case_text: In Hartogen Energy Limited (In Liq) v The Australian Gas Light Company (1992) 36 FCR 557 at 568-569, Gummow J observed that the purpose for which a document is brought into existence is a question of fact, and the legal issue is whether the purpose of supplying the material to the legal adviser accounts for the existence of the material. His Honour accepted that the relevant "purpose" will ordinarily be that of the maker of the documents, but his Honour also observed that privilege is attracted where the person who calls the document into existence does so in the bona fide belief that litigation will probably ensue. By way of example, his Honour referred to situations where solicitors commission the provision of a technical report with the consequence that the relevant intention will not be that of the report's author but the solicitor who requests it. Privilege in a copy document may therefore arise where a person requests that the original document be copied for his or her own purpose of providing legal advice or assistance. 31 The principles summarised by Gummow J in Hartogen 36 FCR at 568-569 were affirmed and applied by Batt JA in the Victorian Court of Appeal in Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority (2002) 4 VR 332 at 338, with whom Charles and Callaway JJA agreed. In that case, the reports in question were commissioned by the solicitors. His Honour considered that the relevant purpose included the intention of a person under whose direction the relevant document is brought into existence. 33 Where it is necessary to determine the purpose for which a copy document has come into existence, it is appropriate to identify some person or entity from whom that purpose can be elicited. The authorities refer to "the maker" of the relevant document a description which, in the circumstances of copy documents, could be interpreted literally to mean the person who actually carries out the physical task of copying. To limit the concept of "purpose" to such a person is clearly too restrictive, and would run contrary to the authorities which refer to the purpose of the person who "authorised", "ordered" or "procured" the creation of a copy document, or "called the document into existence". In addition, some authorities regard as relevant the purpose of the person at whose "request" a document comes into existence. An example of such a person is a legal adviser who requests an expert or third party to provide a report for use in litigation: see Hartogen 36 FCR at 568-569. 34 In principle, it is not easy to see why the purpose of a lawyer who acts for a party should not be relevant, or indeed in some cases controlling, where he or she requests another person to provide copy documents for that particular purpose. In such a case the circumstances may indicate, when taken together with the terms of the request, or by clear implication from the request, that the documents are required for the dominant purpose of providing legal advice or assistance. In such a case, an accession to the request (by copying the documents) can properly be treated as being for the purpose of the legal adviser who called the documents into existence. 35 In my opinion, the copy documents produced by the ACCC in response to the requests by ABL come within the privilege which applies in respect of copy documents produced for legal advice or assistance or for use in reasonably anticipated legal proceedings. As in the present circumstances, where the evidence is that documents are requested by a solicitor solely for such a purpose, and the request is complied with by the third party without any qualification, it can be reasonably inferred that the copy documents were made in order to comply with the request and to carry out the purpose (be it either expressed or implied from the circumstances) for which the request was made. There is no evidence in this case to indicate that the ACCC had any other motive or purpose in making the copies available except to comply with the request by ABL. This conclusion applies in respect of all copy documents requested by ABL orally or in writing in relation to the ACCC proceeding, including those produced under any Notice to Produce issued by ABL to the ACCC. 36 In light of the above reasons, it is appropriate that Jarra Creek should pay the costs attributable to the determination of this issue relating to the privilege claim in respect of the copy documents. 37 Jarra Creek seeks an order that, to the extent that the Visy parties succeed in their privilege claims which were the subject of Issue 4 above, leave should be granted to Jarra Creek to subpoena the ACCC. Although the Visy parties do not oppose the granting of such leave, the ACCC submits that leave should not be granted: (a) until the privilege claims which were the subject of Issue 4 are determined; and (b) because it is not appropriate for Jarra Creek to subpoena documents from the ACCC simply because it has been unsuccessful in obtaining those documents from the Visy parties by way of discovery. 38 In my view, it is appropriate to grant leave to issue the subpoenas. The request for leave is not opposed by the Visy parties, and the form of subpoena proposed by Jarra Creek is specific and certain in its terms. Accordingly, leave to issue the subpoena should be granted immediately, and not delayed as the ACCC contends. 39 By order 2 of its Amended Notice of Motion Jarra Creek sought an order that further discovery be granted. This order was intended to compel the Visy parties to discover and produce for inspection documents and categories of documents which were listed in two schedules to the Amended Notice of Motion.


