case_text: (a) Whilst the possibility of a transfer of shares from Mr Ku to Ji Song had been the subject of prior discussion, in the context of a possible settlement of the trade mark proceedings, it was raised by Mr Ku for the first time at the Avillion Hotel on 19 October 2006. (b) Mr Ku indicated his intention to transfer the shares to Ji Song with a view to effecting a gift inter vivos of those shares. (c) On 23 October 2006 Mr Ku executed a 'Change to company details' form (see Schedule 1) which he believed would, upon being recorded by ASIC, have the effect of validly transferring the shares to Ji Song. (d) On 24 October 2006 Mr Ku gave the original of the 'Change to company details' form signed by him and dated 23 October 2006 to Mr Kim so that Mr Kim might forward it to ASIC. (e) Mr Kim never forwarded the signed document to ASIC. On or about 9 November 2006 he threw it into his rubbish bin. (f) No proper instrument of transfer of the one share in Kjun International Pty Limited that was held by him as at 23 October 2006 or of any other shares, as required by s 1071B(2) of the Corporations Act , was ever executed by Mr Ku, delivered by him to Ji Song or delivered by him to Kjun International Pty Limited for registration. (g) In accordance with clause 32 of Kjun International Limited's constitution, Mr Ku remained the holder of whatever shares he may have held in Kjun International Pty Limited, notwithstanding his electronic lodgement on 9 November 2006 of the 'Change to company details' form with ASIC (see Schedule 2). The prima facie evidence of a transfer from Mr Ku to Ji Song (under s 1274B(2)) was negated by the evidence that no transfer was ever executed or delivered. This is now common ground. (h) Mr Ku never did everything that was necessary to be done in order to transfer any shares in Kjun International Pty Limited to Ji Song and render himself bound by his intended gift inter vivos. (i) No question of an implied resulting trust or any other form of trust or of a collateral contract to constitute a trust, arises. (j) No mention of Mr Ku's intended gift of the shares or any other shares was made in either form of agreement as signed by Luke Song and Mr Ku on 25 October 2006, even though the common understanding of the parties at that time was that the 'Change to company details' form (Schedule 1) had not been received or recorded by ASIC at that stage. (k) When at the Avillion Hotel on 25 October 2006, Luke Song and Mr Ku considered in detail the terms of the longer form of agreement with a view to effecting a settlement of the trade mark proceedings. (l) They then proceeded to execute the longer form of agreement and also inadvertently signed the shorter form of agreement. Neither party was under the influence of alcohol or unable to read and approve the terms of the agreements which were executed. (m) The parties intended that their execution of the longer form of agreement, but not the shorter form, should give rise to legal relations. (n) At the time of the execution of the longer form of agreement, the proper parties to the trade mark proceedings were: Song interests LSU Pty Limited as trustee of the Nirvana Investment Trust Su-shi World Australia Pty Limited Sue Song Luke Song Ku interests Kjun International Pty Limited Sushi Nara Australia Pty Limited (o) When Luke Song executed the longer form of agreement he intended to bind not only Su-shi World Australia Pty Limited, Sue Song and Luke Song, but also LSU Pty Limited as trustee of the Nirvana Investment Trust. (p) When Mr Ku executed the longer form of agreement he intended to bind not only Kjun International Pty Limited but also Sushi Nara Australia Pty Limited. (q) It is clear from paragraphs B, D, D [the second D], F and G in the longer form of agreement that Luke Song and Mr Ku intended the party described as 'A' to include all the respondents in the trade mark proceedings and by the party described as 'B' in that form of agreement to include all the applicants in those proceedings. (r) As at 25 October 2006 Luke Song was the sole director of Su-shi World Australia Pty Limited and he, together with Sue Song, were the directors of LSU Pty Limited. (s) In my opinion, it may be inferred that Sue Song authorised Luke Song to enter into a settlement agreement at some time between 19 and 25 October 2006 on her own behalf and also on behalf of LSU Pty Limited and that the longer form of agreement contained terms which were within the scope of Luke Song's authority. (t) As at 25 October 2006 Mr Ku was the sole director of Kjun International Pty Limited and also Sushi Nara Australia Pty Limited. As such, he had authority to bind both of those companies to a settlement agreement. (u) The longer form of agreement was not void for uncertainty. Its terms may be ascertained from the words used in the longer form of agreement and the relevant surrounding circumstances. (v) The reference in clause G of the settlement agreement to the parties' agreement to 'solve all problems harmoniously through a mutual talk and agreement, and help and cooperate with each other for mutual development without slandering each other' did not constitute an agreement to agree. Rather the words were indicative of a promise by the parties to use their respective best endeavours to resolve future disputes that may arise between them by negotiation, bringing to bear goodwill in so doing. (w) The settlement agreement provided for the applicants in the trade mark proceedings to refrain from continuing those proceedings and to refrain from bringing any further claims against the respondents arising out of the disputes between them in relation to the trade mark. It may be inferred that the applicants in the trade mark proceedings agreed to file a notice of discontinuance with the consent of the respondents. (x) The agreement also provided for no claims to be brought by the respondents against the applicants in the trade mark proceedings arising out of those disputes. Whilst the second clause D speaks of ' If "B" withdraws the lawsuit against "A" brought in the Federal Court of Australia New South Wales District Registry, "A" accepts it without reservation and agrees that there will not be any legal proceedings against "B" from "A"' (emphasis added), it is clear from the terms of the agreement and, in particular, the preamble to clause G that by the agreement the parties mutually agreed that they would 'not continue' with their respective claims so that no right was reserved to the respondents in the trade mark proceedings to institute their cross-claim as they did on 9 November 2006, in the absence of a formal notice of discontinuance to be filed by the applicants with the consent of the respondents in the trade mark proceedings. (y) The settlement agreement recognised the rights of Kjun International Pty Limited to the trade mark 'Su-shi World' and the continuation of the licensing arrangement, such as it was, whereby Sushi Nara Australia Pty Limited acted as a franchisor of the 'Sushi World' name. It provided for a recognition of the rights of the parties presently using the 'Sushi World' name in respect of shops, to continue to do so, and it conferred a right on the respondents in the trade mark proceedings to 'open new Sushi World' shops. (z) Notwithstanding the settlement agreement which had been concluded, the respondents, including JHJ Brothers Holdings Pty Limited, filed their cross-claim in the trade mark proceedings on 9 November 2006 and proceeded to serve same on 13 November 2006 (see [27]-[28] above). Furthermore, Ji Song purported to remove Mr Ku as a director, secretary and public officer of Kjun International Pty Limited, replacing him with Sue Song (see Edwin Davey's letter of 15 December 2006). Needless to say, the purported removal and replacement of Mr Ku by Sue Song was of no force and effect given that Ji Song never became the holder of any shares in Kjun International Pty Limited. (aa) By their conduct in filing and serving the cross-claim as they did, the respondents in the trade mark proceedings repudiated the settlement agreement reached on 25 October 2006. That repudiation was accepted by the applicants in the trade mark proceedings on 18 December 2006 thereby terminating the settlement agreement. (bb) In the circumstances, the restraints imposed upon the parties in relation to continuing the trade mark proceedings, whether as applicants or cross-claimants, came to an end with the consequence that the trade mark proceedings may now proceed to a hearing. (cc) None of the conduct engaged in by any of the Songs or Su-shi World Australia Pty Limited whether by action or omission constituted misleading and deceptive conduct or conduct likely to mislead or deceive. The circumstances which prevailed between 25 October and 9 November 2006 did not give rise to an obligation on the part of the Songs or any of them to disclose any intention that they may have had to file a cross-claim on 9 November 2006 nor did the circumstances give rise to an obligation upon them or any of them to disclose the fact that the cross-claim had been filed following its filing on 9 November 2006 and before its service on 13 November 2006 (see Henjo Investments Pty Limited v Collins Marrickville Pty Limited (1988) 79 ALR 83 at 94-5). (dd) Su-shi World Australia Pty Limited did not engage in any unconscionable conduct within the meaning of s 51AA of the Trade Practices Act . 203 In the foregoing circumstances, the applicant in the current proceedings has failed in respect of the claims as articulated in paragraphs 1 4 and 5 8 of the Second Further Amended Application filed on 6 August 2007. However, he is entitled to a declaration that the third respondent has no right, title or interest in any shares in the fourth respondent and also a declaration that the purported removal of the applicant as a director, secretary and public officer of the fourth respondent and the purported replacement of the applicant as a director, secretary and public officer of the fourth respondent by the first respondent, by the third respondent's resolution signed and dated 15 December 2006, was of no force and effect. 204 Given the basis upon which the case has been decided and the late emergence of evidence, which, if addressed prior to the commencement of the proceedings, may have obviated the need for the proceedings, the question of costs should be reserved for later decision. I propose to direct that the parties file and serve written submissions thereon within 7 days. Schedule 1 Schedule 2 I certify that the preceding two hundred and four (204) numbered paragraphs and two (2) Schedules are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate: Dated: 8 August 2007 Counsel for the Applicant: R J Webb SC and S Fendekian Solicitor for the Applicant: Darryl Barlow & Company Counsel for the First, Second, Third and Fifth Respondents: R K Weaver and S Chrysanthou Solicitor for the First, Second, Third and Fifth Respondents: Edwin Davey Commercial & Litigation Lawyers The Fourth Respondent submitted to such orders as the Court may seem fit. Dates of Hearing: 12, 13, 14, 15, 18, 19 June, 10 July and 6 August 2007 Date of Judgment: 8 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1189.html


case_outcome: cited

case_text: After the Commissioner's decision the applicant successfully obtained an amendment. The amendment had the effect of narrowing the claims. Counsel for the respondent accepts that the appeal should proceed to deal with the patent in its amended form. See Genetics Institute Inc v Kirin-Amgen Inc (1996) 34 IPR 513 at 515, which was accepted as correct, although distinguished on the facts in Airsense Technology Ltd v Vision Systems Ltd (2007) 73 IPR 65 at [13].


