARKET WILL BE TAKEN OVER BY A CORRUPT CHINESE CEO AND HIS ACCOMPLICE. ...' I would understand the reference to an 'oleaginous approach to business' to be to a well-oiled approach. The letter dated 15 March 2006 concluded with an observation that it had been prepared at the third respondent's request by the second respondent. Notwithstanding his education at Sydney Grammar School, I very much doubt that the word 'oleaginous' was one which formed part of the third respondent's vocabulary. He did not present as a linguistic scholar of any note. In relation to the applicants' reliance upon the so-called 'contemptuous conduct' of the second respondent by reason of his letter dated 9 January 2006 (referred to in paragraph 1(h) of the Third Further Amended Application see [31] above) to Robert Yip & Co, the solicitors for the applicants, I have difficulty in so categorising the second respondent's conduct in sending it. The applicants submit that in the 13 September facsimile it was represented that the first applicant conducted its business unfairly, in that it sold products at unrealistic prices that were below cost in order to gain market control. True it is that the 13 September facsimile bears the heading 'NAGS/FYG Background in Australia Since 1998'. However, observations about how the first applicant conducted its business are relatively confined. In the text of the cover sheet to the 13 September facsimile, the third respondent wrote: 'The wholesale supply industry has become unsustainable, due to unrealistic low supply prices that are by far the lowest in the world. With Australia now selling below costs for last 6 maths (sic) all suppliers' I would observe that this statement about 'selling below cost' appears to be related to all wholesale suppliers and not simply the first applicant. In the attachment to the facsimile coversheet, addressed to the Australian Tax Office, the following appears: 'I [referring to the second respondent] ... would point out that NAGS at the moment has embarked on predatory pricing policy to control the Australian replacement market by selling product below cost.' I would understand the reference to 'predatory pricing policy' to be a reference to a policy under which uneconomically low prices were set. However, the objective of price-cutting will ordinarily be to take business away from competitors. If the objective is achieved, competitors will necessarily be damaged. If it is achieved to a sufficient extent, one or more of them may be eliminated. That is inherent in the competitive process. Successful competition is bound to cause damage to some competitors. It is dangerous to proceed too quickly from a finding about purpose to a conclusion about taking advantage of market power, which may be wrongful and constitute conducting a business unfairly (see per Gleeson CJ and Callinan J in Boral Besser Masonry Limited v Australian Competition and Consumer Commission [2003] HCA 5 ; (2003) 215 CLR 374 ('Besser') at 420 [122]-[123]). In discerning whether the representation alleged by the applicants was made in the 13 September facsimile it is relevant to have regard to the fact that the statement concerning a predatory pricing policy was made in the context of an assertion that there were four major wholesalers of autoglass in Australia, one only of whom was the first applicant, yet all of whom had been 'selling below costs'. For a finding to be made that the 13 September facsimile contained a representation that the first applicant conducted its business 'unfairly' one would need to find material suggesting that the unfairness lay in the first applicant taking advantage of a substantial degree of power in the relevant market for the purpose of eliminating or substantially damaging its competitors. The three purposes to be served by an award of damages for defamation were identified in the joint reasons of Mason CJ, Deane, Dawson and Gaudron JJ in Carson v John Fairfax & Sons Limited [1993] HCA 31 ; (1993) 178 CLR 44 ('Carson') at 60: (i) consolation for the personal distress and hurt caused to the relevant applicant by the publication; (ii) reparation for harm done to the relevant applicant's personal and, where appropriate, professional, reputation; and (iii) vindication of the relevant applicant's reputation. As pointed out in Carson the first two purposes are frequently considered together and constitute consolation for the wrong done to the relevant applicant. Vindication looks to the relevant attitude of others (per Hayne J in Rogers v Nationwide News Pty Limited [2003] HCA 52 ; (2003) 216 CLR 327 ('Rogers') at [60]; see also at [35]).


case_outcome: applied

case_text: common law protects a defamatory statement made on an occasion where one person has a duty or interest to make the statement and the recipient of the statement has a corresponding duty or interest to receive it. Communications made on such occasions are privileged because their making promotes the welfare of society. But the privilege is qualified hence the name qualified privilege by the condition that the occasion must not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement (per Gaudron, McHugh and Gummow JJ in Roberts v Bass [2002] HCA 57 ; (2002) 212 CLR 1 at [62] and [75]). A purpose or motive that is foreign to the occasion and actuates the making of the statement is called express malice. The term 'express malice' is used in contrast to presumed or implied malice that at common law arises on proof of a false and defamatory statement. Proof of express malice destroys qualified privilege. Accordingly, for the purposes of that privilege, express malice is any improper motive or purpose that induces the defendant to use the occasion of qualified privilege to defame the plaintiff (per Gaudron, McHugh and Gummow JJ in Roberts v Bass at [75]). In Roberts v Bass at [10] Gleeson CJ illustrated what was meant by express malice as follows: '... if the privileged occasion is the making by A of a report to B about the character or conduct of C, in pursuance of a duty or interest, then if the dominant motive for the making of a defamatory statement in the report is a desire to injure C, that defeats the privilege. The occasion has been misused. In that context, an honest expression of opinion about C's character or conduct is the obverse of a statement made with the dominant motive of injuring C.' Malice means a motive for, or a purpose of, defaming the plaintiff that is inconsistent with the duty or interest that protects the occasion of the publication. It is the motive or purpose for which the occasion is used that is ultimately decisive, not the defendant's belief in the truth of the matter (per Gaudron, McHugh and Gummow JJ at [79]). Improper motive in making the defamatory publication must not be confused with a defendant's ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive. But, leaving aside the special case of knowledge of falsity, mere proof of the defendant's ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice. The evidence or the publication must also show some ground for concluding that the ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication (per Gaudron, McHugh and Gummow JJ in Roberts v Bass at [76]; see also per Kirby J at [185]). A defamatory imputation is presumed to be false and it is for a respondent to show that it is substantially true.


case_title: Adam v Ward [1917] AC 309 at 334

case_text: privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential (per Lord Atkinson in Adam v Ward [1917] AC 309 at 334; see also Lange v Australian Broadcasting Corporation [1997] HCA 25 ; (1997) 189 CLR 520 ('Lange') at 570).


case_text: privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential (per Lord Atkinson in Adam v Ward [1917] AC 309 at 334; see also Lange v Australian Broadcasting Corporation [1997] HCA 25 ; (1997) 189 CLR 520 ('Lange') at 570). The purpose of the law of defamation is to strike a balance between the right to reputation and freedom of speech (see Lange at [568]). Apart from a few exceptional cases, the common law categories of qualified privilege protect only occasions where defamatory matter is published to a limited number of recipients. If a publication is made to a large audience, a claim of qualified privilege at common law is rejected unless, exceptionally, the members of the audience all have an interest in knowing the truth. Publication beyond what was reasonably sufficient for the occasion of qualified privilege is unprotected. Because privileged occasions are ordinarily occasions of limited publication more often than not occasions of publication to a single person the common law has seen honesty of purpose in the publisher as the appropriate protection for individual reputation. As long as the publisher honestly and without malice uses the occasion for the purpose for which it is given, that person escapes liability even though the publication is false and defamatory. But a test devised for situations where usually only one person receives the publication is unlikely to be appropriate when the publication is to tens of thousands, or more, of readers, listeners or viewers (see Lange at [572]). In Lange at 573 Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ said of s 22 at 573: 'Reasonableness of conduct is the basic criterion in s 22 of the Defamation Act which gives a statutory defence of qualified privilege.' In my opinion, the communication of the ATO letter was protected by qualified privilege. In relation to the publication of the 13 September facsimile and the ATO letter in New South Wales it is appropriate to have regard to s 16 of the Defamation Act 1974 (NSW), which relevantly provided: '16(1) Where an imputation complained of is made by the publication of any ... letter, note, ... or other thing and another imputation is made by the same publication, the latter imputation is, for the purposes of this section, contextual to the imputation complained of. (2) It is a defence to any imputation complained of that: (a) the imputation relates to a matter of public interest ... (b) one or more imputations contextual to the imputation complained of: (i) relate to a matter of public interest ..., and (ii) are matters of substantial truth, and (iii) by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff.'