case_outcome: considered

case_text: The principles summarised by Gummow J in Hartogen 36 FCR at 568-569 were affirmed and applied by Batt JA in the Victorian Court of Appeal in Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority (2002) 4 VR 332 at 338, with whom Charles and Callaway JJA agreed. In that case, the reports in question were commissioned by the solicitors. His Honour considered that the relevant purpose included the intention of a person under whose direction the relevant document is brought into existence.


case_outcome: related

case_text: Aspects of the background to this matter have been briefly discussed in my previous judgments: see Jarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2006] FCA 1802 ; Jarra Creek Central Packing Shed Pty Ltd v Amcor Ltd [2007] FCA 1559 ; and Jarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2008] FCA 391. I set out below in short compass some additional background information relevant to this application.


case_title: Jarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2007] FCA 1559


case_title: Jarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2008] FCA 391


case_outcome: followed

case_text: The word "address" bears many meanings: see, for example, those collected in Sheen v Burke [1993] 1 VR 584 at 586. The meaning to be attributed to the word as it appears in s 222AOF(1) of the Act , must be discerned from the legislative context in which it appears. Section 222AOF is a facilitative provision. When read with s 28A of the Acts Interpretation Act , it provides for various methods by which the notices contemplated by s 222AOE may be served on directors who the Commissioner of Taxation considers are liable to pay penalties when a company fails to meet its statutory obligations. One method of service is the sending of notices by prepaid post to "an address" that "appears" from returns lodged by the relevant company with the ASC to be the director's place of residence or business. Service would be deemed to be effected even if the notice is not received by the director: Deputy Commissioner of Taxation v Gruber (1998) 43 NSWLR 271 at 277. Evidence by a director that he or she has not received a notice served in accordance with a provision such as s 28A or s 29 of the Acts Interpretation Act does not constitute proof of non delivery: Fancourt v Mercantile Credits Ltd [1983] HCA 25 ; (1983) 154 CLR 87 at 96-97.


case_text: The applicant was correct not to press this argument. It was bound to fail for the reasons given by Santow JA in Deputy Commissioner of Taxation v Nercessian [2006] NSWCA 268 at [22] - [30] . 16 The application should be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate: Dated: 9 February 2007 Counsel for the Applicant: Mr M O'Connor Solicitor for the Applicant: Maddens Lawyers Counsel for the Respondent: Ms D Harding Solicitor for the Respondent: Australian Taxation Office Date of Hearing: 7 February 2007 Date of Judgment: 9 February 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/76.html


case_title: Mercantile Credits Ltd [1983] HCA 25 ; (1983) 154 CLR 87


case_outcome: referred to

case_text: Notwithstanding the infelicities of language which beset the proposed amended application and the procedural problems to which it gives rise, it was clear from her written submissions that there were two grounds on which the applicant sought to rely in order to avoid liability to pay the penalties referred to in the notices. They were that the "address" appearing on the various notices and on the envelopes in which they were posted did not constitute an "address" within the meaning of the Act and that the Australian Securities Commission ("ASC") documents to which the respondent had resort for the purpose of ascertaining the applicant's "address" were not "ASC documents" within the meaning of s 222AOF of the Act . The parties were agreed that the determination of these two points would avoid unnecessary delay and expense and agreed that the Court should hear argument and resolve them on a final basis. The applicant contended and the respondent conceded that the Court had jurisdiction to entertain the application under s 39B(1A)(c) of the Judiciary Act . There was a justiciable controversy between the parties as to whether or not a statutory precondition to the recovery by the respondent of penalties from the applicant had been satisfied. If the precondition had not been satisfied no obligation to make payments would have arisen and the applicant would have been immune from any liability to pay the penalties: c.f. Felton v Mulligan [1971] HCA 39 ; (1971) 124 CLR 367 at 374, 408, 416; Guss v Commissioner of Taxation [2006] FCAFC 88 ; (2006) 152 FCR 88 at 91, 103.