case_title: Airsense Technology Ltd v Vision Systems Ltd (2007) 73 IPR 65


case_outcome: applied

case_text: An award of costs is in the discretion of the Court or Judge except as provided by any other Act: Federal Court of Australia Act s 43(2). The discretion must be exercised judicially. In the normal course, costs are ordered to be paid on a party and party basis: Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 232; Re Wilcox; Ex parte Ventura Industries Pty Ltd (No 2) (1996) 72 FCR 152 at 158 per Cooper and Merkel JJ. A costs order is not intended to punish the unsuccessful party but rather to compensate the successful party: Hurst and Devlin v Education Queensland (No 2) [2005] FCA 793 at [5] . This is so even where the ordinary practice is departed from. The aim is not to punish or deter future litigants but simply to compensate a party fully for costs which normal party-party costs could not be expected to do, where it was unreasonable for that party to be subjected to any expenditure of costs, such as where a hopeless proceeding is brought: Cirillo v Consolidated Press Property Ltd (No 2) [2007] FCA 179 at [4] - [5] . Any departure from this general rule requires a special reason: Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 974 at [10] ; Pacific Publications Pty Ltd v Next Publishing Pty Ltd [2005] FCA 971 at [5] . The categories in respect of which departure from the usual rule are contained are not closed: John S Hayes & Associates Pty Limited v Kimberley-Clarke Australia Pty Limited (1994) 52 FCR 203; Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No 2) [2007] FCA 903 at [32] .


case_outcome: referred to

case_text: The general rule under Order 62 rule 3(3) may be departed from where the party in whose favour the costs order was made was required by the interlocutory proceeding to "incur significant costs over and above those which it would have incurred had the opposing party acted with competence and diligence": Life Airbag Co of Australia Pty Ltd v Life Airbag Co (New Zealand) Ltd [1998] FCA 545 ; where the proceeding is complex and its final resolution is a long time away: Allstate Life Insurance Co v ANZ Banking Group Ltd [1995] FCA 660 ; Readymix Holdings International Pte Ltd v Wieland Process Equipment Pty Ltd [2006] FCA 1297: Courtney v Medtel Pty Ltd (No 3) [2004] FCA 347. 24 In McKellar v Container Terminal Management Services Ltd [1999] FCA 1639 , Weinberg J adopted the observation of Lindgren J in Allstate that: ... the power to order that costs be paid forthwith should perhaps be used less sparingly than it has been in the past. That is particularly so in lengthy and complex cases where substantial costs have been thrown away as a result of ill-considered pleadings being drawn. Such costs should be capable of being recovered without the innocent party having to wait, possibly for years, for that to occur.


case_title: Barrett v Metricon [2007] FCA 1509

case_text: Barrett Property Group Ltd and SRS Property Holdings Pty Ltd are the successful applicants in proceedings brought against Metricon Homes Pty Ltd, Ross Palazzesi and Adrian Popple under the Copyright Act 1968 (Cth). On 24 October 2007, by consent, a declaration of infringement of copyright by Metricon as well as declarations that Palazzesi and Popple authorised such infringement were made. Those orders were made following my judgment in the matter which was delivered on 28 September 2007: Barrett Property Group Pty Ltd v Metricon Homes Pty Ltd [2007] FCA 1509. The question of costs which was held over for further argument is now before the Court for resolution. 2 The applicants seek an order that costs be taxed and paid forthwith, and that in respect of half of the costs of preparation and trial, these be taxed on an indemnity basis. The respondents oppose the application but say that if indemnity costs are to be paid then this should be in respect of only 4/13ths of the costs. The trial took thirteen days.


case_title: Cirillo v Consolidated Press Property Ltd (No 2) [2007] FCA 179


case_text: An award of costs is in the discretion of the Court or Judge except as provided by any other Act: Federal Court of Australia Act s 43(2). The discretion must be exercised judicially. In the normal course, costs are ordered to be paid on a party and party basis: Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 232; Re Wilcox; Ex parte Ventura Industries Pty Ltd (No 2) (1996) 72 FCR 152 at 158 per Cooper and Merkel JJ. A costs order is not intended to punish the unsuccessful party but rather to compensate the successful party: Hurst and Devlin v Education Queensland (No 2) [2005] FCA 793 at [5] . This is so even where the ordinary practice is departed from. The aim is not to punish or deter future litigants but simply to compensate a party fully for costs which normal party-party costs could not be expected to do, where it was unreasonable for that party to be subjected to any expenditure of costs, such as where a hopeless proceeding is brought: Cirillo v Consolidated Press Property Ltd (No 2) [2007] FCA 179 at [4] - [5] . Any departure from this general rule requires a special reason: Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 974 at [10] ; Pacific Publications Pty Ltd v Next Publishing Pty Ltd [2005] FCA 971 at [5] . The categories in respect of which departure from the usual rule are contained are not closed: John S Hayes & Associates Pty Limited v Kimberley-Clarke Australia Pty Limited (1994) 52 FCR 203; Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No 2) [2007] FCA 903 at [32] . 4 In Colgate-Palmolive, (at p 233) Sheppard J identified various categories which might give rise to an award of indemnity costs. These include: • the making of allegations of fraud knowing them to be false, and the making of irrelevant allegations of fraud; • evidence of particular misconduct that causes loss of time to the Court and to other parties; • the commencement or continuation of proceedings for an ulterior motive; • wilful disregard of known facts or clearly established law; • the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions; and • an imprudent refusal of an offer to compromise.


case_outcome: discussed

case_title: Compagnie Industrielle de Precontrainte et D'Equipment des Constructions SA v First Melbourne Securities Pty Ltd [1999] FCA 660


case_title: Courtney v Medtel Pty Limited (No 3) [2004] FCA 347

case_text: The general rule under Order 62 rule 3(3) may be departed from where the party in whose favour the costs order was made was required by the interlocutory proceeding to "incur significant costs over and above those which it would have incurred had the opposing party acted with competence and diligence": Life Airbag Co of Australia Pty Ltd v Life Airbag Co (New Zealand) Ltd [1998] FCA 545 ; where the proceeding is complex and its final resolution is a long time away: Allstate Life Insurance Co v ANZ Banking Group Ltd [1995] FCA 660 ; Readymix Holdings International Pte Ltd v Wieland Process Equipment Pty Ltd [2006] FCA 1297: Courtney v Medtel Pty Ltd (No 3) [2004] FCA 347.


case_text: Such matters are generally not capable of precise arithmetical calculation or analysis and are to a considerable extent matters of impression and judgment. See by analogy Dias Aluminium Products Pty Ltd v Ullrich Aluminium Pty Ltd (No 2) [2005] FCA 1400 at [7] . 20 I also consider that this conduct led to wasted costs in relation to much of the evidence of the respondents' expert Mr John Permewan. I did not afford his evidence any weight, because as I found, he was significantly misdirected by Metricon on a number of significant matters and was not told in the witness box before giving evidence about significant revisions to Metricon's witness statements. As a result, his opinions as to independent derivation were founded upon significantly incorrect assumptions and were of no real assistance to the Court. One example of this was that he incorrectly assumed that the Tyrell, Connolly and Streeton designs and homes were not designed by reference to the Prada 35. In fact, as I found, they were. He did not deal expressly in his report with the actual design drawings from which, according to the respondents, Prototypes 20A and 20B were derived. He assumed that certain evidence given by Bugeja, but which was disavowed by him at trial, was correct and he relied upon it. He accepted that Gallery 32 was used in the derivation of Prada 35. It was not. [252]-[256] Furthermore the applicants put the respondents on notice that Mr Permewan had been misinstructed. The solicitors for the applicants wrote to the respondents' solicitors by letter dated 9 October 2006 stating amongst other things that: Mr Permewan has proffered views about whether or not copying occurred by reference to his beliefs based on the untested evidence of Metricon's witnesses. It is clear from his report that Mr Permewan has taken as truthful, and without qualification, the evidence of Metricon's lay witnesses. I accept that consideration of Mr Permewan's affidavit evidence would have required significant amount of time before analysis on the part of the applicants' solicitors and counsel and indeed also by Dr John Cooke the expert architect obtained by the applicants. The matters deposed to by these lay witnesses may be overridden by the impressions formed by the Court following cross-examination. 21 The respondents should be ordered to pay costs on an indemnity basis to the extent of 50% of the preparation for trial and for the trial itself. The order should cover the period from early April 2006 when the respondents filed the first of the affidavits of Bugeja, Popple, Palazzesi and Biasin.


case_title: Ian Duncan v Secretary, Department of Family and Community Services [2007] FCA 507

case_text: I would think it likely that leave to appeal will be granted. The judgment, whilst interlocutory, is one on points of substance: Yap v Granich & Associates [2001] FCA 1735 ; Dunstan v Orr [2007] FCA 873 at [6] ; Duncan v Secretary, Department of Family and Community Services [2007] FCA 507 at [18] .


case_title: Dunstan v Orr [2007] FCA 873


case_text: The respondents say that there were a number of issues which were legitimately raised and which should not attract an indemnity costs order. I accept that submission. However the question before me concerns the conduct of the respondents in relation to the related issues of derivation and copying. These are discrete issues and may be considered as such. The respondents say that there is nothing to warrant departure from the usual rule as to costs. They refer to Hamod v New South Wales (2002) 188 ALR 659 where Gray J (Carr and Goldberg JJ agreeing) said at [20]: 'Indemnity costs are not designed to punish a party for persisting with a case that turns out to fail. They are not awarded as a means of deterring litigants from putting forward arguments that might be attended by uncertainty. Rather, they serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs.' (Emphasis added) The fact that the respondents' case on derivation and copying was rejected, it was submitted, does not lead inevitably to a grant of indemnity costs. That is so. 16 The question then is whether the respondents' conduct in relation to its defence on the issues of derivation and copying constitutes a sufficient reason to take this case, in that respect, out of the ordinary, so far as concerns the exercise of my discretion on the question of costs. I am persuaded that it does. This is not a case where merely arguments 'attended by uncertainty' were before the Court as in Hamod [20]. It is not a case involving witnesses who gave evidence believing it to be true but as to which they were mistaken. It is not a case where judgment depended essentially upon the inherent probabilities of one version of events against another but not involving questions of credit. It is not even a case, such as Walker, where one witness gave fabricated evidence as to part of a case. This matter involved a concerted effort on the part of four key witnesses to present a false defence which has led to the applicants incurring very considerable costs over a long period in meeting and overcoming that defence. The submissions put to me on behalf of the respondents concerning the abandonment by the applicants of its case for infringement of the whole of the Copyright Works, as opposed to merely a substantial part and the abandonment of cases involving houses other than the accused homes, do not respond to the application for indemnity costs. There was no application by the respondents for any variation of a normal costs order by reference to these matters and I did not treat the submissions concerning those separate issues as such. I am concerned merely with the issues of derivation and copying.