case_title: Belt v Lawes (1882) 51 LJQB 359

case_text: Belt v Lawes (1882) 51 LJQB 359 at 361 Field J said: '... a libel prima facie imports a wrong, which it could not do if the alleged libellous matter were true, and therefore the onus of proving the truth thereof is cast on the defendant. ...' Later at 361 Huddleston, B said: 'The allegation is that the defendant published "falsely and maliciously". The defendant in his statement of defence traverses the falsehood of the statement alleged to have been made by him, and thereby takes the onus of justifying, but this he would have without such traverse.' In considering the truth defences which have been raised it is convenient to address the defamatory imputations referred to at [203], [211], [214], [222], [242] and [248] above together and to also consider the defamatory imputations referred to at [225], [231] and [235] together. It will be recalled that the defamatory imputations referred to at [203], [211] and [242] were conveyed by the publication of the 13 September facsimile and the defamatory imputations referred to at [214], [222] and [248] were conveyed by the publication of the ATO letter. Each of the defamatory imputations referred to at [225], [231] and [235] were conveyed by the publication of the 15 September email. In my opinion, the respondents have failed to establish that the imputations to the effect that the second applicant used the first applicant to launder money to China for her own personal gain and that the second and third applicants defrauded the Australian Taxation Office were matters of substantial truth within the meaning of s 15(2) of the Defamation Act 1974 (NSW). Similarly, in respect of the publication of the 13 September facsimile in Queensland, Victoria, South Australia, Western Australia, Tasmania and the Australian Capital Territory, the respondents have failed to establish that these imputations were true in substance and in fact.


case_text: seems to me that the communication by the second respondent of the ATO letter to the Australian Taxation Office at the request of the third respondent was protected by qualified privilege. Just as a communication to the Australian Securities and Investments Commission about maladministration, incompetence or possible dishonesty within a company would be protected by qualified privilege (see per Lawton LJ in Bryanston Finance Ltd v de Vries [1975] 1 QB 703 at 736) so also, in my opinion, would a communication such as the ATO letter be protected by qualified privilege, subject to the possible loss of such privilege due to malice on the part of the second or third respondents that may be proved by the applicants. It is apparent from the terms of the ATO letter itself that the second respondent was not well disposed towards the second and third applicants. One might say that he was personally aggrieved by their conduct in relation to the affairs of the first applicant. However, I do not consider that the communication by the second applicant of the ATO letter was other than for the common convenience and welfare of society. It was not actuated by a desire to injure the second and third applicants. The occasion for the qualified privilege had not been misused by the second respondent. I do not consider that the second respondent was actuated by malice in sending the ATO letter to the Australian Taxation Office. In my opinion the second respondent's conduct in publishing the ATO letter was reasonable in the circumstances within the meaning of s 22(1)(c) of the Defamation Act 1974 (NSW).


case_text: Bellino v Australian Broadcasting Corporation [1995] HCA 34 ; (1996) 185 CLR 183 at 221, Dawson, McHugh and Gummow JJ considered that the discussion of the conduct of any person holding public office, participating in the administration of justice or public affairs, offering goods or services to the public or otherwise engaging in public conduct that invites public criticism or discussion came within the term 'subject of public interest' within the meaning of the Criminal Code Act 1899 (Qld). I do not consider that imputations contextual to the imputations complained of which related to persons associated with the first applicant as a supplier of automotive glass products to the public, related to a matter of public interest. Furthermore, even though the contextual imputations relied upon, or some of them, may have been matters of substantial truth, I consider that the imputations complained of would further injure the reputations of the second and third applicants in the estimation of right-thinking members of society generally. In my opinion the contextual imputation defences under s 16 of the Defamation Act 1974 (NSW) fail.