case_title: Guss v Commissioner of Taxation [2006] FCAFC 88 ; (2006) 152 FCR 88


case_title: Sheen v Burke [1993] 1 VR 584


case_outcome: cited

case_text: His Honour found that these grounds effectively invited the Court to undertake a review of the merits of the appellant's application and 'to make findings on her claim different from the findings which were made by the Tribunal'. His Honour found correctly that the Court could not engage in merits review and that findings of fact were uniquely within the jurisdiction of the Tribunal: SZKRL at [10] [11]; see Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272. No error is disclosed in his Honour's finding that the grounds pleaded by the appellant in her application failed to demonstrate any jurisdictional error on the part of the Tribunal. 12 His Honour noted further that at the hearing before him the appellant also raised an allegation that the Tribunal's finding 'was not reasonable' because she was a genuine Falun Gong practitioner: SZKRL at [9]. His Honour found that this ground effectively amounted to the appellant expressing 'emphatic disagreement with the Tribunal's findings and decision'. His Honour found that such a complaint again invited impermissible merits review and could not succeed. For the reasons outlined at [11] above, no error is apparent in this approach. 13 To the extent that the ground sought to allege that 'there was some illogicality or irrationality in the Tribunal's decision', his Honour found that there was no proper basis for such an allegation. His Honour found that the basis of the Tribunal's decision was 'clear', 'reasoned' and was 'open to it on the evidence before it' and that no jurisdictional error was disclosed: SZKRL at [12] [13]. 14 Accordingly, his Honour found that no jurisdictional error had been demonstrated on the part of the Tribunal and dismissed the application with costs: SZKRL at [14]. 15 The appellant was required to file and serve a notice of appeal within 21 days from the date the judgment appealed from was pronounced: Order 52 rule 15(1) of the Federal Court Rules 1979 ('the Rules'). His Honour delivered ex tempore reasons for judgment at the conclusion of the hearing on 26 October 2006. Accordingly, the appellant had to file and serve a notice of appeal on or before 16 November 2007. Instead, she filed an application for an extension of time to file and serve a notice of appeal on 28 November 2007, some 12 days outside the prescribed appeal period. 18 The appellant has not advanced any explanation or any evidence for her inability to file a notice of appeal by 16 November 2007. In her affidavit sworn on 26 November 2007 and filed on 28 November 2007 in support of her application for an extension of time, the appellant simply restates her factual claims for refugee status and asserts that she disagrees with the decision of the Tribunal and that the 'RRT did not consider I am genuine Falun Gong Practitioner'. These matters amount to impermissible merits review and do not advance the appellant's case in any meaningful sense: Wu Shan Liang , ibid; NAHI v Minister for Immigration & Multicultural Affairs [2004] FCAFC 10.


case_title: Jess v Scott (1986) 12 FCR 187

case_text: The appellant now seeks an order pursuant to O 52 r 15(2) of the Rules, which provides that the Court or a Judge for 'special reasons may at any time give leave to file and serve a notice of appeal'. Accordingly, O 52 r 15(2) imposes a requirement that 'special reasons' exist (as to the nature of the power and what is meant by 'special reasons' see: Jess v Scott (1986) 12 FCR 187 at 195 196 per Lockhart, Sheppard and Burchett JJ), and even if that condition is fulfilled, it leaves a discretion to grant or refuse leave to appeal.


case_title: Minister for Immigration & Multicultural Affairs v Roda Kabail [1998] FCA 1320

case_text: Whether or not special reasons is established will always be a question of fact and degree in each case: Minister for Immigration & Multicultural Affairs v Roda Kabail & Ors [1998] FCA 1320 per Tamberlin J. However, the special reasons criterion is not established in the present case. The appellant has failed to assert any basis that could be seen as meeting the 'special reasons' requirement.


case_text: The appellant has not advanced any explanation or any evidence for her inability to file a notice of appeal by 16 November 2007. In her affidavit sworn on 26 November 2007 and filed on 28 November 2007 in support of her application for an extension of time, the appellant simply restates her factual claims for refugee status and asserts that she disagrees with the decision of the Tribunal and that the 'RRT did not consider I am genuine Falun Gong Practitioner'. These matters amount to impermissible merits review and do not advance the appellant's case in any meaningful sense: Wu Shan Liang , ibid; NAHI v Minister for Immigration & Multicultural Affairs [2004] FCAFC 10.