case_title: Hurst and Devlin v Education Queensland (No 2) [2005] FCA 793


case_title: Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No 2) [2007] FCA 903


case_title: John S Hayes & Associates Pty Limited v Kimberley-Clarke Australia Pty Limited (1994) 52 FCR 210


case_title: Life Airbag Co of Australia Pty Ltd v Life Airbag Co (New Zealand) Ltd [1998] FCA 545


case_text: In McKellar v Container Terminal Management Services Ltd [1999] FCA 1639 , Weinberg J adopted the observation of Lindgren J in Allstate that: ... the power to order that costs be paid forthwith should perhaps be used less sparingly than it has been in the past. That is particularly so in lengthy and complex cases where substantial costs have been thrown away as a result of ill-considered pleadings being drawn. Such costs should be capable of being recovered without the innocent party having to wait, possibly for years, for that to occur.


case_text: An award of costs is in the discretion of the Court or Judge except as provided by any other Act: Federal Court of Australia Act s 43(2). The discretion must be exercised judicially. In the normal course, costs are ordered to be paid on a party and party basis: Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 232; Re Wilcox; Ex parte Ventura Industries Pty Ltd (No 2) (1996) 72 FCR 152 at 158 per Cooper and Merkel JJ. A costs order is not intended to punish the unsuccessful party but rather to compensate the successful party: Hurst and Devlin v Education Queensland (No 2) [2005] FCA 793 at [5] . This is so even where the ordinary practice is departed from. The aim is not to punish or deter future litigants but simply to compensate a party fully for costs which normal party-party costs could not be expected to do, where it was unreasonable for that party to be subjected to any expenditure of costs, such as where a hopeless proceeding is brought: Cirillo v Consolidated Press Property Ltd (No 2) [2007] FCA 179 at [4] - [5] . Any departure from this general rule requires a special reason: Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 974 at [10] ; Pacific Publications Pty Ltd v Next Publishing Pty Ltd [2005] FCA 971 at [5] . The categories in respect of which departure from the usual rule are contained are not closed: John S Hayes & Associates Pty Limited v Kimberley-Clarke Australia Pty Limited (1994) 52 FCR 203; Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No 2) [2007] FCA 903 at [32] . 5 Whatever the case, the Court should not make such an order for costs unless there is some clear basis or "some special or unusual feature in the case": Pacific Publications at [5] . 6 Here the applicants point to what they describe as particular misconduct on the part of the respondents, as well as the undue prolongation of the defence in the proceeding. Whilst discrete matters, they are, in a significant way, overlapping questions. 7 These complaints concern the conduct of the respondents both in preparation for and at trial, going to the issue of the derivation of the accused plans and houses and whether or not these had been copied from the Copyright Works.


case_title: Readymix Holdings International Pte Ltd v Wieland Process Equipment Pty Ltd [2006] FCA 1297


case_title: Re Wilcox; ex parte Ventura Industries Pty Ltd (No 2) (1996) 72 FCR 152


case_title: Trumpet Software Pty Ltd v OzEmail Pty Ltd [1996] FCA 560


case_text: Reliance is also placed upon the decision in United Insurance Advisers Pty Ltd v United Insurance Advisers (National) Pty Ltd [2006] FCA 440 per Young J at [28] where his Honour said: 'The essential principle is that a discretion can be exercised to order costs on an indemnity basis where the actions of the unsuccessful party have been unreasonable or high-handed or where the claim in question was totally frivolous or hopeless or fundamentally flawed.'


case_title: Universal Music Australia Pty Ltd v Cooper [2005] FCA 1878


case_title: Anthony Vasyli v AOL International Pty Limited [1996] FCA 804

case_text: The taxation of costs, in a case such as this, is likely to be an expensive exercise. The Court will eschew multiple taxations in a proceeding: Vasyli v AOL International Pty Limited [1996] FCA 804. The appeal may be successful, in which case, the significant costs of preparation for taxation will have been wasted: Brasington v Overton Investments Pty Ltd [2001] FCA 571 at [13] . On the other hand, the disposition of the quantum case, assuming an unsuccessful appeal, is likely to be a long way off. 34 In these circumstances I consider that there should be a departure from the ordinary rule under O 62 rule 3(3) to enable taxation of costs to occur prior to the conclusion of the proceeding but tempered by the fact of an appeal likely to be heard in the near future. I propose to order that the applicants' costs be taxed and paid, including the costs of this motion, forthwith but to stay the operation of that order pending the determination of both the application for leave to appeal, and the appeal, if leave is granted, or until further order. I will grant liberty to apply in this respect to allow for any unforeseen and undue delay in that determination. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 23 November 2007 Counsel for the Applicants: Mr C Golvan SC Solicitors for the Applicants: Middletons Counsel for the Respondent: Mr D Catterns QC with Dr W Rothnie Solicitors for the Respondent: Blake Dawson Waldron Date of Hearing: 30 October 2007 Date of Judgment: 23 November 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1823.html


case_text: The respondents contend that their conduct in this case does not fit within that description. It is said that even a finding that a party has fabricated evidence is not necessarily sufficient to warrant the grant of an indemnity costs order. That is so. An example of that can be found in Walker v Citygroup Global Markets Pty Ltd [2005] FCA 1866 at [31] - [32] . However, each case requires to be considered on its own facts. In that case, there had been a finding that a witness was unreliable which included a finding that he had fabricated some of his evidence to support the respondents' case. However Kenny J concluded at [32], in the context of the entire proceeding, that the conduct of that witness did not take the case so far outside the ordinary range of cases as to justify an award of indemnity costs. In the end, that was a matter of judgment upon the particular facts. 13 In this case, on the issues of derivation and copying, I made findings of a conscious and deliberate effort on the part of the respondents to mislead the Court on both of those matters. These were of central importance in the case. Had those attempts to mislead been successful, it would have seen the case determined in favour of the respondents. It is, relevant in this context, to consider particular facts and findings relating to the evidence, both oral and written given by Bujega, Popple, Palazesi and Biasin who were the key witnesses called by the respondents: • They were senior employees and in the case of Mr Palazzesi, the managing director of Metricon; [131] • Evidence containing important and essential factual matters going to the issue of derivation were disavowed by Bugeja at trial without explanation other than that the material could be arguably misleading; [180] • Popple too, disavowed important affidavit evidence at the trial, which went to the core of the respondents' case on derivation; [181], [182] • Exhibit JMB 28, proffered as proof of an independent derivation path, was deliberately misleading; [207] • Popple deliberately omitted important information from his affidavit because it was inconsistent with his written evidence which pointed to an independent design path; [215] • Chronology Mk I and Mk II also proffered as proof of an independent derivation path were deliberately misleading in important respects and indeed were almost entirely misleading; [218] • The explanations given by Popple and Bujega that the Prada 35 was a result of modifications to the Gallery 32 design as well as the Eldridge design were false; [223] • Bugeja deliberately copied the alfresco quadrant from the Seattle 31 despite his denial; [225] • Popple knew that Prototype 20B was copied from the Seattle 31; [226] • There was conscious copying of the Seattle 31 design and/or display home as to the alfresco quadrant by Metricon in producing Prototype 20B and in turn the Prada 35; [226], [227] • Palazzesi, in his pre-trial affidavits sought to create the false impression of his close involvement in an independently created design of the Prada 35; [275] • The explanation by Palazzesi and Popple that the Gallery design was discussed as a basis for producing the Prototype 20A, Prototype 20B and the Prada 35 was an after the fact explanation concocted in order to establish an independent design path; [277] and • Ultimately in cross-examination, Popple conceded that the other accused homes namely the Tyrell, Streeton and Connolly designs were produced by reference to Prototype 20B and the Prada 35. [290] 14 These illustrate a determined effort on the part of the respondents and their witnesses to establish a defence on one of the central issues in the case which they knew to be false. It was left to the forensic efforts of the applicants' solicitors and counsel and some belated and limited concessions made by Popple and Bugeja during their oral evidence, which led to these attempts to mislead the Court being exposed. 15 The result of this was that very significant costs have been incurred by the applicants both in preparation for and the conduct of the trial which ought never to have been required. Had this not been done then only those issues legitimately before the Court involving both questions of fact and law would have been tried. 16 The question then is whether the respondents' conduct in relation to its defence on the issues of derivation and copying constitutes a sufficient reason to take this case, in that respect, out of the ordinary, so far as concerns the exercise of my discretion on the question of costs. I am persuaded that it does. This is not a case where merely arguments 'attended by uncertainty' were before the Court as in Hamod [20]. It is not a case involving witnesses who gave evidence believing it to be true but as to which they were mistaken. It is not a case where judgment depended essentially upon the inherent probabilities of one version of events against another but not involving questions of credit. It is not even a case, such as Walker, where one witness gave fabricated evidence as to part of a case. This matter involved a concerted effort on the part of four key witnesses to present a false defence which has led to the applicants incurring very considerable costs over a long period in meeting and overcoming that defence. The submissions put to me on behalf of the respondents concerning the abandonment by the applicants of its case for infringement of the whole of the Copyright Works, as opposed to merely a substantial part and the abandonment of cases involving houses other than the accused homes, do not respond to the application for indemnity costs. There was no application by the respondents for any variation of a normal costs order by reference to these matters and I did not treat the submissions concerning those separate issues as such. I am concerned merely with the issues of derivation and copying.


