case_text: the two immediately lesser base penalty percentages, the definitive way of conceiving their differentiation and application is that offered, again in respect of materially analogous predecessor provisions in the ITAA 1936, by the majority in Hart v Commissioner of Taxation (2003) 131 FCR 203 at 214: [43] Recklessness is a concept well known to the law, particularly in the fields of tort and criminal law. In those fields, recklessness will usually be found to have been established if the person's conduct shows disregard of, or indifference to, consequences foreseeable by a reasonable person. In some contexts a subjective test is applied, but in others the test is objective. In BRK (Bris) Pty Ltd v Commissioner of Taxation [2001] FCA 164 ; (2001) 46 ATR 347 at 364 Cooper J made the following observations in relation to recklessness in the context of s 226H: "Recklessness in this context means to include in a tax statement material upon which the Act or regulations are to operate, knowing that there is a real, as opposed to a fanciful risk, that the material may be incorrect, or be grossly indifferent as to whether or not the material is true and correct, and that a reasonable person in the position of the statement-maker would see there was a real risk that the Act and regulations may not operate correctly to lead to the assessment of the proper tax payable because of the content of the tax statement. So understood, the proscribed conduct is more than mere negligence and must amount to gross carelessness." [44] There is a line between recklessness and dishonesty, and as the Explanatory Memorandum for the Taxation Laws Amendment (Self Assessment Bill 1992 (Cth) (at p 98) confirms, a finding of dishonesty is not necessary for a taxpayer to be subject to a s 226H penalty. Wherever a tax return includes deductions that are not allowable, a foreseeable consequence is that there will be a tax shortfall, particularly in a system of self assessment. But, in the ordinary case, the mere fact that a tax return includes a deduction which is not allowable is not of itself sufficient to expose the taxpayer to a penalty. Negligence, at least must be established although there are some sections (eg s 226K) which impose a liability in particular circumstances even if the taxpayer has not been negligent. The context makes it clear that recklessness means something more than failure to exercise reasonable care (s 226G), but less than an intentional disregard of the Act (s 226J). On the characterisation of events which I prefer, Mr Russell has not exhibited disregard of, or indifference to, consequences reasonably foreseeable by a reasonable person. I do not consider that he has been "reckless". Has he, nonetheless, failed to take reasonable care to comply with the ITAA 1997, in particular, Part 2-42, such that a tax shortfall has resulted in each income year? Mr Russell seems to me to have operated on the assumption, notwithstanding his professed ignorance at the time of Australian income tax law, that his and Ancath's positions under Australian income tax law were, for all practical purposes, the same as those which prevailed under the New Zealand income tax law with which he had at least passing familiarity. He had this to say in cross examination about the nature and extent of his knowledge of the two countries' taxation regimes: HIS HONOUR: You didn't seek to explore whether your New Zealand qualifications might translate into Australian registration?---For accounting to Australia, I was aware that there were extra examinations that would have to be done, and I just wasn't interested. Whilst some of the tax law is very similar to New Zealand, there are lots of areas that are totally different, and, in fact, so different that there isn't a comparable in New Zealand. And I was just my days of study are long gone, and I just wasn't interested. I took this to be indicative of Mr Russell's position throughout the income years in question and when he came to prepare his returns for those years. The adoption of Ancath as the entity via which Tradecorp would come to have the benefit of his services exhibited a degree of sophistication on both Mr Russell's and Mr Zarb's parts. He was not to be just one of Tradecorp's wage and salary earners. Yet he must have known, or at least he has not disproved, that he knew that he and only he was to perform all of the work for which Tradecorp was to pay money. Had he undertaken that work as an employee of Tradecorp there could have been no question that he would thereby be personally liable to Australian income tax as a wage and salary earner. Yet, notwithstanding the degree of sophistication in the arrangement and his realisation that there were "lots of areas" in which Australian taxation law was "totally different" to that of New Zealand and his own lack of interest in studying Australian taxation law, he chose not to seek any advice at all about what might be the Australian taxation law consequences of the adoption of the arrangement whereby Ancath came to be interposed. That to me in the circumstances was a failure to take reasonable care to comply with the ITAA 1997. In each income year that failure resulted in a false statement being made by Mr Russell as to his assessable income and, in turn, to a tax shortfall. Having regard to item 3 of the table in s 284-90(1) of schedule 1 to the TAA, he is liable under s 284-75 to pay an administrative penalty of 25% of his shortfall amount for these income years.


case_outcome: cited

case_title: Iannella v French [1968] HCA 14 ; (1968) 119 CLR 84

case_text: is nothing in the judgements delivered in the Full Court which would call into question the correctness of her Honour's conception of what constitutes "intentional disregard". I respectfully agree with her Honour's observations. They serve to confirm what a reading in context of "results from intentional disregard" would otherwise suggest. Within s 290-40 of Schedule 1 to the TAA, Parliament has specified gradations of increasing severity in terms of conduct by a taxpayer or his, her or its agent which has resulted in a tax shortfall. Of these, "intentional disregard" is the most serious in terms of the infliction of a base penalty. It is intended to be qualitatively different to and more severe than "recklessness". That suggests that wilful blindness of a kind which in other contexts has been regarded as sufficient to supply the mental element in adverbial qualifications such as "knowingly" or "wilfully", q.v. Iannella v. French [1968] HCA 14 ; (1968) 119 CLR 84 at 95-96 per Barwick CJ and Comptroller-General of Customs v Woodlands Enterprises Pty Ltd [1996] 1 Qd R 589 at 602-603 per Pincus JA, McPherson JA agreeing, is insufficient to supply the mental element in "intentional disregard". Rather, conduct of that wilfully blind kind would fall under the rubric of "recklessness" for base penalty purposes.


case_outcome: considered

case_text: being so, the "results test" then falls to be answered. That test is found in s 87 - 18 of the ITAA 1997. In IRG Technical Services Pty Ltd v Commissioner of Taxation [2007] FCA 1867 ; (2007) 165 FCR 57 at 70, [36] , Allsop J (as his Honour then was) observed of that section that its elements "were to be understood against the background of the jurisprudence concerning independent contractors". In so doing, his Honour referred with approval to an earlier observation made by Lindgren J in Commissioner of Taxation v Metaskills Pty Ltd [2003] FCA 766 ; (2003) 130 FCR 248 at 254, [28] , that, "Broadly speaking, an individual or entity, who or which is an 'independent contractor' under traditional concepts should meet the results test.". Their Honours were not in these cases promoting the use of the common law as a substitute for the language of the statute, for that would clearly be erroneous. It is just that, for example, the phrase "the income is for producing a result" in s 87 - 1 (a) and s 87 - 18 (3)(a) of the ITAA 1997 obviously draws upon one of the traditional touchstones for distinguishing between a contract for service and a contract of service. Thus guidance offered by cases decided at common law as to whether a payment is or is not for the production of a result is relevant. That this is what Parliament intended is confirmed by recourse to secondary materials, as Allsop and Lindgren JJ note in their respective judgements. Approaching the matter this way, I respectfully agree with their Honours observations in relation to s 87 - 18 .


case_outcome: followed

case_text: remains the question of whether the Commissioner was in error not to remit any penalty? As to this, either by concession or by virtue of the conclusions which I have reached in respect of applicable base penalty category, the Commissioner's decision is exposed as one founded on premises which were wrong in law. It thus falls to the Court to reach its own conclusion as to how the Commissioner ought to have exercised his remission discretion: see, by analogy, Kolotex Hosiery (Australia) Pty Ltd v Commissioner of Taxation (1975) 132 CLR 535 at 567-568 and 578-579. That art 7 of the NZ Double Taxation Agreement looks to enterprise, not profit per se, is, as the French decision I have noted in respect of this type of OECD Model Agreement, underscores a subject of some controversy and, in domestic law, hitherto novelty. Further, Mr Russell was patently not seeking to conceal Ancath's income from Tradecorp from revenue officers on both sides of the Tasman Sea. He was careless, but these two factors, in my opinion, tell in favour of the remission of the whole of the penalty on this occasion. Goods and Services Tax Assessment I have already concluded that the partnership hitherto constituted by Mr Russell and his then wife was dissolved on 23 February 2004. It necessarily follows from this conclusion that, on and from this date, there was no partnership "entity" entitled to claim input tax credits under the GST Act. To this extent, the appeal against the GST assessment must fail.


case_text: NZ Double Taxation Agreement generally follows the OECD Model Double Taxation Agreement (OECD Model). It is settled that, in construing such an agreement, a court may have regard to, inter alia, the OECD Commentary on its model agreement: Thiel v Commissioner of Taxation [1990] HCA 37 ; (1990) 171 CLR 338 at 344, 356-357. The interpretative use of that type of extrinsic material is a manifestation of the recognition that a double taxation agreement is but a particular example of an international treaty. The Full Court has sounded a cautionary note in relation to the use for the purpose of interpretation of commentary published after the ratification of a double taxation agreement: McDermott Industries (Aust) Pty Ltd v Commissioner of Taxation [2005] FCAFC 67 ; (2005) 142 FCR 134 at 144, [42] .


case_text: in respect of an appeal determined when the Court's powers, including that of reducing the assessment, were as set out in the former s 199(1) of the ITAA 1936, and notwithstanding that he did not adopt the method of calculation promoted by the taxpayer on objection and before him on appeal, Windeyer J in Mercantile Credits Ltd v Commissioner of Taxation [1971] HCA 1 ; (1971) 123 CLR 476 at 489 had no difficulty in concluding that the assessments concerned should be varied by order so as to reduce the amounts of the tax payable.