case_text: The Minister submits that, even if the 'special reasons' requirement is found to have been met (which he does not concede), the application ought still be refused on discretionary grounds. In his submissions, factors to be taken into account in the exercise of the discretion include the importance of the question sought to be raised by the proposed appeal, the bona fides of the proposed appeal and the prima facie strength of the proposed grounds of appeal: Howard v Australian Electoral Commission [2000] FCA 1767 per Branson J at [7]. The proposed appeal must have sufficient prospect of success to make it just that it should proceed: W105/99A v Minister for Immigration & Multicultural Affairs [2001] FCA 1786 at [13] ; WACF v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCA 1385 per Carr J at [30].


case_title: W105/99A v Minister for Immigration & Multicultural Affairs [2001] FCA 1786


case_title: WACF v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCA 1385


case_text: In this appeal, the Appellant contends that Federal Magistrate Driver erred ( SZGZQ v Minister for Immigration & Anor [2006] FMCA 1203) in dismissing on 17 August 2006 an Application for Review of a decision of the Refugee Review Tribunal ('the Tribunal') dated 16 January 2004 and delivered on 10 February 2004 affirming a decision of the Minister's Delegate refusing the Appellant's application for protection visa pursuant to the Migration Act 1958 (Cth) ('the Act'). 2 The Appellant's grounds of appeal are these. 3 First, the Appellant contends that Federal Magistrate Driver erred by failing to find that the Tribunal failed to apply the correct test in determining the degree of satisfaction required to be established in order to find a well-founded fear of persecution for a Convention reason (Article 1A(2) of the 1951 Convention Relating to the Status of Refugees ('the Convention') as amended by the 1967 Protocol Relating to the Status of Refugees ('the Refugees' Protocol')) as contended for by the Appellant. As a subset of that notion, the Appellant contends that since the Tribunal could not be satisfied that the Appellant held a well-founded fear of persecution in the absence of further information from the Appellant, the Tribunal ought to have called for further information from the Appellant.


case_text: The approach adopted by the Tribunal is entirely consistent with the observations of their Honours in SJSB v Minister for Immigration & Multicultural Affairs [2004] FCAFC 255 at [15] , per Ryan, Jacobson and Lander JJ; Minister for Immigration & Multicultural Affairs v VSAF of 2003 [2005] FCAFC 73 at [17] , per Black CJ, Sundberg and Bennett JJ and Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259. The Appellant contends that the Tribunal ought to have exercised a statutory power to seek further information from the Appellant before reaching a conclusion as to whether it could be satisfied of the relevant matters. Section 424 of the Act is an enabling provision. It does not create a mandatory obligation, in terms.


case_title: Minister for Immigration & Multicultural Affairs v VSAF of 2003 [2005] FCAFC 73