case_text: turn now to the defences raised in paragraphs 27 29 of the Defence to Third Further Amended Statement of Claim which rely upon the decision of the Court of Appeal in England in Polly Peck (Holdings) Plc v Trelford (1986) 1 QB 1000 ('Polly Peck'). Polly Peck defences are not available in New South Wales, Queensland and Tasmania. They are available in respect of publications in Victoria, South Australia, Western Australia and the Australian Capital Territory. In his leading judgment in Polly Peck O'Connor LJ stated a series of relevant principles at 1020 et seq as follows: 'The first principle is that where a plaintiff chooses to complain of part of a whole publication, the jury is entitled to see and read the whole publication ... ... The second principle is that where a publication contains two distinct libels, the plaintiff can complain of one and the defendant cannot justify that libel by proving the truth of the other. The difficulty with this apparently self-evident proposition is in deciding whether the two libels are indeed distinct in the sense that the imputation defamatory of the plaintiff's character in the one is different from the other. The third principle is that it is for the jury to decide what the natural and ordinary meaning of the words complained of is. ... The fourth principle is that the trial of the action should concern itself with the essential issues and the evidence relevant thereto and that public policy and the interest of the parties require that the trial should be kept strictly to the issues necessary for a fair determination of the dispute between the parties. In this case both the newspaper articles in which the passages of which complaint is made appear consist of a mixture of fact and comment, which is only to be expected. There are two different articles, so that strictly there are two separate causes of action, but when I look at the statement of claim it is quite obvious that the imputation of which Mr Nadir complains is the same, for in paragraphs 8 and 10 of the statement of claim, ... it will be seen that the sting of the libel is that he deceived or negligently mislead shareholders, investors and members of the general public as to the operation of his business enterprises. If the action succeeds, the jury will be asked to assess a single sum by way of damages. It is the "sting" of the libel to which the defences of justification and fair comment are directed. ... ... ... In cases where the plaintiff relies on the natural and ordinary meaning of words and pleads a false innuendo, the defendant is entitled to justify the words in any meaning that it is open to the jury to find that the words bear, and I do not see why the defendant should not plead that in their context the words are true. ... I do not think that a plaintiff is permitted to use a blue pencil upon words published of him so as to change their meaning and then prevent the defendant from justifying the words in their unexpurgated form. ... ... I am now in a position to state my conclusions. In cases where the plaintiff selects words from a publication, pleads that in their natural and ordinary meaning the words are defamatory of him, and pleads the meanings which he asserts they bear by way of false innuendo, the defendant is entitled to look at the whole publication in order to aver that in their context the words bear a meaning different from that alleged by the plaintiff. The defendant is entitled to plead that in that meaning the words are true ... Where a publication contains two or more separate and distinct defamatory statements, the plaintiff is entitled to select one for complaint, and the defendant is not entitled to assert the truth of the others by way of justification. Whether a defamatory statement is separate and distinct from other defamatory statements contained in the publication is a question of fact and degree in each case. The several defamatory allegations in their context may have a common sting, in which event they are not to be regarded as separate and distinct allegations. The defendant is entitled to justify the sting, and once again it is fortuitous that what is in fact similar fact evidence is found in the publication. ...' In the present case the respondents have not endeavoured to look at the whole of the 13 September facsimile, the whole of the ATO letter and/or the whole of the 15 September email and aver that in their context the words used bear meanings different from those alleged by the applicants as constituting defamatory imputations. It seems to me that on the facts of this case there is no scope for the operation of the Polly Peck defence in those jurisdictions where it is available. I should add that I am by no means satisfied that paragraphs 27 29 inclusive of the Defence to Third Further Amended Statement of Claim in fact raise Polly Peck defences. Certainly the facts do not fall within the Polly Peck principles. It is convenient to summarise the findings which I have made thus far: (a) The first applicant's claims for relief under the Trade Practices Act and/or the Fair Trading Act should be dismissed with costs (see [191] above). In the applicants' outline of their final submissions of 19 April 2007 it was submitted that an injunction should go restraining the respondents, their servants and agents from publishing any matter of and concerning any of the applicants that contained any of the representations pleaded by the first applicant in support of its case for relief under the Trade Practices Act and/or the Fair Trading Act . Were it appropriate to grant relief under one or other of those Acts, and in my opinion it would not be appropriate, I would not consider that the circumstances warrant injunctive relief such as has been proposed. (b) The first applicant is not entitled to damages for defamation (see [199] above). (c) By publishing the 13 September facsimile the first and third respondents conveyed a defamatory imputation of and concerning the second applicant that she used the first applicant to launder money to China for her own personal gain (see [206]-[207] above). (d) By publishing the 13 September facsimile the first and third respondents conveyed a defamatory imputation of and concerning the second applicant that she was a person convicted of two offences of providing false customs invoices who defrauded the Australian Taxation Office (see [212]-[213] above). (e) By publishing the 13 September facsimile the first and third respondents conveyed a defamatory imputation of and concerning the third applicant that he was a person convicted of two offences of providing false customs invoices who defrauded the Australian Taxation Office (see [243]-[244] above). (f) The second and third applicants are entitled to damages in respect of the publication of the 13 September facsimile in New South Wales, Queensland, Victoria, South Australia, Western Australia, Tasmania and the Australian Capital Territory (see [19]-[22] above). (g) By publishing the ATO letter, at the request of the third respondent, the second respondent conveyed a defamatory imputation of and concerning the second applicant in the same terms as the imputation conveyed by the 13 September facsimile and referred to at [206]-[207] above (see [217]-[218] above). By publishing the ATO letter, at the request of the third respondent, the second respondent conveyed defamatory imputations of and concerning the second and third applicants in the same terms as the imputations conveyed by the 13 September facsimile and referred to at [212]-[213] and [243]-[244] above (see [223]-[224] and [249]-[250] above). However, the publication of the ATO letter was protected by qualified privilege. In the circumstances neither the second applicant nor the third applicant has any entitlement to damages against the second respondent or the third respondent in respect of that publication (see [270] above). (h) By publishing the 15 September email the third respondent conveyed defamatory imputations of and concerning the second applicant that: (i) she had so conducted the affairs of the first applicant as to warrant official investigation by the Australian Taxation Office into whether she had engaged in criminal conduct including taxation fraud, money laundering and predatory pricing (see [226]-[227] above); (ii) she was reasonably suspected of being implicated in a major taxation fraud (see [231]-[232] above); and (iii) she defrauded everybody that had ever worked for her (see [236]-[237] above). In making these findings referable to the 15 September email I have assumed that the defamation law in the Special Administrative Region of Hong Kong and in the remainder of the People's Republic of China is the same as it is New South Wales. However, as I said at [41]: '... the general presumption that, in the absence of evidence to the contrary, foreign law is the same as Australian law is not inflexible. Where the law of the forum is governed by a statute and the law within Australia is itself lacking in uniformity, I doubt whether it could be presumed that the defamation law in China, including the Special Administrative Region of Hong Kong, is the same as it is in New South Wales.' In the absence of evidence as to the relevant defamation law in the Special Administrative Region of Hong Kong and in the remainder of the People's Republic of China or at least that part where Mr Zhou Jie was located at the time when he received the 15 September email, I do not consider that any award of damages should be made referable to the transmission of the 15 September email to Curie Chen and Zhou Jie. The relevant defamation law (if any) has not been proven. I would also note the findings made by me at [188]-[190] above in relation to the circumstances in which the 15 September email was transmitted to Mr Curie Chen and Mr Zhou Jie. As indicated above the second and third applicants claim damages including aggravated and exemplary damages. Particulars in respect of the claims for aggravated and exemplary damages are set out in paragraphs (a)-(l) on the second and third pages of the Third Further Amended Application filed 27 October 2006.


case_text: three purposes to be served by an award of damages for defamation were identified in the joint reasons of Mason CJ, Deane, Dawson and Gaudron JJ in Carson v John Fairfax & Sons Limited [1993] HCA 31 ; (1993) 178 CLR 44 ('Carson') at 60: (i) consolation for the personal distress and hurt caused to the relevant applicant by the publication; (ii) reparation for harm done to the relevant applicant's personal and, where appropriate, professional, reputation; and (iii) vindication of the relevant applicant's reputation. As pointed out in Carson the first two purposes are frequently considered together and constitute consolation for the wrong done to the relevant applicant. Vindication looks to the relevant attitude of others (per Hayne J in Rogers v Nationwide News Pty Limited [2003] HCA 52 ; (2003) 216 CLR 327 ('Rogers') at [60]; see also at [35]).


case_text: three purposes to be served by an award of damages for defamation were identified in the joint reasons of Mason CJ, Deane, Dawson and Gaudron JJ in Carson v John Fairfax & Sons Limited [1993] HCA 31 ; (1993) 178 CLR 44 ('Carson') at 60: (i) consolation for the personal distress and hurt caused to the relevant applicant by the publication; (ii) reparation for harm done to the relevant applicant's personal and, where appropriate, professional, reputation; and (iii) vindication of the relevant applicant's reputation. As pointed out in Carson the first two purposes are frequently considered together and constitute consolation for the wrong done to the relevant applicant. Vindication looks to the relevant attitude of others (per Hayne J in Rogers v Nationwide News Pty Limited [2003] HCA 52 ; (2003) 216 CLR 327 ('Rogers') at [60]; see also at [35]). However, in relation to s 46A it is appropriate to bear in mind what Hayne J said in Rogers at [72]-[76] with which Gleeson CJ and Gummow J agreed at [35]: '72 No doubt the purpose of comparing awards for defamation and awards in personal injury cases is to ensure that what Diplock LJ called "the scale of values of the duel" is not adopted. A person's reputation is not to be valued more highly than life or limb. If an award of damages for defamation is greater than the amount that would be allowed for the non-economic consequences of the most serious physical injuries with permanently disabling consequences, it may be evident that the amount awarded for defamation is manifestly excessive. In this way, the comparison which s 46A requires limits awards for defamation. What it does not do, however, is identify where, within the outer limits of proper awards, a particular case should find its proper level. It does not, for example, say that some or all forms of defamation should attract awards less than (or greater than) an award that might be made for (say) the loss of a limb. 73 Nor would it be consistent with the statutory adoption of the rule that "[d]amages for defamation shall be the damages recoverable in accordance with the common law" (s 46(2)) to understand s 46A as prescribing a particular, let alone a mathematical, relationship between the damages to be awarded for defamation and the damages for non-economic loss in personal injury awards. It is of the first importance to recall the fundamental principle that the damages to be awarded for defamation must compensate for the effect of the defamation on the particular plaintiff. Likewise, it is fundamental that the damages for non-economic loss in personal injury awards must compensate for the effect of the injury on the particular plaintiff. Classifying kinds of defamation and kinds of personal injury, and using that classification to assert some relationship between the damages to be awarded in these cases would deny those fundamental principles. Nothing in s 46A permits or requires it to be done. 74 In the end, what s 46A draws to attention is that damages awarded for defamation must take their proper place in the administration of justice. In particular, they must stand in a proper relationship with awards for the non-economic consequences of personal injury. The relationship which s 46A(2) identifies is not, however, some precise or mathematical relationship between particular cases of defamation and personal injury or between particular classes of such cases. To do that would compare the incomparable. Nonetheless, s 46A(2) should be understood as having two particular consequences of relevance to the present appeal. 75 First, it invites attention to the nature of the injury done by defamation compared with the consequences of physical injury. The injury done by defamation, even if serious, is often evanescent. By contrast, some personal injuries are permanent and devastatingly disabling. One of the principal purposes of an award of damages for defamation is to vindicate the wrong that was done. By contrast, damages for personal injury can compensate, but cannot right the wrong that was done. Yet, in neither defamation nor in personal injuries is there any measure by which the compensation for the non-pecuniary loss which the particular plaintiff has suffered can be assessed except what is "reasonable". 76 The second effect of s 46A(2) flows from both the reference to the "general range" of damages allowed in personal injury cases and the inclusion, within the class of personal injury cases to be considered, of cases where the damages to be allowed are regulated by statute. Treating cases where the damages allowable are capped by statute as included within the "general range" to be considered shows that those statutory limits imposed in cases of motor or workplace accident are not to be taken as being indirectly imposed as limits on the amount to be allowed in defamation. But the reference to the general range of damages does identify the highest sums awarded for the non-economic consequences of personal injury as what might be called a presumptive outer limit to awards for defamation. So much follows from the fact that rarely, if ever, will the harm done by a defamation be greater than the most serious form of physical injury which leads to permanent and serious disabilities. And if that represents the presumptive outer limit to awards for defamation, each particular award that is made must find a place within a range which is marked out in that way.' In determining the quantum of damages in the present case one matter to be taken into account is whether the reputations of the second and third applicants suffered any material damage at all. It is also appropriate to bear in mind, as Hayne J said in Rogers , that the injury done by defamation, even if serious, is often evanescent. The injuries in this case would seem to me to be transient in nature. On the question of the claims made by the second and third applicants for aggravated damages it is undoubtedly the case that the first and third respondents were unwilling to apologise for their conduct in publishing the defamatory matter. Suggestions were put by senior counsel for the applicants to the third respondent that he hated the second and third applicants and that he attacked them on a racial pretext. These suggestions were denied by the third respondent and I accept his denial.