case_outcome: applied

case_text: appears that Mr Russell instituted proceedings against Tradecorp in the Industrial Commission in the "unfair contracts" jurisdiction conferred upon it by s 276 of the Industrial Relations Act 1999 (Qld). It further appears that Tradecorp sought to have those proceedings dismissed. The outcome of those proceedings and especially any conclusions reached by the Industrial Commission as to Mr Russell's credibility, his status vis-à-vis Tradecorp, whether Ancath had a contract for service with Tradecorp or whether Mr Russell ought properly to be regarded an employee of Tradecorp are not relevant in either the income tax or GST appeals: s 91(1) Evidence Act 1995 (Cth) (Commonwealth Evidence Act ); National Mutual Life Association of Australasia Ltd v Grosvenor Hill (Qld) [2001] FCA 237 ; (2001) 183 ALR 700 at 715, [46] . Mr Russell's prior statements and submissions are though in a different category. That Mr Russell performed accounting and managerial work for Tradecorp at its Mackay business premises for about four years between August 2000 and August 2004 is clear. His title when performing that work was that of Tradecorp's "financial controller". He was appointed to undertake that work by Tradecorp's managing director, Mr Tony Zarb. That followed an interview with Mr Zarb and Tradecorp's outgoing financial controller, Ms Gillian Sandhoff. It is also clear that Mr Russell ceased undertaking this work following a breakdown in relations between him and Mr Zarb. It is not necessary in these proceedings to explore the rights, wrongs and responsibilities for that breakdown in relations. Relations between Tradecorp and Ancath were at least purportedly regulated by a written agreement made between those companies made on 4 August 2000 (the Tradecorp Agreement). Mr Russell, I note, has signed the agreement on behalf of Ancath underneath the common seal of that company. Mr Zarb has apparently signed on behalf of Tradecorp.


case_title: Re Peerless Marine Pty Ltd and Commissioner of Taxation [2006] AATA 765 ; 2006 ATC 2419

case_text: v Commissioner of Taxation (1994) 94 ATC 4049 (Saffron's Case) is a case which preceded the ANZ Savings Bank Case but which was decided after the 1986 amendments. Saffron's Case was an appeal from the Administrative Appeals Tribunal, not an appeal in the original jurisdiction against an objection decision. Nonetheless, in his reasons for judgement, Davies J (at 4050-4051) made the following observations of a generic nature as to the role of either this Court or the Tribunal when seized with a challenge to (termed by him a review of) an objection decision: The review authority, the Court or the Tribunal, must come to its own decision on the facts and the issues. Walsh J said in Krew's case at 4216:- "I have a duty to reach my own conclusions on the questions of fact which have to be decided and to give effect to those conclusions. .. I must make my own decisions as to the facts." Although the taxpayer may be untruthful and a tax evader, that factor, of itself, is no reason not to undertake a calculation of income tax as contemplated by the Act, if such a calculation can be made. As Walsh J said in Krew's case at 4219, "A witness upon whose word one cannot rely may yet give evidence which is true in part." In that case, although Walsh J held that he could not accept the appellant himself as a reliable witness, he nevertheless found that several of the facts alleged by the taxpayer were established as a matter of probability and accordingly that four of the amended assessments before the Court should be set aside. Moreover, in the calculation of the taxable incomes of years past, exact proof may not be available. As Burchett J said in Ma v Commissioner of Taxation (1992) 92 ATC 4373 at 4379:- '... the making of estimates upon Inexact evidence, which IS so much a feature of both judicial and administrative decision-making, cannot be uniquely excluded from appeals against betterment assessments.' If, despite the general untruthfulness of a witness and the lack of records, the Court or the Tribunal nevertheless feels satisfied, as a matter of probability, as to the existence of a relevant fact or factor, effect must be given to that conclusion. Though these observations predate by some months those made later in that year by the High Court in the ANZ Savings Bank Case , they draw upon the same cases which the High Court regarded as authoritative and are not inconsistent with the High Court's own observations. However, though the observation made by Davies J that "effect must be given to that conclusion" is no less generic than his Honour's other observations, it is necessary to recall that he was not called upon in that case expressly to decide whether it was within the Court's power to set aside the objection decision so as to increase the amount of an appellant taxpayer's taxable income. The other two judges constituting the Full Court in Saffron's Case , Gummow and Lee JJ, did not find it necessary to make such generic observations. A number of propositions may be distilled from the authorities as to what constitutes the carrying on of a "business" (adopting for this purpose a summary which commended itself to Deputy President Hack SC in Re Peerless Marine Pty Ltd v Commissioner of Taxation [2006] AATA 765 ; 2006 ATC 2419 (Peerless Marine)): Identifying the "commencement" of a business is, obviously, a question of fact but that does not mean that the question will always admit of an easy answer. That is nicely illustrated by Peerless Marine . Peerless Marine professed to be carrying on a boat production business in respect of luxury motor cruisers. It had sold none but sought, inter alia, to claim input tax credits in respect of the design and construction of a prototype. It succeeded in establishing that its then activity did amount to an "enterprise" for GST purposes because, inter alia, there was evidence that the development and successful exhibiting and availability for inspection of a prototype was an essential first step in the carrying on of such a business, not a precursor to the commencement of that business. Determining whether or not a particular business exists calls for a thorough understanding of the nature of the market in which the asserted business operates and exactly what is entailed in commencing to carry on business in that market. On this basis, the partnership is not entitled to the input tax credits claimed because they were not acquired for a creditable purpose. During the course of what Mr Russell termed "Stage 1" in his business plan, there was not yet a business of a naturist retreat being carried on, only the undertaking of steps which were precursors to the commencement of such a business. A remaining issue is whether, insofar as it related to a period prior to 1 July 2002, the issuing of the GST assessment was beyond power. The inspiration for Mr Russell's raising this issue would seem to be the supposed expiration of the 4 year period after which, subject to an exception to which I shall shortly refer, in the absence of a notice from the Commissioner within that period requiring payment, an unpaid net amount together with any related general interest charge ceases to be payable: see s 105-50 of Schedule 1 to the TAA. The exception to this statutory expiration arises where the Commissioner is satisfied that the payment of the amount was avoided by fraud or evasion.


case_text: as to what constitutes "intentional disregard" for the purposes of determining a base penalty amount was offered by Collier J in Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCA 345 ; (2007) 66 ATR 1 at [43] when considering a materially analogous predecessor provision, s 226J of the ITAA 1936: [43] As made clear by the Explanatory Memorandum to the Taxation Laws Amendment (Self Assessment) Bill 1992 which introduced s 226J, s 226J requires knowledge by the taxpayer that, for example, it has claimed a deduction knowing that it is not allowable. Accordingly, "intentional disregard" of the ITAA 1936 or regulations requires, inter alia, an understanding by the taxpayer of the effect of the relevant legislation or regulations, an appreciation by the taxpayer of how that legislation or regulation applies to the circumstances of the taxpayer, and finally, deliberate conduct of the taxpayer so as to flout the ITAA 1936 or regulations. The legislation treats "intentional disregard" differently from, and more seriously than, negligence to comply with the Act (cf s 226G) or recklessness with regard to the correct operation of the Act (cf s 226H).


case_text: appeal from her Honour's decision in that case, including so much of it as related to penalty, was later dismissed by the Full Court: Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCAFC 154 ; (2007) 243 ALR 728.


case_title: Re A Oyi Abp (2002) 4 ITLR 1009

case_text: these, the case from which I have derived particular assistance is a decision of Finland's Supreme Administrative Court in relation to whether an inconsistency existed between the attribution rules in that country's controlled foreign company (CFC) regime in its domestic revenue law and art 7 of its double taxation agreement with Belgium, which was in conformity with the OECD Model: Re A Oyi Abp (2002) 4 ITLR 1009 (Re A Oyi Apb). In that case, the Supreme Administrative Court observed (at 1064): Tax treaties are therefore concerned with judicial double taxation which means that the same taxable person is taxed on the same income in two different countries. Tax treaties do not generally concern economic double taxation, that is, where the same income is taxed in the hands of several taxable persons. Unless otherwise provided in a tax treaty, the removal of economic double taxation is a task which remains the responsibility of the national legislation. The tax treaty between Finland and Belgium does not contain provisions on the removal of economic double taxation. The actual decision in that case was that that the French CFC regime was in conflict with and was overridden by the relevant tax treaty. However, on closer analysis, the tax treaty concerned contained, apart from an OECD Model art 7 provision, another provision (art 25(A)(1)), which expressly exempted from the relevant French tax "income ... where such income is liable to taxation in Switzerland". Against that background, where the treaty itself authorised a focus on income per se, rather than enterprise, the seeming incongruence of result with that in Re A Oyi Abp is explicable. There is no equivalent of art 25(A)(1) of the Franco-Swiss Double Taxation Agreement in the NZ Double Taxation Agreement. Assistance in the resolution of any doubt about the focus of art 7, cl 1 is gained by having regard to the commentary concerning the OECD Model. I refer to the commentary as published in OECD Model Tax Convention on Income and Capital, Condensed Version - 2008 and Key Tax Features of Member countries 2008 published by IBFD (Copyright as to the Convention, OECD and as to the Key Features, IBFD "OECD Commentary"). Article 7, cl 1 of the NZ Double Taxation Agreement replicates art 7, cl 1 of the OECD Model Convention.