case_title: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259


case_outcome: discussed

case_text: 481(3) is very similar to s 76(1) of the Trade Practices Act 1974 (Cth) (the TP Act). The joint submissions note that in Minister for the Environment and Heritage v Greentree (No 3) [2004] FCA 1317 ( Greentree ), Sackville J said that the appropriate approach to imposing pecuniary penalties under s 481(3) of the EPBC Act is the same as that under s 76(1) of the TP Act, subject to any necessary adaptations specific to the relevant type of damage caused. The parties contended that I should adopt his Honour's approach, and I shall do so. The joint submissions note that the Court has considered the amount of the pecuniary penalty to be imposed pursuant to the EPBC Act in several recent cases. In Greentree , a corporate entity contravened s 16(1) of the EPBC Act by taking the deliberate action of clearing, ploughing and subsequently sowing wheat that had a significant impact on the ecological character of a declared Ramsar wetland. The maximum penalties were the same under s 16(1) of the EPBC Act as apply to the present conduct. Sackville J found that the contravening conduct was deliberate, as the respondents (as a corporate entity and its director) carried out the contravening conduct when they were well aware that any unauthorised action had a significant impact on the ecological character of the Ramsar wetlands site and would constitute a contravention of the EPBC Act. The deliberate conduct was found to be more than an isolated act of the kind that might occur as the result of an impulsive error of judgment, and that it was planned conduct. The nature and extent of the contraventions of the EPBC Act suggested that substantial pecuniary penalties were warranted. The personal respondent was ordered to pay a pecuniary penalty of $150,000, and the corporate respondent was ordered to pay $300,000. The parties jointly submit that the Court should consider the first respondent's conduct as more serious than the relevant conduct in Wilson and Warne , but less serious than that in Greentree . Whilst that analysis may reflect the comparative degrees of culpability, it is not clear how the comparison leads to the proposed and agreed penalty. The submissions further note that the proposed penalty equates to approximately 20% of the maximum penalty which could be imposed upon an individual pursuant to s 18(3) of the EPBC Act. The parties jointly submit that this is relevant to the assessment of penalty in light of the second respondent's role in the conduct of the first respondent and that any penalty upon the first respondent is essentially a penalty upon the second respondent. They draw support for that contention from the decision in Greentree . I do not accept that contention. Greentree relevantly concerned charges against a company and its director where the company was effectively a "one-man" company, and the personal respondent was its sole director and sole shareholder. Sackville J noted, at [78]: I infer that Mr Greentree will bear the burden of any diminution of Auen's assets that will result from the imposition of a pecuniary penalty on the company. It is appropriate to take that fact into account in order to prevent Mr Greentree being punished, in effect, twice over: Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2) [2002] FCA 559 ; (2002) 190 ALR 169 , at 182 [45], per Finkelstein J; Australian Securities and Investments Commission v Adler [2002] NSWSC 483 ; (2002) 42 ACSR 80 , at 116-117 [131]-[132], per Santow J. On the other hand, Auen has been involved in a deliberate contravention of s 16(1) of the EPBC Act . The contravening conduct was undertaken in Auen's commercial interests. It is also necessary to bear in mind that the maximum penalties that can be imposed on a corporation are ten times larger than the penalties that can be imposed on individuals who contravene the EPBC Act . The overall pecuniary penalty should obviously be no less than if Auen, a corporation, had been the sole contravenor. On the contrary, the overall penalty should reflect the fact that Mr Greentree, as well as Auen, has contravened s 16(1) of the EPBC Act . His Honour first fixed the pecuniary penalty payable by the personal respondent. It was about 27% of the maximum. He then said at [82]: Having regard to the maximum penalty applicable to a contravention by an individual, I think that a pecuniary penalty of $150,000 should be imposed on Mr Greentree. Had Auen been the only contravenor, taking into account its status as a private company and the higher maximum penalty applicable to a contravention by a corporation, I would have imposed a penalty in the order of $400,000. Having regard to the desirability of avoiding penalising Mr Greentree twice over, I think that Auen should pay a penalty of $300,000. In my view, the total penalty of $450,000 is appropriate in the circumstances of the case. That does not amount to his Honour determining the penalty imposed on the company as if it were an individual. The contrary is the case. His Honour recognised that a significant penalty should be imposed on the company having regard to the higher applicable maximum. The amount he would have ordered was, however, reduced somewhat for the reasons explained in that passage. In this matter, there is no penalty to be imposed on the second respondent. It is appropriate to impose a penalty on the first respondent as a corporation, having regard to the applicable maximum. It is the sole contravenor against whom a penalty is sought. It is not appropriate to adopt the lesser maximum applicable to individuals because the second respondent, its managing director, was the person who decided upon and arranged for the clearance of the vegetation on its behalf. Of course, that is not to say its individual circumstances should not be considered. It would be appropriate to take into account in the present circumstances that any penalty imposed on the first respondent is effectively a penalty imposed on the second respondent, if the second respondent were also the subject of a pecuniary penalty, in order to avoid the second respondent being punished "twice over". Here, the applicant no longer seeks orders against the second respondent. In these proceedings, the second respondent will not personally be the subject of a pecuniary penalty. Another factor raised by the parties The joint submissions refer to the fact that the first respondent did not make a profit from reselling the property, and submit this is a relevant factor in assessing the appropriate pecuniary penalty. In Greentree , Sackville J noted at [65] that: It is true that the evidence does not suggest that either Mr Greentree or Auen reaped a substantial financial reward from the development of the Windella Ramsar site. That is a factor to take into account. His Honour made that remark because it was part of the picture about why those respondents took the actions they did. He went on to note that the contravening conduct was motivated by commercial considerations. It may be a relevant factor to take into account, if the first respondent undertook the land clearing for commercial reasons, that it did or did not profit by virtue of the contravening conduct. However, I do not consider that the fact that, since the contravening conduct, the property has been resold at a loss is of any especial significance. There may be many reasons for that. It is unlikely to have become less valuable because its cropping potential was increased by the contravening conduct. There is certainly no evidence on that topic. It may be that it was resold at a lower value because the market generally had fallen. It may be that the first respondent had disposed of certain water rights attaching to it. It may be (although it is unlikely) that the property was allowed to run down. Without evidence, the reason for the lower resale value of the property is simply unexplained. If the focus is on the profitability of cropping the illegally cleared land, again there is no evidence to indicate whether the particular cleared land was cropped at a profit or a loss, compared to the more generally available cropping area.