case_title: Yap v Granich & Associates [2001] FCA 1735


case_text: Godwin submits that, if there were a decision for the purposes of s 13 of the ADJR Act, Mr Priestley is not a person aggrieved by that decision. She submits that there is nothing in Mr Priestley's application which indicates the manner in which Mr Priestley alleges his interests were affected, adversely or otherwise, by the decisions he alleges Mr Budak made on 17 October 2007. Accordingly, she submits, Mr Priestley is not a person aggrieved within the meaning of s 3(4)(a)(i) of the ADJR Act for the purposes of ss 5 and 13 of that Act. Ms Godwin submits that Mr Priestley has no special interest as described in Australian Conservation Foundation Incorporated v The Commonwealth of Australia (1980) 146 CLR 493 at 530-531. She submits that, as the High Court pointed out, a belief that particular conduct should be taken or prevented is not sufficient to give the possessor of that belief locus standi . Mr Priestley is not, she says, a person interested, in that he is not likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest. Ms Godwin submits that Mr Priestley cannot demonstrate and has not demonstrated an interest in Mr Budak's alleged decision beyond an interest being held by virtue of being a member of the public, albeit a public linked to Parliamentary Service employees ( Tooheys Ltd v Minister for Business and Consumer Affairs [1981] FCA 121 ; (1981) 36 ALR 64).


case_text: Priestley does not deny that he received the letter containing the reasons of 17 October 2007. The document was delivered specifically to Mr Priestley. I am prepared to infer that it was delivered on behalf of Mr Budak ( Australian Foreman Stevedores Association v Crone (1989) 20 FCR 377 at 385). This leaves open the question whether the requirement in s 13(2) that ' the person who made the decision shall, subject to this section, as soon as practicable, and in any event within 28 days, after receiving the request, prepare the statement and furnish it to the person who made the request ' requires that the decision be furnished personally by the decision-maker. "Furnish" means "provide or supply" ( Macquarie Dictionary , Revised 3 rd Edition). Section 13(2) cannot, in my opinion, be read to preclude, for example, the sending by post. This itself involves the use of other persons to furnish the reasons. I see no substantive difference in asking another person to arrange to have the reasons of the decision-maker sent to the person who made the request. In this case, Mr Budak's reasons were enclosed in a letter signed by Ms Karen Labrum, Acting Regional Director, ACT, Australian Public Service Commission. The basis of Mr Priestley's application is that he was given no reasons for an alleged decision made on 17 October 2007. The complaint that he received reasons but that they were not furnished to him by the decision-maker does not seem relevant to this application. In any event, I do not accept that they were not furnished as required.


case_text: Priestley says that he is entitled to reasons for decisions which he says were made on 17 October 2007. Before one looks to see whether there is a decision under an enactment, which must be expressly or impliedly required or authorised by the enactment and must confer, alter, or otherwise affect legal rights or obligations ( Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99 at [89] ), a threshold question must be considered: was there a decision made on that date? An examination of Mr Budak's reasons of 17 October 2007 for his decision of 18 September 2007 discloses that he considered the substance of the allegations against the Parliamentary Service Commissioner, Ms Briggs. Mr Budak explained in his reasons that he formed the view that Mr Priestley's allegations against Ms Briggs were not sufficiently persuasive to warrant further investigation. Specifically, Mr Budak said that the letter and attachments that were said by Mr Priestley to have been divulged by Ms Briggs to the former Merit Protection Commissioner, Mr Lamond, were in fact received by Ms Briggs after Mr Lamond's departure for a position in another Department. Accordingly, the allegation that the documents had been passed by Ms Briggs to Mr Lamond for purposes connected with Mr Lamond's then current position as Parliamentary Service Merit Protection Commissioner was unfounded, as was the allegation that the receipt of the letter and attachments by Mr Lamond had prompted his resignation. He had already left the position. Mr Priestley's letter of 27 August 2007 also contained allegations concerning breaches of the Code of Conduct by Mr Lamond himself. Mr Priestley appears to submit that Mr Budak was obliged to make a decision pursuant to clause 2.4.3 of the Determination to refer the allegations concerning Mr Lamond to the relevant officer holder.


case_text: his submissions, Mr Priestley raises various complaints about previous orders made by a judge of the Court. No appeal or application for leave to appeal was brought against the making of those orders in this Court. However, it appears that those orders were the subject of consideration by the High Court in Priestley v Godwin (Parliamentary Service Merit Protection Commissioner) (2008) 251 CLR 612. In that case, French CJ said that Mr Priestley's allegations regarding those previous orders were ' baseless '. I will not consider them further. Mr Priestley also provided detailed submissions on the obligation to provide a statement of reasons within the meaning of the ADJR Act. That obligation is not disputed. Ms Godwin does not deny that such a general obligation exists as provided by the ADJR Act. Rather, she says that a decision was made on 18 September 2007, that reasons were given on 17 October 2007 and that no further decisions were made. At the time that Mr Budak wrote to Mr Priestley informing him that he did not come to a new decision in his statement of reasons of 17 October 2007 and did not accept that he was obliged to provide a further statement of reasons, he was no longer the Acting Parliamentary Service Merit Protection Commissioner. This is of relevance because s 13(3) of the ADJR Act relevantly provides: Where a person to whom a request is made under subsection (1) is of the opinion that the person who made the request was not entitled to make the request, the first-mentioned person may, within 28 days after receiving the request: (a) give to the second-mentioned person notice in writing of his or her opinion; or...


case_text: 23 of the Federal Court Act provides that the Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue or direct the issue of writs of such kinds, as the Court thinks appropriate. Section 23 does not invest the Court with jurisdiction. Jurisdiction is conferred by other statutes ( Thomson Australian Holdings Proprietary Limited v The Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150 at 161). Relevantly for these proceedings, Parliament has invested the Court with jurisdiction in relation to statements of reasons pursuant to s 13 of the ADJR Act. Section 13(4A) of the ADJR Act provides that the Court may, on application, make an order declaring that the person who made a request for a statement of reasons was, or was not, entitled to make the request. That section is the source of the Court's jurisdiction to make orders with respect to statements of reasons and, Ms Godwin submits, limits the Court's powers in granting relief to declaring that a person does, or does not have, an entitlement to make a request for a statement of reasons. A declaration that a person was entitled to make a request for a statement of reasons then requires the person to whom the request was made to provide such a statement within 28 days (s 13(4) of the ADJR Act). Ms Godwin points to the procedures in s 13 of the ADJR Act. Mr Priestley made a request to Mr Budak for reasons for the decisions he says were made on 17 October 2007 (s 13(1)). Mr Budak formed the opinion that Mr Priestley was not entitled to make the request because there was no decision as alleged and gave Mr Priestley notice in writing of his opinion (purportedly under s 13(3)). Following the receipt of a s 13(3) notice, the course available to Mr Priestley would have been to apply to the Court for an order declaring that he was or was not entitled to make the request (s 13(4A)).


case_text: 25 September 2007 Mr Priestley wrote to Mr Budak again, requesting that Mr Budak provide a statement of reasons pursuant to s 13 of the ADJR Act for: [T] he refusal to accept my report of 27 August 2007 pursuant to paragraph 1(b), and [subclauses] (2) and (3) of clause 2.4.3 of [the Determination] ; [T] he failure to investigate the alleged breaches of the Code of Conduct by the [Parliamentary Service Commissioner] ; and [T] he failure to refer the report concerning alleged breaches of the [Code of Conduct] by the former Merit Protection Commissioner to the relevant office holder. By covering letter bearing the date 22 September 2007, Mr Budak provided to Mr Priestley a document entitled "Statement of Reasons under Section 13 of Administrative Decisions (Judicial Review) Act 1977 ". In that statement Mr Budak set out his decision and findings on material questions of fact. The statement of reasons was dated 17 October 2007. It is accepted that the September date on the covering letter was incorrect. In relation to the first two matters for which Mr Priestley requested reasons, Mr Budak stated that, while he considered the letter of 27 August 2007 ' as potentially being ' a whistleblower's report, as a report pursuant to paragraph (1)(b) of clause 2.4.3 of the Determination, he did not consider that the matter warranted further investigation. Mr Budak also set out the findings which formed the basis of his decision that the matter did not warrant further investigation. In a further letter to Mr Budak dated 19 November 2007, Mr Priestley accepted that Mr Budak had furnished a statement as required by s 13(2) of the ADJR Act. However, he added that: ' You correctly concluded that my letter of 27 August 2007 was a whistleblower's report as it was intended by me and as I had indicated in the letter. In consequence, therefore, you were obliged to reconsider the issue and in so doing [you] came to a new decision and refused to make a decision '. He requested a statement of reasons pursuant to s 13(1) of the ADJR Act for the alleged further decisions, which he described as decisions: [T] o make no further inquiry into the alleged breaches of the Parliamentary Service Code of Conduct by [the Parliamentary Service Commissioner] ; and [T] o receive and not refer the alleged breaches of the Parliamentary Service Code of Conduct by [the former Merit Protection Commissioner] to the appropriate office holder. Mr Priestley also requested a statement of reasons for what he asserted was a refusal to investigate an alleged separate breach of the Code of Conduct by the Parliamentary Service Commissioner, namely, that she did not refer allegations made against the former Merit Protection Commissioner to the Presiding Officers. It is apparent from the detailed submissions and assertions in his letter of 19 November 2007 that Mr Priestley considered that there had been a variation or revocation of the original decision. He asserted that the terms of the original decision showed that there had been a ' fundamental procedural failure ' to consider his letter of 27 August 2007 in accordance with s 48(1) of the Parliamentary Service Act and clause 2.4.3 of the Determination. It followed, he said, that Mr Budak had been obliged to revisit the issue and in so doing had come to a new decision and refused or failed to make a decision. Ms Godwin submits that, if there were a decision for the purposes of s 13 of the ADJR Act, Mr Priestley is not a person aggrieved by that decision. She submits that there is nothing in Mr Priestley's application which indicates the manner in which Mr Priestley alleges his interests were affected, adversely or otherwise, by the decisions he alleges Mr Budak made on 17 October 2007. Accordingly, she submits, Mr Priestley is not a person aggrieved within the meaning of s 3(4)(a)(i) of the ADJR Act for the purposes of ss 5 and 13 of that Act. Ms Godwin submits that Mr Priestley has no special interest as described in Australian Conservation Foundation Incorporated v The Commonwealth of Australia (1980) 146 CLR 493 at 530-531. She submits that, as the High Court pointed out, a belief that particular conduct should be taken or prevented is not sufficient to give the possessor of that belief locus standi . Mr Priestley is not, she says, a person interested, in that he is not likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest. Ms Godwin submits that Mr Priestley cannot demonstrate and has not demonstrated an interest in Mr Budak's alleged decision beyond an interest being held by virtue of being a member of the public, albeit a public linked to Parliamentary Service employees ( Tooheys Ltd v Minister for Business and Consumer Affairs [1981] FCA 121 ; (1981) 36 ALR 64).