case_text: constraint on the width of the powers which the Court may now exercise under s 14ZZP of the TAA must be the nature and extent of the "matter" in respect of which the Court is invested with Federal jurisdiction. In respect of a taxation appeal that investment of jurisdiction is implicit in the conferring, pursuant to s 14ZZ of the TAA, on a person dissatisfied with the Commissioner's objection decision of a right of appeal to this Court against that decision as an alternative to applying to the Administrative Appeals Tribunal for the review of that decision. Since 1986, it has been the correctness of the decision on the objection against the assessment which is, in terms of the formulation of "matter" in Re Judiciary and Navigation Acts [1921] HCA 20 ; (1921) 29 CLR 257 at 265, "the subject matter for determination" and the source of the "immediate right, duty or liability to be established by the determination of the Court". The Commissioner's obligation in respect of an objection is, materially, within the required period, to decide whether to: What s 14ZY does not put forward as an alternative for the Commissioner in deciding the objection is the increasing of the assessment which is the subject of the objection. That being so, it would be seem an odd result if the subject matter for determination on appeal included whether the Commissioner should not only have disallowed the objection but also whether he should have increased it. In respect of the 2001 to 2004 income years, s 170(7) of the ITAA 1936 then provided: (7) Nothing contained in this section shall prevent the amendment of any assessment in order to give effect to the decision upon any appeal or review, or its amendment by way of reduction in any particular in pursuance of an objection made by the taxpayer or pending any appeal or review. [Emphasis added] Apart from the express reference to reduction, the absence of any reference to "increase" will be noted.


case_text: are passages in a decision of the French Conseil d'État in Re Société Schneider Electric (2002) 4 ITLR 1077 which, read in isolation, might be thought to support an opposite conclusion in relation to the immateriality of economic consequences when considering whether a national CFC regime was in conflict with Article 7 of an OECD model treaty with Switzerland. For example, in referring to Article 7 of the Franco-Swiss double taxation agreement, the Conseil d'État opined (at 1108): In the absence of any factor requiring a different interpretation, the 'profits' to which art 7 of the convention refers are those determined according to the rules established by the [French General Tax Code]. It follows that the court below did not make any error in deciding that there is an identity in nature between the business profits (bénéfices) of the Paramer company, the taxation of which is attributed to Switzerland by art 7(1) of the Franco-Swiss tax treaty, and the profitable results (résultats beneficiaries) of the Paramer company which are taxed in France in the name of the Schneider company on the basis of the [CFC regime in the French General Tax Code].


case_text: Russell's work as an accountant and his ambitions for his premises have given rise both to income tax and to goods and services tax controversies. These have come to manifest themselves in appeals under Part IVC of the Taxation Administration Act 1953 (Cth) (TAA). In an interlocutory judgement delivered last year I concluded that it was both lawfully possible for him to join his appeals in the one application and that the overlap in the underlying facts was such that it was in the interests of justice that his income tax and goods and services tax (GST) appeals be heard together: Russell v Commissioner of Taxation [2008] FCA 343 ; (2008) 168 FCR 330. Mr Russell appeared on his own behalf on the hearing of the appeals whereas the respondent Commissioner of Taxation (the Commissioner) was represented by senior and junior counsel. It is no reflection on counsel, who provided valuable assistance, to observe that both in oral and written submissions Mr Russell argued his case with marked and memorable skill. This included the ability, not always found in litigants in person, for the most part to distinguish between his distinct roles as advocate and as witness. While I respect his skill and ability, it does not, as will be seen, follow that I accept all of his evidence. The taxation assessments, including the related assessments of penalty, each of which was affirmed upon objection by the Commissioner and which underpin the respective income tax and GST appeals are as follows. Income Tax Assessments


case_title: Saffron v Commissioner of Taxation (1994) 94 ATC 4049

case_text: v Commissioner of Taxation (1994) 94 ATC 4049 (Saffron's Case) is a case which preceded the ANZ Savings Bank Case but which was decided after the 1986 amendments. Saffron's Case was an appeal from the Administrative Appeals Tribunal, not an appeal in the original jurisdiction against an objection decision. Nonetheless, in his reasons for judgement, Davies J (at 4050-4051) made the following observations of a generic nature as to the role of either this Court or the Tribunal when seized with a challenge to (termed by him a review of) an objection decision: The review authority, the Court or the Tribunal, must come to its own decision on the facts and the issues. Walsh J said in Krew's case at 4216:- "I have a duty to reach my own conclusions on the questions of fact which have to be decided and to give effect to those conclusions. .. I must make my own decisions as to the facts." Although the taxpayer may be untruthful and a tax evader, that factor, of itself, is no reason not to undertake a calculation of income tax as contemplated by the Act, if such a calculation can be made. As Walsh J said in Krew's case at 4219, "A witness upon whose word one cannot rely may yet give evidence which is true in part." In that case, although Walsh J held that he could not accept the appellant himself as a reliable witness, he nevertheless found that several of the facts alleged by the taxpayer were established as a matter of probability and accordingly that four of the amended assessments before the Court should be set aside. Moreover, in the calculation of the taxable incomes of years past, exact proof may not be available. As Burchett J said in Ma v Commissioner of Taxation (1992) 92 ATC 4373 at 4379:- '... the making of estimates upon Inexact evidence, which IS so much a feature of both judicial and administrative decision-making, cannot be uniquely excluded from appeals against betterment assessments.' If, despite the general untruthfulness of a witness and the lack of records, the Court or the Tribunal nevertheless feels satisfied, as a matter of probability, as to the existence of a relevant fact or factor, effect must be given to that conclusion. Though these observations predate by some months those made later in that year by the High Court in the ANZ Savings Bank Case , they draw upon the same cases which the High Court regarded as authoritative and are not inconsistent with the High Court's own observations. However, though the observation made by Davies J that "effect must be given to that conclusion" is no less generic than his Honour's other observations, it is necessary to recall that he was not called upon in that case expressly to decide whether it was within the Court's power to set aside the objection decision so as to increase the amount of an appellant taxpayer's taxable income. The other two judges constituting the Full Court in Saffron's Case , Gummow and Lee JJ, did not find it necessary to make such generic observations.


case_title: Thiel v Commissioner of Taxation [1990] HCA 37 ; (1990) 171 CLR 338


case_title: Thomas v FCT (1972) 46 ALJR 397

case_text: its very nature, a forestry operation looks to the longer term for its returns. I remind myself, too, that the embarking upon plantings corresponded with a drought in the region of unprecedented severity. That phenomenon and the as yet experimental quality of suitable plantation tree selection for the region serves to explain the appearance of the plantation. Further, as Thomas v FCT (1972) 46 ALJR 397 (Thomas' Case) reminds, a man may carry on business if only in a small and, as Mr McKenzie nicely put it, "hickledee pickledee" way. It is possible to see, having regard to Mr Russell's costings, how the plantings might have been regarded as being able to be turned to a profit. I did not regard these costings as but a recent invention on the part of Mr Russell. Taking all of these factors into account, I am satisfied that the partnership did over the period up to 23 February 2004 carry on an enterprise of forestry operations. It did so in an innovative, perhaps also idiosyncratic, way but with a view to profit. It is not for the Commissioner to limit the entrepreneurial spirit. It follows from this that the partnership was entitled to claim input tax credits in respect of that enterprise. The last enterprise allegedly conducted by the partnership is that of a naturist retreat. Mr Russell put forward in evidence a business plan which he said he prepared in either late 2001 or early 2002 in respect of the enterprise. It is entitled "Catherine's Sarina Nudist Retreat". The plan as detailed in that document is as follows: Catherine's Sarina Naturist Retreat The Plan To develop a high standard retreat for nudists: (a) day visitors from the greter Mackay region (b) tourists (c) the annual migration of grey-haired gypsys To purchase a situated property (now located) not too far from shopping facilities which is private or which can be made private To develop the property to suit a nudist retreat. This will involved: (a) STAGE ONE Removal of all internal fencing Installation of a spa pool Construction of inground free-form swimming pool Toilets & showers facilities Covered BBQ area with gas BBQ Planting of farm forestry tees as per farm forestry plan (b) STAGE TWO Apply to council for consent Slabs for caravan sites to be poured & power boxes connected Purchase & renovates 3 non-working refers Gateway to be rebuilt & installation of electronic gate Lining of shed & purchase of 8X4 pool table [sic] Of the development activities described in this "plan", only those set out in Stage 1 have been undertaken. Mr Russell stated that he had deferred the undertaking of "Stage 2" activities as a result of his separation from his wife and because of unfinancial uncertainties introduced by the taxation investigation and subsequent assessments which remained under challenged.


case_outcome: distinguished

case_text: Before the Federal Magistrates Court the appellant claimed that the Tribunal had failed to consider particular aspects of his claims or his claims at all, had failed to give him adequate particulars of the independent information (although there was none), had failed to provide a rational foundation for its decision, and had failed to provide him with an adequate opportunity to respond to the substance of the information. The appellant filed no written submissions before the Federal Magistrate and, unrepresented, made no oral submissions in support of his application. Nevertheless, the learned Federal Magistrate burdened himself with some pages of detailed consideration of what might possibly have existed to found any of the generalised and, as counsel for the Minister describes them, formulaic claims that were asserted in the documentation before his Honour. Further, his Honour said (at [22]): 'As the applicant is self-represented, this places an obligation on this Court to independently consider whether any argument based on the material could have been made out: Yo Han Chung v University of Sydney and Ors [2002] FCA 186. I am satisfied that none of the grounds identified in either the applicant's original application or his amended application can be sustained. To satisfy this obligation, I have read all of the material in the Court Book and reconsidered the Tribunal decision. It is not apparent that there are any other grounds of review that exist to suggest that the Tribunal made a jurisdictional error in its decision-making process.' 4 Yo Han Chung v University of Sydney & Ors [2002] FCA 186 was a case involving a complaint of discrimination because of race and disability by a man of Korean origin who had suffered from a depression illness and anxiety disorder. Spender J (at [34]) noted that Driver FM had said: 'I accept that there is an obligation upon me to satisfy myself that there is no arguable case to be put forward by Mr Chung in these proceedings before I accede to the application to dismiss the proceedings, and that I should in that consideration not limit myself to the arguments put by Mr Chung but independently consider whether an arguable case based on the material could be made out.' However, Chung's case was before Driver FM on an application by the respondent to strike out the proceedings as hopeless, and his Honour was at pains to emphasise the high barriers to success for a respondent with such an application. There is no obligation on a court, that I am aware of, independently to consider for itself whether a self-represented litigant might, despite the inadequacies of presentation of his or her position, have a case for the court's intervention. A strike-out application may stand in a special condition where a self-represented applicant is involved, but on an ordinary hearing it is for an applicant, self-represented or not, to make out his or her case. 5 In refugee cases it has become common for members of this Court, and of the Federal Magistrates Court, to run their eye over the materials lest, when so much might be at stake, an unrepresented applicant might either fail altogether to see an obviously arguable ground for the Court's intervention or, as Mr Johnson aptly put it, by the scatter gun approach commonly employed, aim at everything but the right point. In so doing, members of both courts act from a degree of charity and concern that Australia should not unlawfully deal with an asylum seeker, but there is no obligation on the members of those courts, in my opinion, to do so. The present is an instance where the appellant passed up an opportunity, if he had anything truthful and additional to add to what he already put before the Tribunal, to do so. He further passed up the opportunity to profit from the legal advice which, in the charity of the Australian people, he had been given. 6 I am not critical of the learned Federal Magistrate for considering the matter with the extreme care with which he did. I would merely wish to lighten his load in future. There is no need in such a case to deal with more than the bare essentials, and I do not intend to engage in similar supererogation. After some coaxing to say anything at all that he might wish to say here, the appellant volunteered, correctly, that the learned Federal Magistrate had carefully examined his case. He simply asked that I would reconsider the matter all over again.