case_text: Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,152-3 French J (as he then was) identified the following additional considerations as being relevant to the level of pecuniary penalty imposed, including: the size of the contravening company; the degree of power it has, as evidenced by its market share and ease of entry into the market; the deliberateness of the contravention and the period over which it extended; whether the contravention arose out of the conduct of senior management or at a lower level; whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention; and whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention. Obviously, the second of those matters is inapt in relation to a contravention of s 18(3) of the EPBC Act, and possibly so too is the fifth of those matters.


case_text: NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 ( NW Frozen Foods ) and J McPhee & Son (Aust) Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 365 ; (2000) 172 ALR 532 , the Full Court of this Court approved French J's list and added further relevant considerations, including whether the conduct was systematic, deliberate or covert. The Court's role, as the parties accepted, is not simply to accept and adopt the position agreed between the parties. In NW Frozen Foods [1996] FCA 1134 ; (1996) 71 FCR 285 , concerning the imposition of a civil penalty under the TP Act, a single judge declined to give effect to the civil penalty proposed in the minute of consent orders and the joint submissions of the parties, and imposed a more severe penalty. On appeal, Burchett and Kiefel JJ observed at 290-1: Since the decision in Trade Practices Commission v Allied Mills Industries Pty Ltd , it has been accepted that both the facts, and also views about their effect, may be presented to the Court in agreed statements, together with joint submissions by both the Commission and a respondent as to the appropriate level of penalty. Because the fixing of the quantum of a penalty cannot be an exact science, the Court, in such a case, does not ask whether it would without the aid of the parties have arrived at the precise figure they have proposed, but rather whether their proposal can be accepted as fixing an appropriate amount. There is an important public policy involved. When corporations acknowledge contraventions, very lengthy and complex litigation is frequently avoided, freeing the courts to deal with other matters, and investigating officers of the Australian Competition and Consumer Commission to turn to other areas of the economy that await their attention. At the same time, a negotiated resolution in the instant case may be expected to include measures designed to promote, for the future, vigorous competition in the particular market concerned. These beneficial consequences would be jeopardised if corporations were to conclude that proper settlements were clouded by unpredictable risks. A proper figure is one within the permissible range in all the circumstances. The Court will not depart from an agreed figure merely because it might otherwise have been disposed to select some other figure, or except in a clear case. These observations are capable of applying to the making of orders reflecting negotiated outcomes in respect of civil penalty provisions of enactments other than the TP Act: Warne; Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72.


case_text: NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 ( NW Frozen Foods ) and J McPhee & Son (Aust) Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 365 ; (2000) 172 ALR 532 , the Full Court of this Court approved French J's list and added further relevant considerations, including whether the conduct was systematic, deliberate or covert.