case_text: propositions have been applied most commonly in circumstances where it is clear that the claimant group is a sub-group or sub-set or part of a native title claim group. Cases such as Tilmouth , Landers , Dieri People , McKenzie and Reid are all cases in which it was clear that the claim group was not a native title claim group. The cases also make it clear that caution needs to be exercised before concluding on a strike-out application that a claim group is a sub-group, sub-set or part of a native title claim group: Colbung v The State of Western Australia [2003] FCA 774 at [23] - [26] per Finn J; McKenzie at 223 [41] per Finn J; Hillig at [60] per Bennett J; Reid at [28] per Finn J; and Kite at [22] per Finn J. For example, it may be that a sub-group of a community sharing traditional laws and customs alone possesses rights and interests in a particular area and that sub-group may itself constitute a native title claim group: Hillig at [60] per Bennett J (see also the obiter observations of Wilcox J in Bodney v State of Western Australia [2003] FCA 890 at [41] ; Perry M and Lloyd S, Australian Native Title Law (Lawbook Co, 2003) [3.130].


case_outcome: considered

case_text: cases where an applicant claims that he or she was authorised at a meeting of members of a native title claim group, it will often be necessary to consider the notice given of the meeting in order to determine if all members of the claim group were given a reasonable opportunity to participate in the decision-making process. In the context of an application under s 66B of the NTA, French J in Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 said (at [45]): In relation to the present motions I regret to say that the evidence and the processes adopted were not adequate to meet the conditions necessary for an order under s 66B. For each of the applications there is a defined native title claim group which is set out earlier in these reasons. The connection between those who attended the various meetings referred to and the respective native title claim groups was not established either in respect of notification nor, more importantly, in respect of attendance. The native title claim groups are defined in each case by reference to apical ancestors and biological descendants of those persons and persons adopted by them. The advertisements and notices did not refer to the relevant native title claim groups except by use of the generic title of the applications in question. The membership of the native title claim group by those who attended each meeting was not demonstrated. Rather it was reported as an asserted self-identification. Mrs Morich made some statements from the bar table doubting the representativeness of those who attended at the Southern Noongar meeting. Her statements might be right or wrong. They were not evidence. But my inability to make any judgment about them illustrates the inadequacy of the evidence as it presently stands for the purposes of a s 66B application. And even if it be accepted that each of the members who attended each of the meetings was a member of the relevant native title claim group, it is not established that they were in any sense representative of the various components of the native title claim group concerned. I turn now to apply the relevant legal principles to the facts of this case. Native title claim group A native title claim group consists of all those persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed. The evidence in this case leads me to the conclusion that the Brown Family Group is a sub-group or sub-set of a native title claim group. The Brown Family Group, as defined in the original application, consisted of 22 persons, some of whom are deceased. Twelve or thirteen of the persons, including the applicant, are also listed as claimants or antecedents in the AM-Y claim group. The applicant is the daughter of Ms Jessie Brown, a person who, with her descendants, is named as a member of the AM-Y claim group. The persons named in the original application as part of the Brown Family Group included Mr Billy Brown, Ms Ida Brown, Ms Nellie Brown and Mr Johnny Wongan. The Brown Family Group, as defined in the amended application, consists of 22 persons and their descendants, but the four persons previously named have been removed and replaced by Mr Johnny Fatt, Ms Eva Fatt, Ms Beverly Fatt and Mr Ronald Fatt. In Attachment S in the amended application, the applicant provides an explanation for the changes in the composition of the Brown Family Group. She states (among other things) that Ms Nellie Brown has been excluded "as one of her granddaughters, Ms Maureen Williams, was on the AM-Y governing committee and did not want to be part of the Brown Family Group". She states that Ms Edna Williams is Ms Nellie Brown's daughter. She also states that Mr Johnny Fatt, Ms Eva Fatt, Ms Beverly Fatt and Mr Ronald Fatt are children of Ms Nellie Brown and that they have agreed to be members of the Brown Family Group. The AM-Y native title claim group is defined in the application made by that group as "those people (now living) who hold in common the body of traditional laws and customs governing the area the subject of the claim". Three groupings of persons are alleged to be members of the claim group. For present purposes, only part of the first group is relevant. The following sets of siblings, together with all their descendants are members of the native title claim group; ... 1.6 Hazel Brown, Ricky Brown and Martha Edwards; 1.7 Edna Williams, Johnny Fatt, Eva Fatt, Beverly Fatt and Ronald Fatt. 1.8 Kelly Tjutatja Brown, Tommy Brown, Henry Brown, Jessie Brown and Billy Nungki Brown; ... 1.14 David Brown, Bulla Brown, Annabel Lang, Ida Brown, Lucy Brown and Linda Brown. The Brown Family Group, as defined in the amended application, includes all of the persons in para 1.7 above, other than Ms Edna Williams, all of the persons in para 1.8 above, other than Mr Billy Nungki Brown, and, all of the persons in para 1.4 (assuming, as appears to be the case, Ms Annabel Brown and Ms Annabel Lang are the same person), other than Ms Ida Brown. Mr Billy Brown and Ms Ida Brown are part of the Brown Family Group as defined in the original application. Secondly, the applicant asserts that she was authorised by a meeting of the Brown Family Group on 30 May 2008. That was after the original application had been filed and before the amended application was filed. There are a number of reasons why it must be concluded that the events at the meeting held on 30 May 2008 did not give rise to a valid and effective authorisation. First, none of Messrs David Brown, Bobby and Sammy Brown and Sandy Brian Buzzacott were given notice of the meeting and none of them authorise the applicant to make the application or deal with matters arising in relation to it. They, or at least some of them, appear to be part of the Brown Family Group and the failure to give them notice of the meeting is fatal to the applicant's claim that she has been authorised to make the application and deal with matters arising in relation to it. Even if she could overcome these difficulties, she faces other obstacles in the way of establishing a valid authorisation. There is no evidence that any advertisement or notice was given in respect of the meeting held on 30 May 2008. Furthermore, as in Bolton , the connection between those who attended the meeting referred to and the native title claim group is not established in respect of attendance. The applicant called another meeting of the Brown Family Group on 8 November 2008. That meeting was advertised in the "Coober Pedy Regional Times". The advertisement was in the following terms: GENERAL MEETING BROWN FAMILY GROUP GENERAL MEETING Will be held on Saturday. November 8, 2008 2pm at Lot 60 Chadwick Street COOBER PEDY For more information phone 86725196 In my opinion, this advertisement was deficient in terms of giving all members of the Brown Family Group notice of the meeting because it did not sufficiently identify the alleged native title claim group such that a person reading the advertisement could determine if he or she was, or may be, a member of the Brown Family Group. The applicant said that in addition to the advertisement, she sent out 50 letters to "Bfg claimants members" of the intention to hold a general meeting on 8 November 2008. However, the identities of the addressees were not established, and copies of the letters were not put before the Court.


case_title: Colbung v The State of Western Australia [2003] FCA 774


case_title: Daniel v Western Australia (2003)194 ALR 278

case_text: importance of proper authorisation to the native title determination claim process has been emphasised many times. For present purposes, it is sufficient to refer to the remarks of French J (as his Honour then was) in Daniel v Western Australia [2002] FCA 1147 ; (2003) 194 ALR 278 at 283 [11] : It is of central importance to the conduct of native title determination applications and the exercise of the rights that flow from their registration, that those who purport to bring such applications and to exercise such rights on behalf of a group of asserted native title holders have the authority of that group to do so. Prior to the 1998 amendments there was no requirement under the Native Title Act that an applicant have such authority. The absence of that requirement led, in some cases, to conflicting and overlapping claims all carrying with them the statutory right to negotiate in respect of the grant of mineral tenements and the compulsory acquisition by Commonwealth or state governments of native title rights and interests. Although many aspects of the 1998 amendments were the subject of controversy in the public and parliamentary debates that preceded their enactment, the need for communal authorisation of claims was largely a matter of common ground. (See also Dieri People at 377 [55] per Mansfield J.)