case_text: In an appropriate case it may well be permissible to tender evidence on review. However, whether it is an appropriate case will depend upon the grounds of review and the circumstances of the case. I refer to the judgment of Weinberg J in Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 ; (2005) 148 FCR 446 where at 564, [454] he stated: I accept that, ordinarily, material not before the decision-maker at the time of the making of the decision will not be admissible in proceedings for judicial review.


case_text: It is clear from the Tribunal's reasons for its decision that it found there was insufficient information to enable it to reach a level of satisfaction as to Australia's obligations to the appellant. The word 'information' in s 424A(1) imports at least some positive factual material and does not apply where the Tribunal has identified a lack of information: see SZBCS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1457 per Bennett J at [23]; MZWPK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1256 per Heerey J at [14]; and Tran v The Minister for Immigration & Multicultural Affairs [2002] FCA 1522 per Kenny J at [25]-[26]. Therefore, it is clear that s 424A(1) was not enlivened at the time it invited the appellant to the hearing and the Tribunal was not required to give the appellant notice pursuant to that section.


case_title: SZBCS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1457


case_text: His Honour dismissed that claim and stated at [22]-[23] that he considered that no obligation arose under that section given that at the time that the Tribunal notified the appellant that it was unable to determine the review in his favour on the material before it, the Tribunal had not reached any view on whether the adequacy of the material submitted to the delegate would be part of the reason for its decision. In support of his reasoning, his Honour indicated that he was bound to follow the decision of Heerey J in SZCJD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 609 at [38] - [43] . 15 The reason for his Honour's focus upon whether the obligation under s 424A arose at the time that the Tribunal notified the appellant that it was unable to determine the review in his favour on the material before it was that this was how the appellant particularised the breach in his grounds in the amended application. His Honour did not go on to consider whether there was a breach of s 424A at any other time.


case_outcome: affirmed

case_title: SZICS v Minister for Immigration & Multicultural Affairs [2006] FMCA 1180


case_title: Tran v Minister for Immigration & Multicultural Affairs [2002] FCA 1522


case_text: These arguments are misconceived. Firstly, if the NT Registrar or the Delegate were "functus officio" he or she could not have considered the Application at all. Of course there was a statutory duty to do so. Secondly, these submissions fail to take account of that statutory duty. The Delegate was obliged to act in accordance with law, not in accordance with his own previous decision. In Attorney-General (New South Wales) v Quin [1990] HCA 21 ; (1989-1990) 170 CLR 1 at 17-19, Mason CJ said: 'I am unable to perceive how a representation made or an impression created by the Executive can preclude the Crown or the Executive from adopting a new policy, or acting in accordance with such a policy, in relation to the appointment of magistrates, so long as the new policy is one that falls within the ambit of the relevant duty or discretion, as in this case the new policy unquestionably does. The Executive cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion to be performed or exercised in the public interest, by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or exercise of the power. ... Accordingly, it has been said that "a public authority ... cannot be estopped from doing its public duty", ... .' 9 At 35, Brennan J said: 'The question can be put quite starkly: when an administrative power is conferred by the legislature on the executive and its lawful exercise is apt to disappoint the expectations of an individual, what is the jurisdiction of the courts to protect that individual's legitimate expectations against adverse exercise of the power? I have no doubt that the answer is: none. Judicial review provides no remedies to protect interests, falling short of enforceable rights, which are apt to be affected by the lawful exercise of executive or administrative power. If it were otherwise, the courts would be asserting a jurisdiction, in protection of individual interests, to override the law by which a power to affect those interests is conferred on the repository.'