case_text: Random House Australia Pty Ltd v Abbott [1999] FCA 1538 ; (1999) 167 ALR 224 a Full Court comprising Beaumont, Miles and Drummond JJ considered awards of damages that had been made in respect of a book entitled 'Goodbye Jerusalem: Night Thoughts of a Labor Outsider' written by Mr Bob Ellis and published by Random House Australia Pty Ltd. In that case modest amounts had been awarded by the Primary Judge by way of compensatory and aggravated damages broken down as to damages for injury to reputation, damages for injury to feelings and aggravated damages. One matter which was addressed on the hearing of the appeal was the relevance of a defendant's failure to apologise in determining both ordinary compensatory damages and aggravated compensatory damages. The Court held that a failure to apologise could be taken into account on both aspects of the matter.


case_text: reaching these determinations as to the amounts to be awarded by way of damages I have had regard to the principles enunciated by Beazley, Giles and Santow JJA in Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 ('Marsden') at [1313] et seq. In dealing with damage to reputation their Honours said at [1370] that, in fulfilling the purpose of reparation for harm done to, and vindication of, reputation, it is necessary to know the reputation said to have been injured. In principle, a plaintiff with a bad reputation will be entitled to lower damages than a plaintiff with a high reputation, because the injury to the reputation will be less if the reputation is already diminished. In this regard it is important to remember that reputation is to be contrasted with character, that is, what a person is as distinct from what other people think of the person, but 'character' can properly be used in the same sense as 'reputation'. Exemplary damages depart from the notion of compensation. They are separately assessed, and their purpose is to punish a respondent and teach a respondent that defaming an applicant does not pay. In assessing compensatory damages a jury must consider how much an applicant ought to receive whereas in assessing punitive damages a jury must consider how much a respondent ought to pay. Exemplary damages may be awarded, for example, when a newspaper respondent chooses to publish without belief in the truth of what it publishes because circulation will rise and enough money will be made to offset any damages, in the traditional words 'in contumelious disregard' of the applicant's rights (see per Beazley, Giles and Santow JJA in Marsden at [1317] and [1473]). In my opinion, publication by the third respondent of the 13 September facsimile on behalf of the first respondent did not demonstrate a contumelious disregard of the rights of the second and third applicants. It is apparent that the third respondent had a conviction that the second and third applicants had defrauded the Australian Taxation Office in relation to the disclosure of the taxable income of the first applicant. I do not consider the circumstances to be such as to warrant the imposition of exemplary damages in respect of publication of the 13 September facsimile in jurisdictions other than New South Wales.


case_text: knowledge that an applicant has a criminal record among the section of the community in which it is claimed that a defamatory imputation has been published forms part of an applicant's general reputation, which is of necessity brought into the field of relevancy by a claim by the applicant that his or her reputation has been injured (see per Hardie J in Wishart v Mirror Newspapers Ltd (1963) 63 SR (NSW) 745 at 756-7). As I understand the Defence to Third Further Amended Statement of Claim, the first and third respondents' case in respect of mitigation of damages was directed at the relevance of harm to reputation in the context of a person with a bad reputation. In the absence of evidence as to the reputation of the second and third applicants and having regard to the notoriety that would surround their convictions for very serious customs fraud offences, the clear inference is that they were people with diminished reputations as at September 2005. I now turn to the question of exemplary damages outside of New South Wales.


case_text: damages are awarded rarely. They recognise and punish fault, but not every finding of fault warrants their award. Something more must be found. (See per Gleeson CJ, McHugh, Gummow and Hayne JJ in Gray v Motor Accident Commission [1998] HCA 70 ; (1998) 196 CLR 1 at [12] and [20]).


case_text: proper approach to the determination of interest up to judgment in a defamation case was considered by McHugh JA, as his Honour then was, in John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131. Kirby P, as his Honour then was, agreed with McHugh JA's reasons in that case.


case_outcome: discussed

case_text: Exhibit A before me is the judgment of Thomas J in Akai Pty Ltd v Peoples Insurance Co Limited [1998] 1 Lloyd's Rep 90. In that case his Lordship concluded that Peoples Insurance had not submitted to the jurisdiction of the courts of New South Wales. He held that the judgment of the High Court of Australia ( Akai Pty Ltd v Peoples Insurance Co Ltd [1996] HCA 39 ; (1996) 188 CLR 418) was not one that was recognised as giving rise to a decision binding on Peoples Insurance in accordance with the rules of private international law operative in England. He concluded that because the parties had freely bargained for the English choice of law and jurisdiction clauses, that bargain should be upheld, unless there were strong reasons for not doing so and should not as a matter of comity give effect to the decision of the High Court of Australia which overrode that bargain and that choice ([1998] 1 Lloyd's Rep at 100). The effect of allowing the Australian proceedings to proceed, his Lordship held, would deprive Peoples Insurance of the results of that bargain by imposing a set of statutory provisions which made the contract much less favourable to the insurer than English law provided. 18 I am of opinion that those threats clearly conveyed that on the basis of English law as evidenced in Akai Pty Ltd v People's Insurance Co Ltd [1998] 1 Lloyd's Rep 90, the owners would seek to enjoin the further progress of these proceedings and the issue of any statement of claim pursuant to r 22 of the Admiralty Rules . 19 The basis on which the plaintiff seeks an injunction is, in effect, to preserve the subject matter of such rights as the plaintiff may have, having regularly invoked, as the concession of the unconditional appearance demonstrates, the jurisdiction of this court to decide the in rem proceedings. 20 The power of the court to protect its own processes is one that is not susceptible of definition in closed categories. The purpose for which the court, as a superior court of record, has inherent powers is to protect its processes is so that, inter alia, all persons may approach the court and so that its jurisdiction may be not merely invoked but exercised where it exists. 31 If the defendant were permitted to bring injunctive proceedings in London then on the evidence before me, which is uncontested, it is highly likely that the Commercial List Judge would grant an injunction on the basis and for similar reasons to that granted by Thomas J in Akai Pty Ltd v Peoples Insurance Co Ltd [1998] 1 Lloyd's Rep 90. If that were to happen then these proceedings would be unable to be pursued by the plaintiff at all and such rights as the plaintiff may have under the laws passed by the Parliament of the Commonwealth, and which the public policy of this nation regards as being ones which ought to be able to be availed of by persons who come before courts in this country, will be set at nought.