case_text: native title determination application does not comply with s 61 of the NTA if it is clearly established that it is not made by a native title claim group. A native title claim group is a group consisting of all the persons who, according to their traditional laws and customs, had the common or group rights or interests comprising the particular native title claimed. These propositions follow from the provisions of ss 61(1) and (4), 251B and 253 of the NTA and have been stated in the cases: Risk v National Native Title Tribunal [2000] FCA 1589 at [60] - [61] per O'Loughlin J; Tilmouth v Northern Territory of Australia [2001] FCA 820 ; (2001) 109 FCR 240 (" Tilmouth ") at 241-242 [4] per O'Loughlin J; Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 (" Landers ") at 504 [33] per Mansfield J; Dieri People v State of South Australia [2003] FCA 187 ; (2003) 127 FCR 364 (" Dieri People ") at 377-378 [55]-[56] per Mansfield J; McKenzie at 223 [41] per Finn J; Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115 (" Hillig ") at [60] per Bennett J; Harrington-Smith (on behalf of the Wongatha People) v Western Australia (No 9) [2007] FCA 31 ; (2007) 238 ALR 1 at 230-232 [1206] - [1217] per Lindgren J; Reid v State of South Australia [2007] FCA 1479 (" Reid ") at [27] per Finn J; Kite v State of South Australia [2007] FCA 1662 (" Kite ") at [21]-[22] per Finn J. The propositions have been applied most commonly in circumstances where it is clear that the claimant group is a sub-group or sub-set or part of a native title claim group. Cases such as Tilmouth , Landers , Dieri People , McKenzie and Reid are all cases in which it was clear that the claim group was not a native title claim group. The cases also make it clear that caution needs to be exercised before concluding on a strike-out application that a claim group is a sub-group, sub-set or part of a native title claim group: Colbung v The State of Western Australia [2003] FCA 774 at [23] - [26] per Finn J; McKenzie at 223 [41] per Finn J; Hillig at [60] per Bennett J; Reid at [28] per Finn J; and Kite at [22] per Finn J. For example, it may be that a sub-group of a community sharing traditional laws and customs alone possesses rights and interests in a particular area and that sub-group may itself constitute a native title claim group: Hillig at [60] per Bennett J (see also the obiter observations of Wilcox J in Bodney v State of Western Australia [2003] FCA 890 at [41] ; Perry M and Lloyd S, Australian Native Title Law (Lawbook Co, 2003) [3.130]. The importance of proper authorisation to the native title determination claim process has been emphasised many times. For present purposes, it is sufficient to refer to the remarks of French J (as his Honour then was) in Daniel v Western Australia [2002] FCA 1147 ; (2003) 194 ALR 278 at 283 [11] : It is of central importance to the conduct of native title determination applications and the exercise of the rights that flow from their registration, that those who purport to bring such applications and to exercise such rights on behalf of a group of asserted native title holders have the authority of that group to do so. Prior to the 1998 amendments there was no requirement under the Native Title Act that an applicant have such authority. The absence of that requirement led, in some cases, to conflicting and overlapping claims all carrying with them the statutory right to negotiate in respect of the grant of mineral tenements and the compulsory acquisition by Commonwealth or state governments of native title rights and interests. Although many aspects of the 1998 amendments were the subject of controversy in the public and parliamentary debates that preceded their enactment, the need for communal authorisation of claims was largely a matter of common ground. (See also Dieri People at 377 [55] per Mansfield J.)


case_text: native title determination application does not comply with s 61 of the NTA if it is clearly established that it is not made by a native title claim group. A native title claim group is a group consisting of all the persons who, according to their traditional laws and customs, had the common or group rights or interests comprising the particular native title claimed. These propositions follow from the provisions of ss 61(1) and (4), 251B and 253 of the NTA and have been stated in the cases: Risk v National Native Title Tribunal [2000] FCA 1589 at [60] - [61] per O'Loughlin J; Tilmouth v Northern Territory of Australia [2001] FCA 820 ; (2001) 109 FCR 240 (" Tilmouth ") at 241-242 [4] per O'Loughlin J; Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 (" Landers ") at 504 [33] per Mansfield J; Dieri People v State of South Australia [2003] FCA 187 ; (2003) 127 FCR 364 (" Dieri People ") at 377-378 [55]-[56] per Mansfield J; McKenzie at 223 [41] per Finn J; Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115 (" Hillig ") at [60] per Bennett J; Harrington-Smith (on behalf of the Wongatha People) v Western Australia (No 9) [2007] FCA 31 ; (2007) 238 ALR 1 at 230-232 [1206] - [1217] per Lindgren J; Reid v State of South Australia [2007] FCA 1479 (" Reid ") at [27] per Finn J; Kite v State of South Australia [2007] FCA 1662 (" Kite ") at [21]-[22] per Finn J.


case_text: native title determination application does not comply with s 61 of the NTA if it is clearly established that it is not made by a native title claim group. A native title claim group is a group consisting of all the persons who, according to their traditional laws and customs, had the common or group rights or interests comprising the particular native title claimed. These propositions follow from the provisions of ss 61(1) and (4), 251B and 253 of the NTA and have been stated in the cases: Risk v National Native Title Tribunal [2000] FCA 1589 at [60] - [61] per O'Loughlin J; Tilmouth v Northern Territory of Australia [2001] FCA 820 ; (2001) 109 FCR 240 (" Tilmouth ") at 241-242 [4] per O'Loughlin J; Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 (" Landers ") at 504 [33] per Mansfield J; Dieri People v State of South Australia [2003] FCA 187 ; (2003) 127 FCR 364 (" Dieri People ") at 377-378 [55]-[56] per Mansfield J; McKenzie at 223 [41] per Finn J; Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115 (" Hillig ") at [60] per Bennett J; Harrington-Smith (on behalf of the Wongatha People) v Western Australia (No 9) [2007] FCA 31 ; (2007) 238 ALR 1 at 230-232 [1206] - [1217] per Lindgren J; Reid v State of South Australia [2007] FCA 1479 (" Reid ") at [27] per Finn J; Kite v State of South Australia [2007] FCA 1662 (" Kite ") at [21]-[22] per Finn J. The propositions have been applied most commonly in circumstances where it is clear that the claimant group is a sub-group or sub-set or part of a native title claim group. Cases such as Tilmouth , Landers , Dieri People , McKenzie and Reid are all cases in which it was clear that the claim group was not a native title claim group. The cases also make it clear that caution needs to be exercised before concluding on a strike-out application that a claim group is a sub-group, sub-set or part of a native title claim group: Colbung v The State of Western Australia [2003] FCA 774 at [23] - [26] per Finn J; McKenzie at 223 [41] per Finn J; Hillig at [60] per Bennett J; Reid at [28] per Finn J; and Kite at [22] per Finn J. For example, it may be that a sub-group of a community sharing traditional laws and customs alone possesses rights and interests in a particular area and that sub-group may itself constitute a native title claim group: Hillig at [60] per Bennett J (see also the obiter observations of Wilcox J in Bodney v State of Western Australia [2003] FCA 890 at [41] ; Perry M and Lloyd S, Australian Native Title Law (Lawbook Co, 2003) [3.130].


case_title: Kite v State of South Australia [2007] FCA 1662


case_text: test to be applied on an application under s 84C(1) of the NTA is clear. Finn J stated the relevant principles in McKenzie v South Australia [2005] FCA 22 ; (2005) 214 ALR 214 (" McKenzie ") at 221 [26]: Beyond this provision [that is, s 84C(1)] this court retains its power of summary dismissal under O 20 r 2 of the Federal Court Rules . It is now well accepted that applications under s 84C(1) should be approached in the same cautious way as applications under O 20 r 2: see Bodney v Bropho [2004] FCAFC 226...at [51] [52]. The court's powers should be exercised only where the claim as expressed is untenable and upon the version of the evidence favourable to the respondents to the strike out: Landers v South Australia [2003] FCA 264 ; (2003) 128 FCR 495 at [7] . A clear case has to be made out: Williams v Grant [2004] FCAFC 178...at [48] [49]. Nonetheless, it may require extensive argument and may be necessary to adduce evidence to establish the futility of a case: General Steel Industries Inc v Commission for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 130; Bodney v Bropho at [51] [52]. A native title determination application does not comply with s 61 of the NTA if it is clearly established that it is not made by a native title claim group. A native title claim group is a group consisting of all the persons who, according to their traditional laws and customs, had the common or group rights or interests comprising the particular native title claimed. These propositions follow from the provisions of ss 61(1) and (4), 251B and 253 of the NTA and have been stated in the cases: Risk v National Native Title Tribunal [2000] FCA 1589 at [60] - [61] per O'Loughlin J; Tilmouth v Northern Territory of Australia [2001] FCA 820 ; (2001) 109 FCR 240 (" Tilmouth ") at 241-242 [4] per O'Loughlin J; Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 (" Landers ") at 504 [33] per Mansfield J; Dieri People v State of South Australia [2003] FCA 187 ; (2003) 127 FCR 364 (" Dieri People ") at 377-378 [55]-[56] per Mansfield J; McKenzie at 223 [41] per Finn J; Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115 (" Hillig ") at [60] per Bennett J; Harrington-Smith (on behalf of the Wongatha People) v Western Australia (No 9) [2007] FCA 31 ; (2007) 238 ALR 1 at 230-232 [1206] - [1217] per Lindgren J; Reid v State of South Australia [2007] FCA 1479 (" Reid ") at [27] per Finn J; Kite v State of South Australia [2007] FCA 1662 (" Kite ") at [21]-[22] per Finn J. The propositions have been applied most commonly in circumstances where it is clear that the claimant group is a sub-group or sub-set or part of a native title claim group. Cases such as Tilmouth , Landers , Dieri People , McKenzie and Reid are all cases in which it was clear that the claim group was not a native title claim group. The cases also make it clear that caution needs to be exercised before concluding on a strike-out application that a claim group is a sub-group, sub-set or part of a native title claim group: Colbung v The State of Western Australia [2003] FCA 774 at [23] - [26] per Finn J; McKenzie at 223 [41] per Finn J; Hillig at [60] per Bennett J; Reid at [28] per Finn J; and Kite at [22] per Finn J. For example, it may be that a sub-group of a community sharing traditional laws and customs alone possesses rights and interests in a particular area and that sub-group may itself constitute a native title claim group: Hillig at [60] per Bennett J (see also the obiter observations of Wilcox J in Bodney v State of Western Australia [2003] FCA 890 at [41] ; Perry M and Lloyd S, Australian Native Title Law (Lawbook Co, 2003) [3.130].


case_text: effect of s 251B of the NTA is that where there is a traditional process of decision-making (that is, the process identified in para (a)) then that process must be complied with. Where there is no traditional process of decision-making, s 251B(b) comes into play. Two points about s 251B(b) have been noted in the authorities. First, the paragraph envisages two steps, namely, the native title claim group agrees to the process whereby a decision authorising a person to make an application is made, and then the making of the decision itself: Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 790 at [42] per Emmett J. Secondly, the paragraph does not include the word "all". There will clearly be cases where it will not be possible to secure the agreement of each and every member of the native title claim group. For example, members of a native title claim group may include infants, those who are mentally defective and those whose whereabouts are unknown. In recognition of this practical reality, it has been said that there will be no defect in the authorisation where all members of the native title claim group are given a reasonable opportunity to take part in the decision-making process: Lawson on behalf of the 'Pooncarie' Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 ; Moran v Minister for Land and Water Conservation for the State of New South Wales (2000) 5(2) AILR 61 at 69 [40].