case_text: The Delegate referred to the reasons of Gleeson CJ, Gummow and Hayne JJ in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 ; (2002) 214 CLR 422 especially at [42] to [56] and [79] to [89]. It is appropriate that I summarise certain aspects of their Honours' reasons. Most of what follows appears at [32] to [89] of those reasons. The following propositions emerge: • "Native Title" means certain rights and interests of indigenous peoples. • Those rights and interests may be communal, group or individual rights and interests, but they must be in relation to land or waters. • The rights and interests must: • be possessed under the traditional laws acknowledged, and the traditional customs observed, by the peoples concerned; • have the characteristic that by such laws and customs the people in question have "a connection with" the land or waters; and • be "recognised" by the common law of Australia. • Crown sovereignty over Australia cannot be challenged in an Australian municipal court. • Upon acquisition of sovereignty over a particular part of Australia, the Crown acquired a radical title to the land in that part, but Native Title survived such acquisition. • The surviving rights and interests are in relation to land or waters. • Those rights and interests owed their origin to a normative system other than the legal system of the new sovereign power, namely traditional laws and customs of the indigenous people concerned. • In seeking to identify surviving rights and interests in relation to land or waters, the laws or customs in which such rights or interests originate must be laws or customs having a normative content, being derived from a body of norms or normative system the body of norms or normative system that existed before sovereignty. • Rights and interests comprising Native Title may not, and often will not, correspond with rights and interests in land familiar to 'the Anglo-Australian property lawyer' . • Rights and interests under traditional laws and customs will often reflect a different conception of "property" or "belonging". • The relevant laws and customs must be rules having normative content. Without that quality there may be observable patterns of behaviour but not rights or interests in relation to land or waters. • Upon the assertion of Crown sovereignty the normative or law-making system which then existed could no longer validly create new rights, duties or interests. • Rights or interests created after sovereignty, owing their origins and continued existence only to a normative system other than that of the new sovereign power, will not be given effect. • The rights and interests in land or waters which the new sovereign order recognized included the rules of traditional law and custom dealing with transmission of interests in land or waters. • Account may be taken of alterations to, or developments in, traditional laws and customs occurring after sovereignty, at least to the extent that such changes and developments were contemplated by traditional laws and customs. • Because there can be no parallel law-making system after the assertion of sovereignty, the only rights or interests originating otherwise than in the new sovereign order, which will be recognized after the assertion of sovereignty, are those originating in pre-sovereignty law and custom. • The word "traditional" describes a means of transmission of laws or customs. A traditional law or custom is one which has been passed from generation to generation of a society, usually by word of mouth and common practice. In the context of the Act the word "traditional" conveys an understanding of the age of the traditions, namely that their origins lie in the normative rules of Aboriginal and Torres Strait Islander societies which existed before the assertion of British sovereignty. Only these normative rules are traditional laws and customs. • The normative system under which the relevant rights and interests are possessed must have enjoyed a continuous existence and vitality since the assertion of sovereignty. If the system has not existed throughout that period, the rights and interests which owe their existence to that system will have ceased to exist. Any later attempt to revive them will not reconstitute traditional laws and customs from which rights and interests within the definition of "Native Title" may arise. • Laws and customs arise out of, and go to define, a particular society, that is a body of persons united in, and by, its acknowledgement and observance of a body of laws and customs. • To speak of rights and interests possessed under an identified body of laws and customs is to speak of rights and interests which are the creatures of the laws and customs of a particular society existing as a group which acknowledges and observes those laws and customs. • If that society ceases to exist as a group which acknowledges and observes those laws and customs, those laws and customs cease to have continued existence and vitality. • The passing on of laws and customs from individual to individual may not be sufficient to render them traditional laws and customs if the society itself has ceased to exist. If the society ceases to exist, the rights and interests in land to which laws and customs gave rise also cease to exist. • If such laws and customs are adopted by some new society they then owe their new life to that later society and are laws and customs acknowledged by, and observed by, that later society. • The relevant rule of recognition of a traditional law or custom is a rule of recognition found in the social structure of the relevant indigenous society as those structures existed at sovereignty. • Any analysis of the traditional laws and customs of a society, having no well-developed written language, by using analytical tools developed in connection with very different organized societies, is fraught with difficulty. However that difficulty does not lead to denial of the importance of two facts. Firstly, the laws and customs and the society which acknowledges and observes them are inextricably linked. Secondly, the new sovereign order recognized only those Native Title rights and interests which existed at the time of change in sovereignty. • It is therefore necessary to enquire as to the relationship between the laws and customs now acknowledged and observed in a relevant indigenous society, and those which were acknowledged and observed before sovereignty, considering whether the laws and customs can be said to be the laws and customs of a society whose laws and customs are properly described as traditional laws and customs. • The word "traditional" means not only that which is transferred by word of mouth from generation to generation. It also reflects the fundamental nature of the Native Title rights and interests with which the Act deals. They are rights and interests rooted in pre-sovereignty traditional laws and customs. • In many cases the claimants will invite the Court to infer the content of traditional laws and customs at times earlier than those described in the available evidence. • Pursuant to s 82(1) the Court is bound by the rules of evidence except to the extent that it otherwise orders. • Where the laws or customs now said to be acknowledged and observed have been adapted in response to the impact of European settlement, it may be especially difficult to demonstrate the content of pre-sovereignty traditional laws and customs. • However demonstrated change to, or adaptation of, traditional law or custom, or some interruption of enjoyment or exercise of Native Title rights or interests, since the assertion of sovereignty, will not necessarily be fatal to a claim. The key question is whether the law and custom can be seen to be traditional law and traditional custom. • Exercise of Native Title rights and interests may constitute powerful evidence of the existence of such rights and interests and their content. • Evidence of non-exercise does not necessarily answer the relevant statutory question. The question is as to possession of the rights and interests, not their exercise. • In the definition of Native Title in subs 223(1) of the Act, the focus is upon rights and interests in relation to land or waters, which rights and interests are currently possessed under traditional laws and customs by claimants who, pursuant to such laws and customs, presently have a connection with the land or waters in question. • Those rights and interests must be possessed under traditional laws and customs observed by the peoples in question. The connection between the peoples in question and the land and waters must be by clear traditional laws and customs. The word "traditional" refers to a body of laws and customs acknowledged and observed by the ancestors of the claimants at the time of sovereignty. • Acknowledgement and observance of those laws and customs must have continued, substantially uninterrupted, since sovereignty. • In the last proposition the word "substantially" is of some importance. Proof of continuous acknowledgement and observance over the many years which have elapsed since sovereignty may be difficult. The qualification recognizes that European settlement has had the most profound effect on Aboriginal societies and that it is therefore inevitable that the structures and practices of those societies and their members will have undergone great change. Nonetheless it is necessary to demonstrate that the normative system out of which the claimed rights and interests arise is the normative system of the society which came under a new sovereign order when the British Crown asserted sovereignty. To that end it must be shown that the society, under whose laws and customs the Native Title rights and interests are said to be possessed, has continued to exist throughout that period as a body united by its acknowledgement and observance of the laws and customs. 27 The section required that the Delegate be satisfied either that: • the persons in the Native Title claim group were named in the application; or • the persons in that group were described sufficiently clearly so that it could be ascertained whether any particular person was in the group. 28 In the Application the claim group was identified as follows: 'The criteria for membership of the Gudjala native title claim group is in accordance with traditional laws acknowledged and customs observed by the Gudjala people who are traditionally connected to the area described in Schedule B ("application area") through: (1) physical, spiritual and religious association; and (2) genealogical descent; and (3) processes of succession; and who have communal native title in the application area from which rights and interests derive. The Gudjala native title claim group is comprised of all persons descended from the following ancestors: • Alice Anning (White Huen) of Bluff Downs; • Cissy McGregor; • Maggie Thomson; • Topsy Hann.' 63 The decision in Yorta Yorta (supra) demonstrates that the requirement that the laws and customs be traditional means that they must have their source in a pre-sovereignty society and have been observed since that time by a continuing society. The applicant submits that this does not lead to the conclusion that the apical ancestors must have comprised a society. I accept that submission. I will say a little more about it at a later stage. 64 The Delegate concluded that "effective sovereignty" occurred at about 1850-1860. I infer that he meant that European occupation occurred at about that time. That conclusion was a step in the process of identifying established laws and customs as at the time of sovereignty. No doubt the applicant would argue that the position in 1850-1860 was probably much as it was in 1788. The Delegate noted that there had been massacres of Aboriginal people in the area subsequent to 1850-1860 so that the Gudjala People 'were subject to at least dislocation in, or disposition of, parts of their country.' The Delegate then observed that: 'There is virtually no factual base provided from which could be established the existence of a normative society at that time, nor subject to the next paragraph, what the content of the laws and customs now asserted were prior to or even after sovereignty. Nor is there any material from which I could safely draw inferences about their content or the society that existed at sovereignty.' 65 Broadly speaking, the task is to identify the existence in 1850-1860 of a society of people, living according to identifiable laws and customs, having a normative content. I take that to mean that such laws and customs must establish normal standards of conduct or, perhaps, be prescriptive of such standards. 83 The Delegate elaborated upon this conclusion, referring to his view that the claim group appeared to be 'one of recent creation' , and thus more likely to fall into the category described in Yorta Yorta at [53] as a 'later society' . 84 The Delegate considered that 'the whole tenor' of the material in Mr Hagan's report suggested that he was describing a process whereby people, now living, have sought to find contemporary ways in which to assert claims to land. He also refers to other evidence from Ms Glass and to the fact that many members of the claim group do not now live on or near the country in question. It is not necessary that I consider these matters. 85 Subsection 223(1) provides: 'The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal Peoples or Torres Strait Islanders; and (b) the Aboriginal Peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognized by the common law of Australia.' 86 As observed above, the High Court said in Yorta Yorta at [86]: 'Yet again, however, it is important to bear steadily in mind that the rights and interests which are said now to be possessed must nonetheless be rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by the peoples in question. Further, the connection which the peoples concerned have with the land or waters must be shown to be a connection by their traditional laws and customs. For the reasons given earlier, "traditional" in this context must be understood to refer to the body of law and customs acknowledged and observed by the ancestors of the claimants at the time of sovereignty.' 87 It follows from my previous reasons that this requirement has not been satisfied. The Delegate also reached that conclusion. 88 Subsection 190B(7) provides: 'The Registrar must be satisfied that at least one member of the native title claim group: (a) currently has or previously had a traditional physical connection with any part of the land or waters covered by the application; or (b) previously had and would reasonably have been expected currently to have a traditional physical connection with any part of the land or waters but for things done (other than the creation of an interest in relation to land or waters) by: (i) the Crown in any capacity; or (ii) a statutory authority of the Crown in any capacity; or (iii) any holder of a lease over any of the land or waters, or any person acting on behalf of such a holder of a lease.' 89 The Delegate considered that the reference to 'traditional physical connection' should be taken as denoting, by use of the word "traditional", that the relevant connection was in accordance with laws and customs of the group having their origin in pre-contact society. This seems to be consistent with the approach taken in Yorta Yorta . As I can see no basis for inferring that there was a society of the relevant kind, having a normative system of laws and customs, as at the date of European settlement, the Application does not satisfy the requirements of subs 190B(7). 90 In those circumstances I conclude that the claim should not have been accepted for registration. The application for review of the Delegate's decision should be dismissed. I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 7 August 2007 Counsel for the Applicants: Ms S Phillips Solicitor for the Applicants: Central Queensland Land Council Counsel for the First Respondent: Mr G J Gibson QC Solicitor for the First Respondent: McCullough Robertson Counsel for the Second Respondent: The Second Respondent did not appear Date of Hearing: 12 March 2007 Date of Judgment: 7 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1167.html


case_text: In his preliminary assessment of the Application, the Delegate referred to apparent inconsistencies between the claim group description and material in earlier applications 'involving the same or substantially the same group' . The applicant submits that his final decision was infected by error in that the adequacy of the description of the claim group must be assessed by reference only to the application. However the Delegate clearly demonstrated in his reasons that he understood that s 190B(3) addressed only the content of the Application. In support of this proposition he referred to the decision of Mansfield J in Northern Territory of Australia v Doepel [2003] FCA 1384 at [51] . The reasons make no reference to extrinsic material. 31 The Delegate accepted that the Application complied with subs 61(4) but found non-compliance with subs 190B(3). The two provisions seem to establish similar criteria. The first prescribes the content of an application. The second identifies the matters as to which the Delegate had to be satisfied if the Application were to be accepted for registration. The applicant submits that the Delegate erred in finding compliance with one provision and non-compliance with the other. The Act itself draws a distinction between the two provisions. Subsection 190A(6) asserts that s 190B 'deals mainly with the merits of the claim' , and that s 190C 'deals with procedural and other matters' . This suggests that when, pursuant to s 190B(3), the Delegate considered whether the claim group was described sufficiently to permit a decision as to whether a particular person was a member thereof, he or she was dealing with 'the merits' as that term is used in s 190A(6). When, pursuant to s 190C(2), he considered whether the Application contained all the details and other information required by ss 61 and 62, he was dealing with a matter of procedure. In other words, the distinction is not between subs 61(4) and subs 190A(3) but between ss 190B(3) and 190C(2) as they apply to s 61(4). 32 In considering s 61(4) pursuant to s 190C(2) the Delegate considered whether there appeared to be a description which satisfied the requirements of the Act, without ascertaining whether or not it operated effectively to describe the claim group. He undertook the latter exercise pursuant to s 190B(3). That seems to be the only way in which he could have given effect to the two requirements. It may not matter. In order to be entitled to registration it was necessary that the Application comply with the quite precise test prescribed in s 190B(3). Any apparent confusion in the Delegate's reasons simply reflected the rather ambiguous terms of the Act.