case_text: Exhibit A before me is the judgment of Thomas J in Akai Pty Ltd v Peoples Insurance Co Limited [1998] 1 Lloyd's Rep 90. In that case his Lordship concluded that Peoples Insurance had not submitted to the jurisdiction of the courts of New South Wales. He held that the judgment of the High Court of Australia ( Akai Pty Ltd v Peoples Insurance Co Ltd [1996] HCA 39 ; (1996) 188 CLR 418) was not one that was recognised as giving rise to a decision binding on Peoples Insurance in accordance with the rules of private international law operative in England. He concluded that because the parties had freely bargained for the English choice of law and jurisdiction clauses, that bargain should be upheld, unless there were strong reasons for not doing so and should not as a matter of comity give effect to the decision of the High Court of Australia which overrode that bargain and that choice ([1998] 1 Lloyd's Rep at 100). The effect of allowing the Australian proceedings to proceed, his Lordship held, would deprive Peoples Insurance of the results of that bargain by imposing a set of statutory provisions which made the contract much less favourable to the insurer than English law provided. 31 If the defendant were permitted to bring injunctive proceedings in London then on the evidence before me, which is uncontested, it is highly likely that the Commercial List Judge would grant an injunction on the basis and for similar reasons to that granted by Thomas J in Akai Pty Ltd v Peoples Insurance Co Ltd [1998] 1 Lloyd's Rep 90. If that were to happen then these proceedings would be unable to be pursued by the plaintiff at all and such rights as the plaintiff may have under the laws passed by the Parliament of the Commonwealth, and which the public policy of this nation regards as being ones which ought to be able to be availed of by persons who come before courts in this country, will be set at nought.


case_outcome: followed

case_text: In Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 Gleeson CJ and Gummow, Hayne and Crennan JJ said at [9]: 'What amounts to abuse of court process is insusceptible of a formulation comprising closed categories. Development continues. One example is the line of authority dealing with the stay of proceedings instituted in a second forum where there are pending proceedings in another forum and the continuance of the second proceedings would be an abuse of the process of the first forum ( Logan v Bank of Scotland (No 2) [1906] 1 KB 141; Maritime Insurance Co Ltd v Geelong Harbor Trust Commissioners [1908] HCA 37 ; (1908) 6 CLR 194; Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32 ; (1988) 165 CLR 197; Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538). Again, in Cardile v LED Builders Pty Ltd ((1999) [1999] HCA 18 ; 198 CLR 380 at 393 [25] ), Gaudron, McHugh, Gummow and Callinan JJ referred to the passage in the joint judgment in CSR Ltd v Cigna Insurance Australia Ltd ((1997) [1997] HCA 33 ; 189 CLR 345 at 391) where it was said of the grant of an anti-suit injunction that the counterpart of the power of a court to prevent the abuse of its processes was the power of the court to protect the integrity of those processes once set in motion.'


case_text: In CSR Limited v Cigna Insurance Australia Limited [1997] HCA 33 ; (1997) 189 CLR 345 at 391-392 Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ said: 'The counterpart of a court's power to prevent its processes being abused is its power to protect the integrity of those processes once set in motion (see, eg, with respect to the power to grant a Mareva injunction, Jackson v Sterling Industries Ltd [1987] HCA 23 ; (1987) 162 CLR 612 at 619, 621, 639; Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 535. See also Ridgeway v The Queen [1994] HCA 33 ; (1995) 184 CLR 19 at 60). And in some cases, it is that counterpart power of protection that authorises the grant of anti-suit injunctions. Thus, for example, if "an estate is being administered ... or a petition in bankruptcy has been presented ... or winding up proceedings have been commenced ... an injunction [may be] granted to restrain a person from seeking, by foreign proceedings, to obtain the sole benefit of certain foreign assets" ( Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871 at 892. See also Bank of Tokyo Ltd v Karoon [1987] AC 45 at 60, per Robert Goff LJ, and the cases there cited; Allstate Ltd v ANZ Banking Group Ltd [No 1] (1996) 64 FCR 1 at 26, and the cases there cited). Similarly, as Gummow J pointed out in National Mutual Holdings Pty Ltd v Sentry Corporation ((1989) 22 FCR 209 at 232. See also, eg, Laker Airways Ltd v Sabena, Belgian World Airlines (1984) 731 F 2d 909 at 927; Re Siromath Pty Ltd [No 3] (1991) 25 NSWLR 25 at 29-30), a court may grant an injunction to restrain a person from commencing or continuing foreign proceedings if they, the foreign proceedings, interfere with or have a tendency to interfere with proceedings pending in that court. The inherent power to grant anti-suit injunctions is not confined to the examples just given. As with other aspects of that power, it is not to be restricted to defined and closed categories 112 . Rather, it is to be exercised when the administration of justice so demands or, in the context of anti-suit injunctions, when necessary for the protection of the court's own proceedings or processes.' 22 In Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 Gleeson CJ and Gummow, Hayne and Crennan JJ said at [9]: 'What amounts to abuse of court process is insusceptible of a formulation comprising closed categories. Development continues. One example is the line of authority dealing with the stay of proceedings instituted in a second forum where there are pending proceedings in another forum and the continuance of the second proceedings would be an abuse of the process of the first forum ( Logan v Bank of Scotland (No 2) [1906] 1 KB 141; Maritime Insurance Co Ltd v Geelong Harbor Trust Commissioners [1908] HCA 37 ; (1908) 6 CLR 194; Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32 ; (1988) 165 CLR 197; Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538). Again, in Cardile v LED Builders Pty Ltd ((1999) [1999] HCA 18 ; 198 CLR 380 at 393 [25] ), Gaudron, McHugh, Gummow and Callinan JJ referred to the passage in the joint judgment in CSR Ltd v Cigna Insurance Australia Ltd ((1997) [1997] HCA 33 ; 189 CLR 345 at 391) where it was said of the grant of an anti-suit injunction that the counterpart of the power of a court to prevent the abuse of its processes was the power of the court to protect the integrity of those processes once set in motion.'


case_text: This court has recognised that rights granted to parties under the Trade Practices Act 1974 (Cth) are important considerations in determining whether or not stays should be granted under s 7 of the International Arbitration Act 1974 (Cth) and under contractual arrangements for arbitrations or choice of law or jurisdiction in other jurisdictional areas. Allsop J recently affirmed these matters in Walter Rau Neusser Oel und Fett AG v Cross Pacific Trading Limited [2005] FCA 1102 at [73] ; see also at [71]-[74] and [110]-[111]; Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 5) (1998) 90 FCR 1 at 7 and 23-24.