case_title: McKenzie v South Australia [2005] FCA 22 ; (2005) 214 ALR 214


case_title: Moran v Minister for Land and Water Conservation for the State of New South Wales (2000) 5(2) AILR 61


case_title: Reid v State of South Australia [2007] FCA 1479


case_title: Risk v National Native Title Tribunal [2000] FCA 1589


case_title: Tilmouth v Northern Territory of Australia [2001] FCA 820 ; (2001) 109 FCR 240


case_title: Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 790


case_text: In terms of Australian jurisprudence, the lawfulness in particular circumstances of a practice within public administration of delegates of a responsible Minister or permanent head or equivalent such as the Commissioner authorising subordinates to exercise delegated powers in their name finds recognition at ultimate appellate level in O'Reilly v State Bank of Victoria Commissioners [1983] HCA 47 ; (1982-1983) 153 CLR 1 at 12-14 per Gibbs CJ, Murphy J agreeing in this regard and at 30-33 per Wilson J. It is also the subject of an influential advisory opinion given by Brennan J in his Honour's then capacity as President of the Administrative Appeals Tribunal in Re Reference under Ombudsman Act s 11 (1979) 2 ALD 86. These, in turn, give local recognition to a principle of public law in the United Kingdom in relation to the administration of large Departments of State which has come to be known as "the Carltona principle", so named for a leading authority on the subject in that country, Carltona Ltd v Commissioners of Works [1943] 2 All E R 560. These and other authorities on the subject are helpfully collected and discussed in Aronson, Dyer and Groves, Judicial Review of Administrative Action , 3rd Edition, at pp 310-318. 43 I am relieved from considering whether authorisation in accordance with the Carltona principle was possible at all in relation to the making of a DPO because it was not submitted that the power to make a DPO, though described in Poletti's Case (at 160) as a "severe intrusion into a person's liberty, privacy and freedom of movement", was of such a nature as to require the decision personally to be made by the Commissioner or a delegate. It was accepted by the Appellant that it was permissible for the authorised person to decide to make the DPO with that decision being the act of the delegate. 44 The submission made on behalf of Mr Pattenden was that, accepting that the regime of delegation and authorisation was lawfully possible, it was not permissible for the authorised person, in turn, to consign substantive aspects of the making of the decision to subordinates. It was, rightly, no part of that submission that it was impermissible for an authorised person such as Mr Benson, having made a decision to make a DPO, to consign to a subordinate consequential, wholly procedural, clerical or "ministerial" tasks such as the affixing of a facsimile of the Deputy Commissioner's signature to the DPO or the communication to Mr Pattenden of the making of the DPO. Rather, the submission was that, when one examined the facts of this case, the decision as made and evidenced by the DPO was not that of Mr Benson in all key respects. 51 For the Commissioner, the submission was advanced that, in a relative sense, the assessment debt and the credits which were inserted were minor. That, with respect, is an unattractive submission. Assuming, as the parties have, that the nature of the power to make a DPO admits of the application of the Carltona principle at all, it nonetheless remains a power that entails a serious intrusion on a person's freedom of movement. There is therefore every reason to expect that the non-procedural aspects of the decision will be made only by the authorised officer. Mr Benson never made a decision to make a DPO in respect of the taxation liability specified in the purported DPO of 21 May 2008. The decision to insert a different taxation liability in that order was that of unauthorised subordinates. 52 I have no reason to doubt that, when Mr Sivasubramaniam affixed the Deputy Commissioner's signature to the DPO which issued to Mr Pattenden, he did so in good faith. It was nonetheless not only an insubordinate act but an unauthorised one. In so doing, he presumed that on 21 May 2008, knowing of the further taxation liability and of the credits, Mr Benson would remain of the view that the making of a DPO was appropriate. Like comment may be made in respect of the actions of whomever it was in "Debt Management" who presumed, without authority, to insert into the draft of the DPO liabilities and credits or payments of which Mr Benson was unaware when he made the decision to make a DPO on 21 April 2008. The addition of the additional taxation liability and of the further payments or credits was not a procedural step. Neither, in light of that, was the affixing of the facsimile of the Deputy Commissioner's signature to a DPO in that form. 53 What Mr Benson's subordinates have done is to conflate two features of the DPO regime. Section 14S contemplates the making of a DPO in respect of a taxation liability. It is the amount of that liability which must be inserted into the DPO. Once a DPO has been made: (a) it remains in force until it is revoked or until it is set aside by a court: s 14S(2) of the TAA; and (b) s 14T of the TAA then has effect.


case_text: Upon the production and tender of the authenticated copies of the amended and other assessments, that Mr Pattenden was subject to a taxation liability became a given in this appeal. Section 177 of the ITAA36 operated "to change what would otherwise be the operation of the relevant laws of evidence": Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32 ; (2008) 82 ALJR 1177 at 1191, [65] . In these circumstances and to adapt, in light of subsequent legislative changes to the forums in which taxation appeals or reviews are heard, language employed by Lee J of the New South Wales Supreme Court in 1985 in Winter v Commissioner of Taxation (1985) 16 ATR 977 at 981, one of the first appeals of the present kind, it is not for a court entertaining an appeal against a DPO to usurp the function of the Federal Court or the Administrative Appeals Tribunal when deciding an appeal against or, as the case may be, when reviewing, an objection decision in respect of an assessment. There was, even in 1985, nothing new in such a conclusion. A like position prevailed by virtue of the effect of s 177(1) of the ITAA36 in respect of recovery related proceedings arising under the earlier regime for the restriction of the departure from Australia of taxation debtors: Re Scottish Loan & Finance Co Ltd (1944) 44 SR (NSW) 461 at 466-467 (Nicholas CJ in Eq).


case_text: Having reflected on the language employed in s 14S(1)(b) of the TAA and on what was said of that provision by Young J in Dalco v Commissioner of Taxation (1987) 19 ATR 443 at 447-448 (later endorsed by Einfeld J in Edelsten v Commissioner of Taxation (1989) 85 ALR 226 at 230) and by Pincus J (as his Honour then was) in Skase v Commissioner of Taxation [1991] FCA 226 ; (1991) 32 FCR 206 , at 209 and 211, Jessup J in Troughton v Deputy Commissioner of Taxation (2008) 166 FCR 9 at 17, [22] [23] recently offered the following summary of how that provision falls to be construed: 22 It follows that s 14S(1)(b) should be read not literally, but as though it referred to a belief by the Commissioner (on reasonable grounds) that it was desirable that the person not leave Australia without discharging the tax liability or making the arrangements there referred to. Thus it is not to be taken as a given that, in every case, the departure of the person from Australia will make it unlikely, or at least less likely, that the tax liability will be discharged, or that the ability of the Commissioner to recover the tax will be impaired. These are things which must be considered by the Commissioner in every case. The purpose of s 14S, and accordingly a central purpose of Part IVA , is not the prevention of persons (owing tax) from leaving Australia simpliciter: it is the prevention of such persons from leaving Australia where, in the Commissioner's belief reasonably arrived at, the recovery of tax would or might thereby be impaired. 23 In that result, at least so far as revealed by s 14S, the general scope and objects of Part IVA of the Administration Act are as contended for by both sides in the present case. As contended for by the Commissioner, they are the protection of the revenue. As contended for by the applicant, they are the prevention of persons (owing tax) from leaving Australia where that would affect the recoverability thereof.


case_text: At the time when the submission was made the appeal to the High Court from the Queensland Court of Appeal's submission had yet to be decided. Shortly after I reserved my decision on this appeal, the High Court in Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd [2008] HCA 41 ( Broadbeach Properties ) unanimously reversed the decision of the Queensland Court of Appeal, thereby exposing a false line of Queensland authority the origins of which may be traced back via Willemse Family Co Pty Ltd v Deputy Commissioner of Taxation [2003] 2 Qd R 334 to Re Softex Industries Pty Ltd; Softex Industries Pty Ltd v Commissioner of Taxation (2001) 187 ALR 448. I therefore invited the parties to make such further submissions as they may be advised in relation to the relevance of the objection. 114 For Mr Pattenden, the submission was that the existence of an objection remained relevant with it being put that Broadbeach Properties concerned a provision which deemed a company to be insolvent whereas the present, as with an order for the winding up of a company or a sequestration order against the estate of a debtor concerned a change in status, in this case "the fundamental right to freedom of movement". Further, the focus of the "residual discretion" seemed to change from that said to be possessed by the Court to one said to be possessed by the Commissioner. The Commissioner maintained his position that the existence of the objection was not a relevant consideration. 115 Just what purpose is served by the words, "in its discretion" in s 14X of the TAA is moot. It is, for example, difficult to envisage a circumstance in which, even assuming that they bespeak a "residual discretion", a court which had concluded that reasonable grounds did not exist for the belief referred to in s 14S(1)(b) of the TAA would do anything other than set the DPO aside. Likewise, if each of the questions inherent in an appeal against the making of a DPO were resolved against the appellant, it is difficult to envisage how any order other than the dismissal of the appeal might be made. In the event that all existing tax liabilities had been paid, that there were no prospective tax liabilities and that the Commissioner refused to revoke the DPO under s 14T, the appropriate course would be to challenge the adverse revocation decision, not to institute or further to prosecute an appeal against a DPO the making of which satisfied each of the three questions derived from Poletti's Case in the hope of nonetheless securing a favourable exercise of a "residual discretion" from a court. 116 Further and more fundamentally, as the Full Court reminded in Poletti's Case (supra, at 157), "[F]ederal courts or other courts exercising federal jurisdiction exercise only the judicial power of the Commonwealth, and do not act administratively or exercise administrative or executive powers by, for example, substituting their own discretion for the discretion of the original decision-maker". It is the Commissioner, not the Judiciary, who administers the TAA. Whatever the words, "in its discretion" mean, they do not offer a basis for any consideration of the merits of an objection in the face of the engagement of s 177(1) of the ITAA36 by appropriate tender of duly authenticated copies of the assessments concerned. In that circumstance, for reasons given above, the tax liability is a given. While, as an administrator, it would not be an "irrelevant consideration" (as opposed to being a "relevant consideration") for the Commissioner, if so disposed, to consider the merits of an objection in deciding whether to make a DPO, it is not for a court to do that on an appeal, even assuming that there is a "residual discretion". In this regard, this particular submission of Mr Pattenden is subversive of s 177(1) of the ITAA36 and seeks to resurrect what I have described as a false line of authority. I reject it.