case_text: On the hearing of an application to the Federal Court by way of an appeal under s 56 of the Act from the delegate's decision, the Court may do any one or more of the following, admit evidence orally or on affidavit or otherwise; permit the examination and cross-examination of witnesses, including witnesses who gave evidence before the Registrar; order an issue of fact to be tried as it directs; affirm, reverse or vary the Registrar's decision or direction; give any judgment, or make any order, that in all the circumstances it thinks fit; order a party to pay costs to another party (s 197 of the Act). The appeal proceeding is a hearing conducted "afresh" or de novo on material properly placed before the Court ( Rowntree plc v Rollbits Pty Ltd (1986-1988) 10 IPR 539 per Needham J at 545; Registrar of Trade Marks v Woolworths Ltd [1999] FCA 1020 ; (1999) 93 FCR 365 at 377; [1999] FCA 1020 ; 45 IPR 411 422-3 per French J; Pioneer Electric Corporation & Anor v Registrar of Trade Marks [1977] HCA 56 ; (1977) 17 ALR 43 per Aickin J at 46; Blount Inc. v Registrar of Trade Marks [1998] FCA 440 ; (1998) 83 FCR 50 at 59 per Branson J; Kowa Company Ltd v NV Organon [2005] FCA 1282 ; (2006) 223 ALR 27 per Lander J at [7]; Pfizer Products Inc. v Karam [2006] FCA 1663 ; (2007) 237 ALR 787 per Gyles J at [5]; and Scotch Whiskey Association v De Witt (2008) 75 IPR 280 per Jessop J at [18]). Although the appeal is conducted as a de novo hearing, the scope of the controversy to be resolved in the appeal is determined by the issues framed by the parties. Order 58, r 5(2) requires a party initiating an appeal to identify each ground relied upon to support the orders sought and particulars of each ground. Similarly, by Order 58, r 5A(2) a cross-appellant must state and thus frame the specific grounds relied upon in support of the orders the cross-appellant seeks. In that sense, an appeal from the Registrar's decision is not simply at large. In this case, NVS seeks to vary the decision by agitating the merits of the matters raised by s 44 of the Act. BAT seeks to agitate all of the matters on which it was unsuccessful.


case_title: Registrar of Trade Marks v Woolworths Ltd [1999] FCA 1020 ; (1999) 93 FCR 365


case_title: Pioneer Electric Corporation & Anor v Registrar of Trade Marks (1977) 17 ALR 43


case_title: Blount Inc. v Registrar of Trade Marks (1998) 83 FCR 50


case_title: Kowa Company Ltd v NV Organon (2006) 223 ALR 27


case_title: Pfizer Products Inc. v Karam (2007) 237 ALR 787


case_title: Scotch Whiskey Association v De Witt (2008) 75 IPR 280


case_text: BAT relies upon the broad unfettered discretion conferred upon the Court by s 56 of the Federal Court of Australia Act 1976 to order an applicant to give security for the payment of costs that may be awarded against that party. The jurisdiction is not delimited by Order 28, r 3 ( Bell Wholesale Co. Ltd v Gates Export Corporation (No. 2) (1984) 2 FCR 1 ; Chapman v Luminis Pty Ltd [2002] FCA 496 ; James v Australia & New Zealand Banking Group Ltd (No. 1) (1985) 9 FCR 442). In exercising the discretion under s 56 , the practice in Australia for a very long time has been that a party who is not ordinarily resident in this country and has no assets within the jurisdiction, is normally ordered to give security for costs. These two factors are regarded as circumstances of "great weight" in determining whether such an order should be made ( Chellaram & Co. Ltd v China Ocean Shipping Co. [1991] HCA 36 ; (1991) 102 ALR 321 ; (1991) 65 ALJR 642). The qualification upon the weight to be attributed to these factors was put by McHugh J in Chellaram at p 323 (ALR) and at p 643 (ALJR) in these terms, "... unless that party can point to other circumstances which overcome the weight of the circumstance that that person is resident out of and has no assets within the jurisdiction". These well established principles have been applied more recently in Logue v Hansen Technologies Ltd [2003] FCA 81 ; (2003) 125 FCR 590 at [38] and [39]; Tan Kah Hock v AWAP SGT 26 Investment Ltd [2008] FCA 540 [7] and [8]; Cheng XI Shipyard v The Ship "Falcon Trident" [2006] FCA 759 at [9] .


case_title: Chapman v Luminis Pty Ltd [2002] FCA 496


case_title: James v Australia & New Zealand Banking Group Ltd (No. 1) (1985) 9 FCR 442


case_title: Chellaram & Co. Ltd v China Ocean Shipping Co. (1991) 102 ALR 321

case_text: BAT relies upon the broad unfettered discretion conferred upon the Court by s 56 of the Federal Court of Australia Act 1976 to order an applicant to give security for the payment of costs that may be awarded against that party. The jurisdiction is not delimited by Order 28, r 3 ( Bell Wholesale Co. Ltd v Gates Export Corporation (No. 2) (1984) 2 FCR 1 ; Chapman v Luminis Pty Ltd [2002] FCA 496 ; James v Australia & New Zealand Banking Group Ltd (No. 1) (1985) 9 FCR 442). In exercising the discretion under s 56 , the practice in Australia for a very long time has been that a party who is not ordinarily resident in this country and has no assets within the jurisdiction, is normally ordered to give security for costs. These two factors are regarded as circumstances of "great weight" in determining whether such an order should be made ( Chellaram & Co. Ltd v China Ocean Shipping Co. [1991] HCA 36 ; (1991) 102 ALR 321 ; (1991) 65 ALJR 642). The qualification upon the weight to be attributed to these factors was put by McHugh J in Chellaram at p 323 (ALR) and at p 643 (ALJR) in these terms, "... unless that party can point to other circumstances which overcome the weight of the circumstance that that person is resident out of and has no assets within the jurisdiction". These well established principles have been applied more recently in Logue v Hansen Technologies Ltd [2003] FCA 81 ; (2003) 125 FCR 590 at [38] and [39]; Tan Kah Hock v AWAP SGT 26 Investment Ltd [2008] FCA 540 [7] and [8]; Cheng XI Shipyard v The Ship "Falcon Trident" [2006] FCA 759 at [9] . 21 Accordingly, I would not regard the presence of registered trade marks within the jurisdiction in NVS, at least in this case on the evidence before me, as assets within the jurisdiction against which an order for costs might easily be enforced. Moreover, I do not regard the international disputation which has taken place as an "other factor" in terms of McHugh J's qualification in Chellaram which overcomes the circumstance that the applicant is resident out of the jurisdiction and has no readily isolated assets of any utility within the jurisdiction, easily converted to a fund to satisfy a costs order. 22 However, the real difficulty is that BAT's evidence upon which an informed decision might be made by the Court as to any security to be ordered, is scant. The only evidence put on by BAT in the application is the statement by Mr Stern set out at [11]. The further difficulty is this. NVS has commenced a proceeding by filing a Notice of Appeal which is confined to the question of whether s 44 of the Act prohibits registration of each mark on the footing that the mark is deceptively similar to BAT's mark identified by the Registrar's delegate. BAT has cross-appealed and puts in controversy all of the matters upon which it was unsuccessful and in respect of which it would seek to call evidence, including expert evidence of reputation and other consumer survey evidence. BAT estimates the party and party costs recoverable by BAT in the proceeding as $75,000 which necessarily assumes costs both in relation to the appeal and the cross-appeal. 23 NVS contends that in an appeal from a decision of the Registrar's delegate not to register an accepted trade mark, the opponent should be characterised as the aggressor and instigator of the controversy with the result that when an appeal is taken to the Federal Court from the delegate's decision, the opponent to registration should be equally regarded as the principle contradictor and aggressor in the proceeding. Thus, it is not appropriate to make any order for security for costs. However, says NVS, in a proceeding which is characterised by an appeal by NVS confined to the question it raises and a cross-appeal by the opponent in which a broader field of issues are agitated as part of the controversy, it is not appropriate to order security for costs of the proceeding at large. Any order for security for costs should be confined to responding to the matters put in issue by the appellant. NVS says that it is for BAT to isolate the steps to which it would be put in dealing with the appellant's contentions; identify the evidence it would need to call to do so; and identify the likely costs to be incurred associated with taking responsive steps.


case_title: Logue v Hansen Technologies Ltd (2003) 125 FCR 590


case_title: Tan Kah Hock v AWAP SGT 26 Investment Ltd [2008] FCA 540


case_title: Cheng XI Shipyard v The Ship "Falcon Trident" [2006] FCA 759


case_text: The purpose of ordering security for costs against a party ordinarily resident outside the jurisdiction is to ensure that a successful party will have "a fund available within the jurisdiction of this Court against which it can enforce the judgment for costs, so that the respondent does not bear the risk as to certainty of enforcement in the foreign country and as to the time and complexity of the action there which might be necessary to effect enforcement" ( Energy Drilling Inc. v Petroz NL (1989) ATPR 40 954 per Gummow J at 50, 422). The reference to a "fund" within the jurisdiction seems to suggest that a reference to "no assets within the jurisdiction" within the general principles is to be treated as a reference to no assets which are readily accessible to enforcement and satisfaction of the costs order. In Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40 972, Hill J identified a number of factors, adopted by Kenny J in Mijac Investments Pty Ltd v Graham [2008] FCA 1251 at [9] which inform the exercise of the discretion. They include the nature of the risk that NVS will not be able to satisfy a costs order if made; the nature of NVS's claim including its chances of success; whether an order for security would shut NVS out of pursuing its claim; whether any contended impecuniosity on the part of NVS arises from conduct the very subject of the proceeding; and any discretionary matters peculiar to the relevant case, such as delay.


case_title: Mijac Investments Pty Ltd v Graham [2008] FCA 1251


case_text: Tracey J usefully summarised the authorities as to the former s 298K in Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 , (2006) 160 IR 1 at [13] [22]. "Injury" is concerned with an adverse effect upon an existing legal right, or "compensable" injury. Prejudicial alteration of position goes beyond that concept. There are many examples in the cases. It is sufficient to refer to Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1 per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ at [37] and [38]; Community and Public Sector Union v Telstra Corp Ltd [2001] FCA 267 ; 107 FCR 93 at [17] [22]; Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] FCA 349 ; (2001) 112 FCR 232 ; and Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18 ; 157 FCR 329. 26 The decision in Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 ; (1999) 93 FCR 34 is a good illustration of where the dividing line might be drawn. Cases on the non-contravening side of the line include Burnie Port Corp Pty Ltd v Maritime Union of Australia [2000] FCA 1768 ; (2000) 104 FCR 440 and Australian Workers' Union v BHP Iron-Ore Pty Ltd [2001] FCA 3 ; 106 FCR 482. A case with some similarities to the present is National Union of Workers v Qenos Pty Ltd [2001] FCA 178 ; (2001) 108 FCR 90. It dealt with a situation where there was a surplus of employees for genuine business reasons. A "spill and fill" selection and retrenchment process was held not to be capable of giving rise to an injury to any particular employee in his or her employment and could not be said to have altered the position of any individual employee to his or her prejudice. (See also Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 , (2006) 160 IR 1 at [29] and [31].)