case_text: The proceedings were brought on quickly and the ship was arrested just immediately before its detention by the authorities was about to cease. Since then the solicitors have concentrated on the agitation of the inter-jurisdictional dispute. In Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 at 152-155, 164-165, the High Court made it quite clear that the pleadings and the rules were not the masters but were the servants of the interests of justice. If by oversight, or because of pressure of time, or otherwise the plaintiff has not hitherto been able clearly to articulate a formulated cause of action which could be maintained in this court but may not be able to be maintained in English courts, there should be some recognition that this court should allow its procedures to be invoked in a regular way and in a way in which rights, that do exist under Australian law, can be articulated and recognised. 35 I was of opinion that in order to protect the processes of this court and its ability to hear and determine what appears to me to be a bona fide dispute between these parties that the injunctive relief that I granted earlier this afternoon was appropriate. While ordinarily one would expect to see the precise definition of the issues in dispute and the controversy for the purposes of identifying the relevant constitutional matter under Chapter III of the Constitution of the Commonwealth in pleadings, r 22 of the Admiralty Rules recognises that indeed such a course is likely not to occur necessarily immediately the writ is issued. That is why there is a provision for time to be given to a plaintiff, after the writ in rem has issued, and after the defendant has appeared to it, to put on a statement of claim in personam.


case_text: Just as the court can protect the efficacy of execution in proceedings which it has not yet decided, it can also protect the ability of persons to approach the court who seek the regular invocation and exercise of its jurisdiction. The law of contempt both in England and Australia enables courts to grant injunctions to protect the administration of justice by protecting them from interferences by outside influences. So, in Raymond v Honey [1981] UKHL 8 ; [1983] 1 AC 1 at 10D Lord Wilberforce said: '... any act which is calculated to obstruct or interfere with the due course of justice, or the lawful process of the court is a contempt of court.' 24 His Lordship held ([1983] 1 AC at 13C) that the actions of prison officers in interfering with the plaintiff's mail by stopping him applying to the High Court in England even though it was only a temporary interference was a contempt. 25 In my opinion it is part of the court's inherent power to protect the efficacy of proceedings already on foot which the Admiralty Rules contemplate can be supplemented by the pleading of a statement of claim. That may include in personam claims and other claims outside those contemplated under the Admiralty Act 1988 (Cth). These proceedings, which have been regularly instituted should not be interfered with peremptorily by the threats which the defendant has made to enjoin the plaintiff from proceeding with its rights to invoke and have the court exercise its judicial power.


case_text: In Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511 at 585 [139] Gummow and Hayne JJ with whom, Gleeson CJ and Gaudron J, expressly agreed (198 CLR at 546 [25], [26]) said that: 'The central task was to identify the justiciable controversy. In civil proceedings that will ordinarily require close attention to the pleadings (if any) and to the factual basis of each claim.' 37 Having regard to the facts articulated in the evidence before me, the factual basis of the claims demonstrate that there is the potential for a controversy that will invoke or be capable of invoking relief under the Trade Practices Act 1974 (Cth) at the very least, in addition to whatever contractual remedies might be available. In my opinion, the plaintiff ought to have a reasonable opportunity in order to do so. 38 No serious opposition was made by the defendant to the application of the plaintiff that it should be allowed till 5 July 2006 in order to put on a statement of claim were I otherwise to grant an interim injunction. I took the view that the interim injunction that I was minded to grant was one to preserve a particular subject matter, namely, the ability of the plaintiff to invoke and have the court exercise jurisdiction under Acts of the Commonwealth that would not be recognised in English proceedings and which it would then be prevented from being able to litigate. Inter alia, there was the potential, as adverted to by counsel for the plaintiff, of involving brokers as third parties or defendants to the proceedings in personam and that was another consideration that I had in mind when granting the order.


case_title: Walter Rau Neusser Oel und Fett AG v Cross Pacific Trading Limited [2005] FCA 1102


case_outcome: cited

case_text: In these circumstances the Court of its own motion listed the matter for a directions hearing on 9 April 2008. At that directions hearing the Court directed the parties to file and serve submissions in relation to the disposition of the application pursuant to s 190F(6) of the Native Title Act on or before 7 May 2008. Subsequent to this date and in light of the Full Court's decision in the matter of Gudjala People # 2 v Native Title Registrar [2008] FCAFC 157 delivered on 27 August 2008, parties were invited by the Court to file and serve any further submissions prior to the hearing of the application. 5 On 21 May 2008 the applicant filed submissions in relation to all the Collard applications currently before the Court today ('the Collard Submissions') pursuant to the Order of the Court made on 9 April 2008. 6 The effect of the Collard submissions across the applications appears to be to the effect that the Court should not dismiss them under s 190F(6) of the Native Title Act because they are likely to be withdrawn in exchange for some form of recognition by the South West Aboriginal Land and Sea Council. It is not said in what way that is to be achieved or the terms in which it might be achieved. Somehow, it is said, it would recognise the status of Mr and Mrs Collard who are the Applicants.


case_text: This passage suggests that the AAT was influenced by some notion of estoppel on the part of the applicant, based upon its disapproval of Centrelink's failure to form the requisite opinion, and act upon it. If so, there is no justification for that approach: Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93 per Gummow J, and Attorney General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 18 per Mason CJ. See generally M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action (3 rd ed, 2004) at 359-64. It may be noted that there is no suggestion in the present case of any abuse of power, or breach of promise, on the part of the applicant.