case_text: The Commissioner is entitled to raise alternative assessments. What he is not entitled to do is twice or more to recover tax in respect of the same income. The prevailing position was summarised and pertinent authorities were collected by Brennan J (as his Honour then was) in Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23 ; (1994-1995) 183 CLR 168 at 202: The appropriateness of alternative assessments to tax of two taxpayers in respect of the same item of income was recognized in a dictum of this Court in Deputy Commissioner of Taxation v. Moorebank Pty. Ltd. And the courts, if not the Commissioner, can diminish the difficulty of concurrent assessments by ensuring that there is no double recovery of tax. The co-existence of tax liabilities arising from concurrent assessments is entirely consistent with the operation of s 177(1). If the Commissioner employs s 177(1) in a proceeding to recover tax from taxpayer A, the liability of that taxpayer cannot be avoided by pointing to an outstanding assessment against taxpayer B. Section 177(1) operates as between the Commissioner and the taxpayer served with the notice of assessment in a proceeding between them and the notice of assessment issued to another taxpayer does not qualify or affect the operation of s 177(1). (Footnote references omitted) See also to like effect in that same case the reasons for judgment of Dawson J at p 216-217 and of Toohey J at p 228. The relevant root authority is Richardson v Commissioner of Taxation [1932] HCA 67 ; (1932) 48 CLR 192. 25 Had Crown Insurance paid the deemed assessments prior to the making of the DPO and either this fact not drawn to the attention of Mr Benson or if it had and its implications had not been taken into account in considering the extent to which Mr Pattenden's tax liability had thereby been discharged, there may have been a basis for the submission which came not to be pressed but it is unnecessary to decide the point. The mere fact that Mr Benson was unaware that deemed assessments existed in respect of Crown Insurance had no impact on the reaching of a conclusion that Mr Pattenden was subject to a taxation liability that had not been wholly discharged. I consider below whether there is any other ramification of his ignorance of the deemed assessments. 26 There was no suggestion that bad faith on the part of the Commissioner or his staff attended the issuing of the amended assessments to Mr Pattenden in January 2008. The production and tender in evidence of the authenticated copies of those amended assessments and the other assessment establishes conclusively in this appeal that those assessments were duly made and that the amount and all particulars of each assessment are correct: s 177(1) ITAA36.


case_outcome: distinguished

case_text: Two authorities were principally relied upon, Din v Minister for Immigration and Multicultural Affairs (1997) 147 ALR 673 (Wilcox J) and passages in the dissenting judgment of Mason J (as his Honour then was) in O'Reilly's Case, supra. Din's Case though was determined on a basis not relied upon for Mr Pattenden i.e. that the nature of the statutory power and administrative necessity were not such as to make it impractical for decisions personally to be made by the Minister and his appointed delegates. The dissent of Mason J in O'Reilly's Case was influenced by similar considerations. 46 The authorities relied upon do not directly support the submission, which is not to say that it lacks merit. The essential point advanced was that, in permitting a decision by an authorised officer to make a DPO in the name of the delegate, the law did not thereby allow the authorised officer to give a blanket authority to an unauthorised officer to affix, at some uncertain time in the future, the signature of the delegate to a DPO in respect of whatever the total tax liability of the recipient might then be and irrespective of whatever other changes may have occurred in the interval. 47 Paragraph 14S(1)(a) uses the indefinite article to qualify "tax liability". "Tax liability" is defined by s 2 of the TAA to mean "a liability to the Commonwealth arising under, or by virtue of, a taxation law". In turn, s 2 defines "taxation law" by reference to the definition of that term in the Income Tax Assessment Act 1997 (Cth) (ITAA97). Section 995.1 of the ITAA97 provides: "taxation law" means: (a) an Act of which the Commissioner has the general administration (including a part of an Act to the extent to which the Commissioner has the general administration of the Act); or (b) regulations under such an Act (including such a part of an Act).


case_title: Edelsten v Commissioner of Taxation (1989) 85 ALR 226


case_text: Whether reasonable grounds existed for the holding of the requisite belief is "an objectively determined postulate", Poletti's Case, at 161. The following passage from the joint judgment of the Full Court of the High Court in George v Rockett [1990] HCA 26 ; (1990) 170 CLR 104 at 112 definitively states the relevant law: When a statute prescribes that there must be "reasonable grounds" for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. That was the point of Lord Atkin's famous, and now orthodox, dissent in Liversidge v. Anderson [1941] UKHL 1 ; [1942] AC 206: see Nakkuda Ali v. M.F. De S. Jayaratne [1951] AC 66 , at pp 76-77; Reg. v. I.R.C.; Ex parte Rossminster [1979] UKHL 5 ; [1980] AC 952 , at pp 1000, 1011, 1017-1018; Bradley v. The Commonwealth [1973] HCA 34 ; (1973) 128 CLR 557 , at pp 574-575; W.A. Pines Pty. Ltd. v. Bannerman (1980) 41 FLR 169, at pp 180-181; [1980] FCA 79 ; 30 ALR 559 , at pp 566-567. That requirement opens many administrative decisions to judicial review and precludes the arbitrary exercise of many statutory powers: see, for example, Attorney-General v. Reynolds [1980] AC 637. Therefore it must appear to the issuing justice, not merely to the person seeking the search warrant that reasonable grounds for the relevant suspicion and belief exist. 59 Put in the context of an appeal under s 14V, what this means is that it is for the appellant to prove that, viewed objectively and on the material before the decision-maker or otherwise then available, reasonable grounds for the requisite belief did not exist. 60 The submission to Mr Benson recommending the making of a DPO in respect of Mr Pattenden put the following version of what were said to be "material facts & findings" and made the following comments: Material Facts & Findings • Mr Pattenden was issued with Notices of Amended Assessment (for $4,316,142) and Penalty Notices (amounting to $2,133,242) on 25/01/08. • Mr Pattenden's current consolidated account balance is $7,786,500 Dr. • When contacted by an advanced (High Value Debt) Recovery ATO Officer, Mr Craig Duly (TAG; on 03/03/08) stated that he would lodge an objection against the total debt in 1-2 weeks time. • After the 1-2 weeks had expired, the ATO office re-contacted Mr Duly on 26/03/08. Mr Duly stated that he not yet contacted Mr Pattenden's solicitor, who was tasked to prepare the objection. • On 28/03/08, Mr Duly stated that he not yet contacted Mr Pattenden's solicitor, who was tasked to prepare the objection. • As on 11/04/08, there is no record of an objection being received anywhere in the ATO. Mr Duly is also not contactable. • A second Interim Decision Summary (Position Paper) was issued by facsimile and by post on 4/4/08. • In the above correspondence, the ATO provided a reply by date/timeframe of 09/05/08 for Mr Pattenden to provide comments and any additional information or evidence. • The second Interim Decision Summary proposed ITR amendments and penalties of a further $1.69 million. • During the interview of 18/05/07, Mr Pattenden advised that both his luxury home units (in RUNAWAY BAY, QLD) had been sold two weeks prior to 18/05/07. The units are cumulatively worth at least $2 million. • Mr Pattenden previously sold a portion of his equity in his associated ACBF Group in July 2001 for $1 million. • Mr Pattenden reportedly sold his racehorses at a significant loss. • In his letter of 31/10/07, Mr Hughes advised that Mr Pattenden had now ceased all involvement in the ACBF Group, other than his shareholding. By virtue of this statement, Mr Hughes conceded that Mr Pattenden maintained substantial business ties (directorships and shareholdings) in Australia in the recent past. • Also in the recent past, Mr Pattenden has made numerous trips in and out of Australia. • In light of all of the above, I believe that this evidence shows Mr Pattenden is in the process of divesting himself of his Australian assets and is removing them from our jurisdiction. Due to this behaviour together with the fact that he holds a British passport, he also represents a flight risk. • I also specifically make mention of my earlier minute of 2/12/07 that Mr Pattenden knew conclusively that his PAYG(W) obligations under the TAA 1953 and intentionally chose to disregard them in the 2001 FY. • In his responses of 09/01/08 and 25/01/08, Mr Duly has neither refuted nor provided any evidence to the contrary. Other Relevant comments: • Mr Pattenden holds the remaining 80 shares (valued at $4 million) in ACBF Group Holdings Pty Ltd. • I hypothesize that Mr Duly's delays in lodging an objection may be strategy to delay legal action by the ATO to recover debts owed by Mr Pattenden. • Mr Pattenden's noncompliant history clearly evidences his disregard for Income Tax and other laws. 93 I respectfully agree with that summary. In particular I prefer it to the submission made on behalf of the Commissioner that the use of the word "desirable" in s 14S(1) meant that not much was required to warrant the making of a DPO. "Desirable" is certainly a word of lesser moment than "essential" but, to repeat an observation of Jessup J, "The purpose of s 14S ... is not the prevention of persons (owing tax) from leaving Australia simpliciter ". That was a purpose evident in the earlier regime. The word "desirable" must be read in the context of affecting recovery. Further, part of that context, are the words "reasonable grounds" which, as the passage quoted above from George v Rockett underscores, are a protection against the exercise of arbitrary power. The word "desirable" does not offer a basis for trivialising that protection. 94 Having regard to this approach to the construction of s 14S(1)(b) it is, in my opinion, relevant to take account when considering whether reasonable grounds for the requisite belief existed, to take account of the ability to enforce an Australian revenue debt in places for which a debtor might reasonably be expected to reside abroad, insofar as it may be possible to identify the same.