case_text: other two cases to which my attention was drawn are not so directly relevant. They relate to different offences. In Minister for the Environment and Heritage v Wilson [2004] FCA 6 ( Wilson ), the respondent set a net in the Great Australian Bight Marine Park and caught a shark, contrary to s 354(1) of the EPBC Act. The Minister and the Respondent jointly submitted that the appropriate pecuniary penalty to be imposed was $12,500 (the maximum civil penalty for an individual was $55,000). Selway J decided that level of penalty was appropriate. On the facts put by the respondent and not disputed by the applicant, the respondent knew that he was close to the border of the Park and knew there was a risk that his vessel might drift into the Park, but did not know that in fact his vessel had done so. Further, it was a first offence, was not deliberate and was the result of negligence, bordering on recklessness. In Minister for Environment and Heritage v Warne [2007] FCA 599 ( Warne ), the respondent was the skipper of a vessel which carried out commercial fishing within the boundaries of a reserve contrary to s 354(1)(a) and (f) of the EPBC Act. Whilst inside the boundaries, the vessel took a species of fish classified as a native species under the EPBC Act. The parties filed an agreed statement of facts and made joint submissions in support of a pecuniary penalty of $25,000 (the maximum civil penalty for an individual was $55,000). The parties characterised the respondent's incursions into the wildlife park as "reckless". Siopis J ordered that the respondent pay the agreed penalty. The parties jointly submit that the Court should consider the first respondent's conduct as more serious than the relevant conduct in Wilson and Warne , but less serious than that in Greentree . Whilst that analysis may reflect the comparative degrees of culpability, it is not clear how the comparison leads to the proposed and agreed penalty.


case_text: other two cases to which my attention was drawn are not so directly relevant. They relate to different offences. In Minister for the Environment and Heritage v Wilson [2004] FCA 6 ( Wilson ), the respondent set a net in the Great Australian Bight Marine Park and caught a shark, contrary to s 354(1) of the EPBC Act. The Minister and the Respondent jointly submitted that the appropriate pecuniary penalty to be imposed was $12,500 (the maximum civil penalty for an individual was $55,000). Selway J decided that level of penalty was appropriate. On the facts put by the respondent and not disputed by the applicant, the respondent knew that he was close to the border of the Park and knew there was a risk that his vessel might drift into the Park, but did not know that in fact his vessel had done so. Further, it was a first offence, was not deliberate and was the result of negligence, bordering on recklessness. In Minister for Environment and Heritage v Warne [2007] FCA 599 ( Warne ), the respondent was the skipper of a vessel which carried out commercial fishing within the boundaries of a reserve contrary to s 354(1)(a) and (f) of the EPBC Act. Whilst inside the boundaries, the vessel took a species of fish classified as a native species under the EPBC Act. The parties filed an agreed statement of facts and made joint submissions in support of a pecuniary penalty of $25,000 (the maximum civil penalty for an individual was $55,000). The parties characterised the respondent's incursions into the wildlife park as "reckless". Siopis J ordered that the respondent pay the agreed penalty. The parties jointly submit that the Court should consider the first respondent's conduct as more serious than the relevant conduct in Wilson and Warne , but less serious than that in Greentree . Whilst that analysis may reflect the comparative degrees of culpability, it is not clear how the comparison leads to the proposed and agreed penalty. The Court's role, as the parties accepted, is not simply to accept and adopt the position agreed between the parties. In NW Frozen Foods [1996] FCA 1134 ; (1996) 71 FCR 285 , concerning the imposition of a civil penalty under the TP Act, a single judge declined to give effect to the civil penalty proposed in the minute of consent orders and the joint submissions of the parties, and imposed a more severe penalty. On appeal, Burchett and Kiefel JJ observed at 290-1: Since the decision in Trade Practices Commission v Allied Mills Industries Pty Ltd , it has been accepted that both the facts, and also views about their effect, may be presented to the Court in agreed statements, together with joint submissions by both the Commission and a respondent as to the appropriate level of penalty. Because the fixing of the quantum of a penalty cannot be an exact science, the Court, in such a case, does not ask whether it would without the aid of the parties have arrived at the precise figure they have proposed, but rather whether their proposal can be accepted as fixing an appropriate amount. There is an important public policy involved. When corporations acknowledge contraventions, very lengthy and complex litigation is frequently avoided, freeing the courts to deal with other matters, and investigating officers of the Australian Competition and Consumer Commission to turn to other areas of the economy that await their attention. At the same time, a negotiated resolution in the instant case may be expected to include measures designed to promote, for the future, vigorous competition in the particular market concerned. These beneficial consequences would be jeopardised if corporations were to conclude that proper settlements were clouded by unpredictable risks. A proper figure is one within the permissible range in all the circumstances. The Court will not depart from an agreed figure merely because it might otherwise have been disposed to select some other figure, or except in a clear case. These observations are capable of applying to the making of orders reflecting negotiated outcomes in respect of civil penalty provisions of enactments other than the TP Act: Warne; Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72.