case_title: Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93


case_text: They also distinguish Application by GasNet Australia (Operations) Pty Ltd [2003] ACompT 6 ; [2004] ATPR 41-978 ; [2003] ACompT 6 (GasNet) at [47] as directed to the need to apply the CAPM in a conventional way. According to their submissions, the Tribunal was not there suggesting that the CAPM formula could be applied only in a way that was consistent with an acceptance of its underlying assumptions. Consideration General 252 As previously noted, Telstra led expert evidence from Professor Stephen Faulkner Gray, Professor of Finance at UQ Business School, University of Queensland, and also the Managing Director of The Strategic Finance Group: SFG Consulting. Also as noted above, Optus led expert evidence from Jason Peter Ockerby, a director of the Competition Economists Group. The non-Optus access seekers led expert evidence from Dr Thomas Nicholas Hird, also of the Competition Economists Group. The three economists provided a "Joint Report of Experts" (Joint Report) to the Court. They also provided their own independent reports and gave extensive oral evidence. The authorities 253 The authorities referred to by Telstra (see [219] above) concerned statutory contexts different from the present one. They required that a "value" or a value of a particular kind or an amount of "compensation" be determined, and in some instances the basic expressions were elaborated upon or defined. Accordingly, the argument was open in those cases that the statute had been misconstrued. 270 I see no ground for criticism of ACCC's reasoning process by which it rejected Telstra's capital strike proposition. It was at liberty to consider that in the real world investors do not behave in the way in which the capital strike proposition would have them behave. Accordingly, in this respect ACCC did not behave unreasonably or irrationally, and neither error of law nor Wednesbury unreasonableness is made out. Inconsistency and Application by GasNet Australia (Operations) Pty Ltd [2003] ACompT 6 ; [2004] ATPR 41-978 ; [2003] ACompT 6 271 Telstra's contention that there is a fundamental inconsistency in relying on the CAPM and accepting the heterogeneity of investor expectations is well expressed at [68] of Telstra's submissions to ACCC: ...the conventional versions of the Capital Asset Pricing Model (" CAPM "), [to] which both the Commission and the Tribunal refer in their previous regulatory decisions, do not extend in any simple way to heterogeneous investor information and expectations. As a result, if the Commission and the Tribunal genuinely hold the view that investors have heterogeneous information and expectations, they cannot continue to rely on the models they have conventionally used to determine allowed rates-of-return. To do so would be to contradict the requirement the Tribunal has set out in earlier decisions that the CAPM be applied in a manner consistent with its underlying assumptions. The reference in the last section to "earlier decisions" is a reference to the Tribunal's decision in GasNet at [47]. The Tribunal there stated: The ACCC erred in concluding that it was open to it to apply the CAPM in other than the conventional way to produce an outcome which it believed better achieved the objectives of s 8.1. In truth and reality, the use of different values for a risk free rate in the working out of a Rate of Return by the CAPM formula is neither true to the formula nor a conventional use of the CAPM. It is the use of another model based on the CAPM with adjustments made on a pragmatic basis to achieve an outcome which reflects an attempt to modify the model to one which operates by reference to the regulatory period of five years. The CAPM is not a model which is intended to operate in this way. The timescales are dictated by the relevant underlying facts in each case and for present purposes those include the life of the assets and the term of the investment. The reference to "s 8.1" is a reference to s 8.1 of the National Third Party Access Code for Natural Gas Pipeline Systems. Section 8.1 set out the objectives according to which a "Reference Tariff" and "Reference Tariff Policy" were to be designed. I do not think that the Tribunal's observation at [47] set out above is relevant to the question whether ACCC was obliged, in order to be consistent, to accept as according with the real world the assumptions according to which the CAPM was formulated. Inconsistency and the expert evidence 272 I do not find it necessary or think it desirable to attempt to describe comprehensively the effect of the totality of the evidence of the expert witnesses, but certain aspects of the Joint Report, in particular, are noteworthy. 273 The experts agreed that: the required return on equity capital cannot be estimated with great precision; the Sharpe-Lintner CAPM relies on a number of assumptions that are unrealistic, one of which is that of homogeneous investor expectations about the future prospects of each firm; the Sharpe-Lintner CAPM pricing relation can be derived adopting assumptions different from those originally employed by Sharpe and Lintner, one of those different assumptions being that investors have heterogeneous expectations about the future prospects of each firm, but other assumptions are required to arrive at the relation, and the pricing relation may hold only approximately; the Sharpe-Lintner CAPM allows investors to have heterogeneous attitudes towards risk (different levels of risk aversion); the pricing relationship used by ACCC was consistent with that originally developed by Sharpe and Lintner and also that subsequently derived from it using the assumption of heterogeneous expectations and other additional assumptions; heterogeneity of risk aversion is already allowed for in the Sharpe-Lintner CAPM.