case_outcome: referred to

case_text: Early in the history of these provisions it was established that they could not be used to restrict genuine business decisions by an employer, notwithstanding that the objective of the provisions then was the protection of unions and collective action ( Connington v Municipality of Kogarah [1913] AR (NSW) 40 at 44; Grayndler v Broun [1928] AR (NSW) 46 at 49; Klanjscek v Silver (1961) 4 FLR 182 at 187; Moss v Fantil Pty Ltd t/as Central Coast Security Services (1994) 58 IR 118 at 127). The underlying principle is that a decision that may affect an employee or a class of employee does not discriminate against or victimise that employee or those employees if it is taken for a sound business reason. This principle has been applied in various situations in more recent times in considering a prohibited reason within the meaning of s 793 and similar provisions. Examples include Qenos Pty Ltd [2001] FCA 178 ; 108 FCR 90 at [119] [126]; Australian Collieries' Staff Association v BHP Coal Pty Ltd [2000] FCA 318 ; (2000) 99 FCR 137 , particularly at [66] [67]; CSL Australia Pty Ltd [2002] FCA 513 , 113 IR 326, particularly at [55] [60]; BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430 ; 102 FCR 97 at [48] ; and Geraldton Port Authority [1999] FCA 899 ; 93 FCR 34 , particularly at [294] [302].


case_text: A "before and after" test is usually applied to see whether there has been any injury to, or prejudicial alteration of, the position of the employee by reason of any act of the employer (eg per Evatt J in Blair v Australian Motor Industries Ltd (1982) 61 FLR 283 at 289, 3 IR 176; per Branson J in Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18 ; (2007) 157 FCR 329 at [127] ). Applying what had been said by the Full Court in an earlier interlocutory appeal ( BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430 ; (2000) 102 FCR 97 at [35] ), it was succinctly put by Kenny J in Australian Workers' Union v BHP Iron-Ore Pty Ltd [2001] FCA 3 ; (2001) 106 FCR 482 at [54] as follows: "Before s 298K(1) can apply, it must be possible to say of an employee that he or she is, individually speaking, in a worse situation after the employer's acts than before them; that the deterioration has been caused by those acts; and that the acts were intentional in the sense that the employer intended the deterioration to occur." The clarification of that approach by the Full Court in Community and Public Sector Union v Telstra Corp Ltd [2001] FCA 267 ; (2001) 107 FCR 93 at [21] does not detract from it for present purposes. The same questions must be asked. Here, there should be a negative answer to each limb. 25 Tracey J usefully summarised the authorities as to the former s 298K in Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 , (2006) 160 IR 1 at [13] [22]. "Injury" is concerned with an adverse effect upon an existing legal right, or "compensable" injury. Prejudicial alteration of position goes beyond that concept. There are many examples in the cases. It is sufficient to refer to Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1 per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ at [37] and [38]; Community and Public Sector Union v Telstra Corp Ltd [2001] FCA 267 ; 107 FCR 93 at [17] [22]; Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] FCA 349 ; (2001) 112 FCR 232 ; and Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18 ; 157 FCR 329. 26 The decision in Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 ; (1999) 93 FCR 34 is a good illustration of where the dividing line might be drawn. Cases on the non-contravening side of the line include Burnie Port Corp Pty Ltd v Maritime Union of Australia [2000] FCA 1768 ; (2000) 104 FCR 440 and Australian Workers' Union v BHP Iron-Ore Pty Ltd [2001] FCA 3 ; 106 FCR 482. A case with some similarities to the present is National Union of Workers v Qenos Pty Ltd [2001] FCA 178 ; (2001) 108 FCR 90. It dealt with a situation where there was a surplus of employees for genuine business reasons. A "spill and fill" selection and retrenchment process was held not to be capable of giving rise to an injury to any particular employee in his or her employment and could not be said to have altered the position of any individual employee to his or her prejudice. (See also Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 , (2006) 160 IR 1 at [29] and [31].) 33 So far as s 793(1)(i) is concerned, the affected employees were, or are, entitled to the benefit of the Certified Agreement in common with all production employees. There is no discrimination between employees in that respect. There is no suggestion that persons with the benefit of the Certified Agreement were being discriminated against as compared with people who did not have the benefit of that Agreement. The fact that the employer was, or may have been, advantaged by not dismissing particular employees because of the way in which cl 21.5 worked, is not pertinent to this statutory obligation. The content and effect of an agreement may not always be irrelevant for example, if the way a particular clause operates is related to some relevant form of discrimination. The decision of the Full Court in Greater Dandenong City Council [2001] FCA 349 ; 112 FCR 232 may provide an example of that, although it is a difficult decision as Branson J said in CSL Australia Pty Ltd [2002] FCA 513 , 113 IR 326 at [54] , it is not easy to derive a ratio decidendi. The decision in Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18 ; 157 FCR 329 may be another. In each case, the employer had work to be done by those employed pursuant to an industrial instrument. The proposed change meant that the work would be done by those who were willing to take alternative employment pursuant to different industrial instruments or perhaps no industrial instrument. That is not the case here.


case_text: A "before and after" test is usually applied to see whether there has been any injury to, or prejudicial alteration of, the position of the employee by reason of any act of the employer (eg per Evatt J in Blair v Australian Motor Industries Ltd (1982) 61 FLR 283 at 289, 3 IR 176; per Branson J in Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18 ; (2007) 157 FCR 329 at [127] ). Applying what had been said by the Full Court in an earlier interlocutory appeal ( BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430 ; (2000) 102 FCR 97 at [35] ), it was succinctly put by Kenny J in Australian Workers' Union v BHP Iron-Ore Pty Ltd [2001] FCA 3 ; (2001) 106 FCR 482 at [54] as follows: "Before s 298K(1) can apply, it must be possible to say of an employee that he or she is, individually speaking, in a worse situation after the employer's acts than before them; that the deterioration has been caused by those acts; and that the acts were intentional in the sense that the employer intended the deterioration to occur." The clarification of that approach by the Full Court in Community and Public Sector Union v Telstra Corp Ltd [2001] FCA 267 ; (2001) 107 FCR 93 at [21] does not detract from it for present purposes. The same questions must be asked. Here, there should be a negative answer to each limb. 35 Early in the history of these provisions it was established that they could not be used to restrict genuine business decisions by an employer, notwithstanding that the objective of the provisions then was the protection of unions and collective action ( Connington v Municipality of Kogarah [1913] AR (NSW) 40 at 44; Grayndler v Broun [1928] AR (NSW) 46 at 49; Klanjscek v Silver (1961) 4 FLR 182 at 187; Moss v Fantil Pty Ltd t/as Central Coast Security Services (1994) 58 IR 118 at 127). The underlying principle is that a decision that may affect an employee or a class of employee does not discriminate against or victimise that employee or those employees if it is taken for a sound business reason. This principle has been applied in various situations in more recent times in considering a prohibited reason within the meaning of s 793 and similar provisions. Examples include Qenos Pty Ltd [2001] FCA 178 ; 108 FCR 90 at [119] [126]; Australian Collieries' Staff Association v BHP Coal Pty Ltd [2000] FCA 318 ; (2000) 99 FCR 137 , particularly at [66] [67]; CSL Australia Pty Ltd [2002] FCA 513 , 113 IR 326, particularly at [55] [60]; BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430 ; 102 FCR 97 at [48] ; and Geraldton Port Authority [1999] FCA 899 ; 93 FCR 34 , particularly at [294] [302].


case_text: There is a respectable argument that an employee cannot be indefinitely denied work to do if work of an appropriate kind is available ( Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22 ; (2005) 221 CLR 539 , particularly per Callinan and Heydon JJ at [80]; Squires v Flight Stewards Assn of Australia (1982) 2 IR 155 at 164; Downe v Sydney West Area Health Service (No 2) [2008] NSWSC 159 at [410] [431]). No such appropriate work was available here.


case_text: A "before and after" test is usually applied to see whether there has been any injury to, or prejudicial alteration of, the position of the employee by reason of any act of the employer (eg per Evatt J in Blair v Australian Motor Industries Ltd (1982) 61 FLR 283 at 289, 3 IR 176; per Branson J in Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18 ; (2007) 157 FCR 329 at [127] ). Applying what had been said by the Full Court in an earlier interlocutory appeal ( BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430 ; (2000) 102 FCR 97 at [35] ), it was succinctly put by Kenny J in Australian Workers' Union v BHP Iron-Ore Pty Ltd [2001] FCA 3 ; (2001) 106 FCR 482 at [54] as follows: "Before s 298K(1) can apply, it must be possible to say of an employee that he or she is, individually speaking, in a worse situation after the employer's acts than before them; that the deterioration has been caused by those acts; and that the acts were intentional in the sense that the employer intended the deterioration to occur." The clarification of that approach by the Full Court in Community and Public Sector Union v Telstra Corp Ltd [2001] FCA 267 ; (2001) 107 FCR 93 at [21] does not detract from it for present purposes. The same questions must be asked. Here, there should be a negative answer to each limb.


case_text: There may be circumstances where the conduct of the employer towards an employee is such that the employee, upon leaving, can assert that he or she has been constructively dismissed, triggering whatever rights the employee may have upon dismissal ( Westen v Union des Assurances de Paris (1996) 88 IR 259 at 261; Brackenridge v Toyota Motor Corporation Australia Ltd (1996) 142 ALR 99 at 106; in the case of position redundancy see Commonwealth Bank of Australia v Finance Sector Union of Australia [2002] FCAFC 193 ; (2002) 125 FCR 9 at [27] ; cf Martech International Pty Ltd v Energy World Corp Ltd [2007] FCAFC 35 at [19] ). In the present case, that may have included a claim pursuant to cl 21.5. That case could have been pursued by or on behalf of these employees. That course was adopted in Finance Sector Union of Australia v Commonwealth Bank of Australia [2001] FCA 1613 , (2001) 111 IR 241 (although set aside in the result on appeal Commonwealth Bank of Australia v Finance Sector Union of Australia [2002] FCAFC 193 ; 125 FCR 9). Rather, the choice was made here to seek to use the freedom of association provisions to, in effect, act as a means of specific enforcement of cl 21.5.


case_text: The decision in Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 ; (1999) 93 FCR 34 is a good illustration of where the dividing line might be drawn. Cases on the non-contravening side of the line include Burnie Port Corp Pty Ltd v Maritime Union of Australia [2000] FCA 1768 ; (2000) 104 FCR 440 and Australian Workers' Union v BHP Iron-Ore Pty Ltd [2001] FCA 3 ; 106 FCR 482. A case with some similarities to the present is National Union of Workers v Qenos Pty Ltd [2001] FCA 178 ; (2001) 108 FCR 90. It dealt with a situation where there was a surplus of employees for genuine business reasons. A "spill and fill" selection and retrenchment process was held not to be capable of giving rise to an injury to any particular employee in his or her employment and could not be said to have altered the position of any individual employee to his or her prejudice. (See also Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 , (2006) 160 IR 1 at [29] and [31].)


case_outcome: discussed

case_text: A "before and after" test is usually applied to see whether there has been any injury to, or prejudicial alteration of, the position of the employee by reason of any act of the employer (eg per Evatt J in Blair v Australian Motor Industries Ltd (1982) 61 FLR 283 at 289, 3 IR 176; per Branson J in Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18 ; (2007) 157 FCR 329 at [127] ). Applying what had been said by the Full Court in an earlier interlocutory appeal ( BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430 ; (2000) 102 FCR 97 at [35] ), it was succinctly put by Kenny J in Australian Workers' Union v BHP Iron-Ore Pty Ltd [2001] FCA 3 ; (2001) 106 FCR 482 at [54] as follows: "Before s 298K(1) can apply, it must be possible to say of an employee that he or she is, individually speaking, in a worse situation after the employer's acts than before them; that the deterioration has been caused by those acts; and that the acts were intentional in the sense that the employer intended the deterioration to occur." The clarification of that approach by the Full Court in Community and Public Sector Union v Telstra Corp Ltd [2001] FCA 267 ; (2001) 107 FCR 93 at [21] does not detract from it for present purposes. The same questions must be asked. Here, there should be a negative answer to each limb. 25 Tracey J usefully summarised the authorities as to the former s 298K in Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 , (2006) 160 IR 1 at [13] [22]. "Injury" is concerned with an adverse effect upon an existing legal right, or "compensable" injury. Prejudicial alteration of position goes beyond that concept. There are many examples in the cases. It is sufficient to refer to Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1 per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ at [37] and [38]; Community and Public Sector Union v Telstra Corp Ltd [2001] FCA 267 ; 107 FCR 93 at [17] [22]; Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] FCA 349 ; (2001) 112 FCR 232 ; and Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18 ; 157 FCR 329. 33 So far as s 793(1)(i) is concerned, the affected employees were, or are, entitled to the benefit of the Certified Agreement in common with all production employees. There is no discrimination between employees in that respect. There is no suggestion that persons with the benefit of the Certified Agreement were being discriminated against as compared with people who did not have the benefit of that Agreement. The fact that the employer was, or may have been, advantaged by not dismissing particular employees because of the way in which cl 21.5 worked, is not pertinent to this statutory obligation. The content and effect of an agreement may not always be irrelevant for example, if the way a particular clause operates is related to some relevant form of discrimination. The decision of the Full Court in Greater Dandenong City Council [2001] FCA 349 ; 112 FCR 232 may provide an example of that, although it is a difficult decision as Branson J said in CSL Australia Pty Ltd [2002] FCA 513 , 113 IR 326 at [54] , it is not easy to derive a ratio decidendi. The decision in Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18 ; 157 FCR 329 may be another. In each case, the employer had work to be done by those employed pursuant to an industrial instrument. The proposed change meant that the work would be done by those who were willing to take alternative employment pursuant to different industrial instruments or perhaps no industrial instrument. That is not the case here.


case_title: Commonwealth Bank of Australia v Finance Sector Union of Australia [2002] FCAFC 193 ; (2002) 125 FCR 9


case_text: A "before and after" test is usually applied to see whether there has been any injury to, or prejudicial alteration of, the position of the employee by reason of any act of the employer (eg per Evatt J in Blair v Australian Motor Industries Ltd (1982) 61 FLR 283 at 289, 3 IR 176; per Branson J in Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18 ; (2007) 157 FCR 329 at [127] ). Applying what had been said by the Full Court in an earlier interlocutory appeal ( BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430 ; (2000) 102 FCR 97 at [35] ), it was succinctly put by Kenny J in Australian Workers' Union v BHP Iron-Ore Pty Ltd [2001] FCA 3 ; (2001) 106 FCR 482 at [54] as follows: "Before s 298K(1) can apply, it must be possible to say of an employee that he or she is, individually speaking, in a worse situation after the employer's acts than before them; that the deterioration has been caused by those acts; and that the acts were intentional in the sense that the employer intended the deterioration to occur." The clarification of that approach by the Full Court in Community and Public Sector Union v Telstra Corp Ltd [2001] FCA 267 ; (2001) 107 FCR 93 at [21] does not detract from it for present purposes. The same questions must be asked. Here, there should be a negative answer to each limb. 25 Tracey J usefully summarised the authorities as to the former s 298K in Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 , (2006) 160 IR 1 at [13] [22]. "Injury" is concerned with an adverse effect upon an existing legal right, or "compensable" injury. Prejudicial alteration of position goes beyond that concept. There are many examples in the cases. It is sufficient to refer to Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1 per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ at [37] and [38]; Community and Public Sector Union v Telstra Corp Ltd [2001] FCA 267 ; 107 FCR 93 at [17] [22]; Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] FCA 349 ; (2001) 112 FCR 232 ; and Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18 ; 157 FCR 329.


case_title: Connington v Municipality of Kogarah [1913] AR (NSW) 40


case_title: Downe v Sydney West Area Health Service (No 2) [2008] NSWSC 159


case_title: Finance Sector Union of Australia v Commonwealth Bank of Australia [2001] FCA 1613 , (2001) 111 IR 241


case_title: Grayndler v Broun [1928] AR (NSW) 46


case_text: Another instance may be provided by what was said by Street J in Hunt v Railway Commissioners (NSW); Ex parte Brown-Smith [1928] AR (NSW) 151 at 154 (albeit dealing with a differently framed section): "and the dismissal must, I think, be a dismissal by an employer really as a matter of victimisation, or the capricious use of his power to dismiss in order, to retaliate upon the employee for his having dared to assert a claim to rights under the award." In dealing with that section, Evatt J in Grayndler v Cunich [1939] HCA 32 ; (1939) 62 CLR 573 said at 595: "we are not investigating a case where a business or department is being closed down, but a case where an employer has determined (1) that the enterprise as a whole shall be conducted entirely upon conditions of private bargaining which are less favourable to employees than award conditions, and also (2) that every employee who qualifies himself to obtain the better award conditions shall immediately be dismissed. This is one of the obvious cases which sec. 9 was designed to cover." This case is not analogous to those examples.


case_text: Tracey J usefully summarised the authorities as to the former s 298K in Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 , (2006) 160 IR 1 at [13] [22]. "Injury" is concerned with an adverse effect upon an existing legal right, or "compensable" injury. Prejudicial alteration of position goes beyond that concept. There are many examples in the cases. It is sufficient to refer to Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1 per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ at [37] and [38]; Community and Public Sector Union v Telstra Corp Ltd [2001] FCA 267 ; 107 FCR 93 at [17] [22]; Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] FCA 349 ; (2001) 112 FCR 232 ; and Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18 ; 157 FCR 329. 33 So far as s 793(1)(i) is concerned, the affected employees were, or are, entitled to the benefit of the Certified Agreement in common with all production employees. There is no discrimination between employees in that respect. There is no suggestion that persons with the benefit of the Certified Agreement were being discriminated against as compared with people who did not have the benefit of that Agreement. The fact that the employer was, or may have been, advantaged by not dismissing particular employees because of the way in which cl 21.5 worked, is not pertinent to this statutory obligation. The content and effect of an agreement may not always be irrelevant for example, if the way a particular clause operates is related to some relevant form of discrimination. The decision of the Full Court in Greater Dandenong City Council [2001] FCA 349 ; 112 FCR 232 may provide an example of that, although it is a difficult decision as Branson J said in CSL Australia Pty Ltd [2002] FCA 513 , 113 IR 326 at [54] , it is not easy to derive a ratio decidendi. The decision in Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18 ; 157 FCR 329 may be another. In each case, the employer had work to be done by those employed pursuant to an industrial instrument. The proposed change meant that the work would be done by those who were willing to take alternative employment pursuant to different industrial instruments or perhaps no industrial instrument. That is not the case here.


case_title: Hunt v Railway Commissioners (NSW); Ex parte Brown-Smith [1928] AR (NSW) 151


case_title: Klanjscek v Silver (1961) 4 FLR 182