case_text: The grounds on which Telstra relies in these proceedings are set out in the following table (Table), the numerals being the number of the ground in the relevant current form of the application for an order of review: TELSTRA'S GROUNDS PROCEEDINGS Agile LSS 69/2008 Adam LSS 70/2008 Primus LSS 72/2008 Amcom LSS 73/2008 Network Tech LSS 75/2008 TPG LSS 77/2008 Primus ULLS 78/2008 Macquarie ULLS 105/2008 XYZed ULLS 529/2008 PowerTel ULLS 531/2008 Request ULLS 533/2008 Optus ULLS 717/2008 Chime ULLS 718/2008 Primus ULLS (Connections) 719/2008 A Pooling and Allocation Method s 152CR(1)(d) - error of law 5 5 5 5 5 5 2 2 1 1 1 1 1 B ULLS Model Terms s 152AQB(9) procedural ultra vires and failure to take into account relevant consideration 4 4 3 3 3 3 C Call Diversion FD not authorised by Act and made in excess of jurisdiction 4 4 1 D WACC (Weighted Average Cost of Capital) error of law and Wednesbury unreasonableness 6 6 6 6 6 6 3 3 2 2 2 2 2 E Line costs error of law, no evidence and statutory procedural ultra vires 3, 4 3, 4 3, 4 3, 4 3, 4 3, 4 F 2007 LSS Pricing Principles s 152AQA(6) Errors of law and taking into account irrelevant consideration 2 2 2 2 2 2 10 The second respondents can be conceived of as falling into groups according to their legal representation. Mr A Robertson SC with Mr S J Free of counsel appeared for Optus and XYZed. I was told that those companies form part of the Singtel Optus group. Ms M Sloss SC with Mr M J Hoyne of counsel appeared for Agile, Adam, Amcom, Network, Macquarie, PowerTel, Request, Chime and Primus. Mr M J Hoyne of counsel appeared for TPG. 11 In all proceedings Dr J E Griffiths SC and Ms M N Allars appeared for Telstra. Mr J S Hilton SC and Mr M H O'Bryan appeared for ACCC. 193 Ground 6(b) is Wednesbury unreasonableness (cf Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), both under the general law and as reflected in s 5(1)(e) when read with s 5(2)(g) of the ADJR Act. The FD is said to be illogical, irrational and perverse because it was based on a manifestly erroneous economic analysis. 194 In its amended application for an order of review, Telstra gives particulars of Ground 6 in 10 paragraphs that can be paraphrased as follows: (i) ACCC determined the WACC on the basis of the Capital Asset Pricing Model (CAPM); (ii) A fundamental assumption of the CAPM is that all investors require the same return from investment in a particular asset irrespective of their risk preferences; (iii) Telstra put a "welfare asymmetry argument" to ACCC to the effect that the WACC should be set so as to take sufficient account of the social consequences of underestimating it, such as that necessary investment may not be undertaken because of the perceived inadequacy of the return on capital invested; (iv) ACCC rejected this submission on the ground that it was based on an assumption that all investors have homogeneous expectations as to the return required from a particular asset, when, in practice, they have heterogeneous expectations as to that return; (v) The basis on which ACCC rejected Telstra's submission in (iii) and made the finding in (iv), contradicted a fundamental assumption in ACCC's setting of the WACC using CAPM, namely, that all investors have homogeneous expectations as to the return required from a particular asset; (vi) Further, or in the alternative to (i) to (v) above, ACCC rejected Telstra's submission referred to at (iii) on the basis of the availability of capital at a lower than normal rate of return in relation to an asset; (vii) ACCC's conclusions referred to in (v) and (vi), even if the CAPM economic framework is not adopted, are based on the manifestly erroneous premise of markets being in a state of disequilibrium and/or of investors being irrational; (viii) By reason of (i) to (vi) above, ACCC's setting of the WACC on the basis of an erroneous principle was an error of law; (ix) By reason of (i) to (vii) above, ACCC's setting of the WACC was illogical, irrational and perverse; (x) In the result the FD is invalid (or liable to be set aside) as infected by jurisdictional error on the grounds stated in ss 5(1)(f) and 5(1)(e) (when read with s 5(2)(g)) of the ADJR Act. Some principles of economics 195 It is common ground that a fair or efficient price must include as one component the fair return that Telstra is required to give in return for the equity and loan capital that it needs. In the regulatory framework, the standard practice for calculating this fair return is by reference to an estimate of the regulated firm's WACC. The WACC is a weighted average of: (a) the return that would be required by the providers of debt capital to the firm as a sufficient incentive to provide that debt capital; (b) the return that would be required by the providers of equity capital to the firm as a sufficient incentive to provide that equity capital. 227 In support of proposition (a), Telstra refers to cases in which the ground of review often referred to as Wednesbury unreasonableness has been described. 228 In relation to Telstra's proposition (b), Telstra refers to the discussion of steps (b) to (f) in relation to Ground 6(a) above. 229 In respect of proposition (c), Telstra submits that ACCC's reasons for rejecting the welfare asymmetry argument were fundamentally illogical and perverse in at least two ways. 245 Optus submits that the Wednesbury unreasonableness ground of review does not extend to an error of reasoning in making a finding of fact about a matter that is one of many factual elements in the determination of an access dispute. Non-Optus and XYZed access seekers' submissions 246 The non-Optus and XYZed access seekers, to whom I will refer as the non-Optus access seekers, emphasise that the CAPM and the WACC provide only estimates, and that it is not possible to observe whether the figures that they give are correct or not. They are only formulae, cannot take into account all of the real world effects, and their inputs are unknowns. 247 The non-Optus access seekers identify two major questions on which the expert witnesses disagree: (a) Is it a necessary assumption of the CAPM formula used by ACCC that investors have homogeneous expectations? (b) If it is, is there any illogicality in ACCC's using the CAPM to arrive at the WACC, then rejecting Telstra's welfare asymmetry argument on the basis, inter alia, that investors do not have homogeneous expectations? 249 In their written submissions, the non-Optus access seekers summarise the experts' evidence in relation to these questions, but submit that it is not necessary for the Court to resolve the debate between them. Those parties submit that if the Court should conclude that ACCC's approach is supported by a respectable body of economic thought, that suffices to defeat Telstra's claim based on error of law and Wednesbury unreasonableness. Nonetheless, they submit that the evidence and Telstra's submissions do not demonstrate illogicality in ACCC's reasoning process for a number of reasons on which they elaborate. 250 The non-Optus access seekers distinguish the valuation of land cases relied on by Telstra as turning on the terms of particular statutes. They note that Telstra purports to concede (as it must) that illogicality or unreasonableness do not necessarily constitute reviewable error unless there is a legal principle or statutory provision that attracts that consequence: they cite Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20 / 2002 (2003) 198 ALR 59 ; [2003] HCA 30 ( S20 ) at 61 per Gleeson CJ. Whether relying on Wednesbury unreasonableness or "illogicality, unreasonableness and perversity", as in S20 , one must identify a particular statutory provision or other legal principle that has been infringed. The non-Optus access seekers submit that Wednesbury unreasonableness is directed at outcomes, whereas S20 illogicality is directed at processes of reasoning: see S20 [2003] HCA 30 ; 198 ALR 59 at 76 per McHugh, Gummow JJ, 88 per Kirby J. 257 In para 6 of its amended application for an order of review, Adam referred to Wednesbury unreasonableness as "further or in the alternative" to the error of law ground, and gave the same particulars of both (see [194] above). In its submissions, however, while acknowledging substantial overlap between the two grounds, Telstra distinguished between them (see [218] (error of law) and [226] ( Wednesbury unreasonableness) above). 261 While I will examine the alleged error, illogicality, irrationality and perversity of which Telstra alleges ACCC was guilty, in my view the alleged inconsistency in reasoning process on which Telstra seizes does not constitute either error of law or Wednesbury unreasonableness, because Telstra has not related it to a particular statutory provision or legal principle that the inconsistency is said to have infringed. The assumptions underlying the CAPM 262 In the report annexed to his first affidavit, filed in the Adam LSS proceeding, Professor Gray noted that the CAPM is mathematically derived under a number of formal assumptions which are set out in most standard finance textbooks. Citing C Jones, Investments: Analysis and Management (John Wiley & Sons Inc, 2002) at 531, Professor Gray listed the assumptions as follows: All investors have identical probability distributions for future rates of return; they have identical (or homogeneous) expectations with respect to the three inputs of the portfolio model (expected returns, the variance of returns and the correlation matrix). Therefore, given a set of security prices and a risk-free rate, all investors use the same information to generate an efficient frontier; All investors have the same one-period time horizon; All investors can borrow or lend money at the exogenously given risk free rate of return and there are no restrictions on short sales of any asset; All assets are marketable (perfectly divisible and perfectly liquid) and there are no transaction costs; There are no personal income taxes investors are indifferent between capital gains and dividends; There is no inflation; There are many investors and no single investor can affect the price of a stock through his or her buying and selling decisions. Investors are price takers and act as if prices are unaffected by their own trades; and Capital markets are in equilibrium. 263 In oral evidence, Professor Gray explained the nature of economic models and the unrealistic nature of the assumptions underlying them as follows (T541): Every assumption of every economic model is unrealistic. ... I should expand upon that, perhaps. The way every economic model works is to start with a set of assumptions that are necessarily unrealistic, which is why they are called assumptions. They are not descriptions of reality. Based on those simplifying assumptions, we apply an internally consistent set of logic or mathematical derivation, and that produces some outputs. When evaluating the use or worth of an economic model, we don't have any regard to the reality of the assumptions. We look at the effectiveness or the use to which the outputs can be put. So that might be, in terms of in this example, determining what an appropriate return would be for a regulated monopoly asset. If the model works, if it's useful, if it explains something or makes some useful predictions that are supported empirically, then it will be a successful model. All of the models in economics are based on a set of assumptions that try to simplify very complex phenomena into something that can be modelled. That is the whole reason for having those assumptions. Indeed, every assumption in every economic model is for that reason unrealistic. That is the whole point of having those assumptions. 270 I see no ground for criticism of ACCC's reasoning process by which it rejected Telstra's capital strike proposition. It was at liberty to consider that in the real world investors do not behave in the way in which the capital strike proposition would have them behave. Accordingly, in this respect ACCC did not behave unreasonably or irrationally, and neither error of law nor Wednesbury unreasonableness is made out. Inconsistency and Application by GasNet Australia (Operations) Pty Ltd [2003] ACompT 6 ; [2004] ATPR 41-978 ; [2003] ACompT 6 284 In my view neither the error of law ground nor the Wednesbury unreasonableness ground is made out in respect of the WACC. E LINE COSTS Introduction 285 Telstra raises two grounds in respect of "line costs" in the Amcom, Adam, Agile, Primus (the acronym "AAAP" has been used to refer to these four access seekers who made a joint submission in the ACCC arbitrations), Network and TPG proceedings. These are all six of the LSS proceedings. I will refer to Adam as representative. 286 Both grounds concern the access seekers' business plans, and, in particular, the question whether those business plans provided a justification for not including a contribution to line costs in the annual charge for access to the LSS (LSS Annual Charge). 385 Telstra contends that s 152DB(1)(b) had the effect, in the circumstances of the present case, of requiring ACCC to inquire into and investigate a particular matter. Telstra submits that this statutory duty may be no less than the duty developed at common law in connection with Wednesbury unreasonableness, and refers to Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170 per Wilcox J; Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273 ; Minister for Immigration and Citizenship v Le [2007] FCA 1318 ; (2007) 164 FCR 151 at [60] - [79] ; Visa International v Reserve Bank of Australia [2003] FCA 977 ; (2003) 131 FCR 300 at [623] - [627] . That common law rule is that a failure by a decision maker to obtain "centrally relevant" information on a critical issue which the decision maker knows or ought reasonably to know is readily available, may be so unreasonable that no reasonable decision maker would have proceeded to make the decision without making an inquiry with a view to obtaining the information, in default of which the decision will be an invalid exercise of power. 386 Telstra, however, disclaims reliance on Wednesbury unreasonableness ( Wednesbury unreasonableness is recognised by the ADJR Act as a ground of review under ss 5(1)(e) and 5(2)(g) of that Act). 387 The access seekers submit that the duty under s 152DB(1)(b) can be no greater than the common law duty referred to above. This is because, so they argue, the legislative purpose and primary provision of s 152DB(1)(b) is to require ACCC to act as speedily as possible, while the remainder of para (b) sets a limit on this requirement. That remainder does not impose additional obligations on ACCC. 388 Telstra, on the other hand, argues that primacy must be given to the investigation and inquiry mandated by s 152DB(1)(b), and suggests that the duty to act with speed indicates the manner in which that inquiry and investigation are to be undertaken.