case_text: Court generally looks favourably upon negotiated settlements: Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375. It is in the public interest for the Court to make orders in litigation concerning the EPBC Act on the terms that have been agreed between parties so as to encourage parties to assist the applicant in investigations and achieve negotiated settlements. The Court has recognised that, in addition to savings in time and costs, there is a public benefit in imposing agreed pecuniary penalties where appropriate as parties would not be disposed to reach such agreements where there are unpredictable risks involved.


case_text: Court's role, as the parties accepted, is not simply to accept and adopt the position agreed between the parties. In NW Frozen Foods [1996] FCA 1134 ; (1996) 71 FCR 285 , concerning the imposition of a civil penalty under the TP Act, a single judge declined to give effect to the civil penalty proposed in the minute of consent orders and the joint submissions of the parties, and imposed a more severe penalty. On appeal, Burchett and Kiefel JJ observed at 290-1: Since the decision in Trade Practices Commission v Allied Mills Industries Pty Ltd , it has been accepted that both the facts, and also views about their effect, may be presented to the Court in agreed statements, together with joint submissions by both the Commission and a respondent as to the appropriate level of penalty. Because the fixing of the quantum of a penalty cannot be an exact science, the Court, in such a case, does not ask whether it would without the aid of the parties have arrived at the precise figure they have proposed, but rather whether their proposal can be accepted as fixing an appropriate amount. There is an important public policy involved. When corporations acknowledge contraventions, very lengthy and complex litigation is frequently avoided, freeing the courts to deal with other matters, and investigating officers of the Australian Competition and Consumer Commission to turn to other areas of the economy that await their attention. At the same time, a negotiated resolution in the instant case may be expected to include measures designed to promote, for the future, vigorous competition in the particular market concerned. These beneficial consequences would be jeopardised if corporations were to conclude that proper settlements were clouded by unpredictable risks. A proper figure is one within the permissible range in all the circumstances. The Court will not depart from an agreed figure merely because it might otherwise have been disposed to select some other figure, or except in a clear case. These observations are capable of applying to the making of orders reflecting negotiated outcomes in respect of civil penalty provisions of enactments other than the TP Act: Warne; Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72.


case_text: for IPS does not dispute, for the purpose of this application, the finding made by his Honour that there is a serious question to be tried or the finding on balance of convenience. However, Mr Arthur contends that orders 2 and 3 were made in breach of the principles which govern the grant of injunctive relief under s 80 of the Trade Practices Act 1974 (Cth) as recently considered and explained by a Full Court in Foster v Australian Competition and Consumer Commission [2006] FCAFC 21 ; (2006) 149 FCR 135. In particular, Mr Arthur submits that it was not appropriate to make orders 2 and 3 because there was no sufficient nexus demonstrated between the contravention of s 52 of the Trade Practices Act and the conduct which is the subject of orders 2 and 3. Mr Arthur concedes that the grant of interlocutory injunctive relief was an exercise of his Honour's discretion and that it is necessary for him to point to an error of principle in the making of orders of 2 and 3. He submits that whilst it would have been open to his Honour to find a nexus, his Honour failed to do so. Alternatively he submits that there was no evidence from which his Honour could draw that conclusion. It seems to me that the learned Federal Magistrate must be taken in [24] and [25] of his reasons to have found that there was a threat to continue to make the implied representation which his Honour found to have been made in [11] and which gave rise to the exercise of the learned Federal Magistrate's discretion to grant injunctive relief. I'm satisfied that there was evidence, in particular in the affidavit of Ms Klitogiannis, to support that finding. Whilst it would certainly have been open to the learned Federal Magistrate to decline to make orders 2 and 3; see for example Australian Rugby Union Ltd v Hospitality Group Pty Ltd (2000) 173 ALR 702 at [152] to [153], I can see no error of principle by the learned Federal Magistrate in deciding upon the evidence before him that orders 2 and 3 were appropriate within the principles referred to by the Full Court in Foster . Accordingly, the order I will make is that leave to appeal be refused. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson J. Associate: Dated: 18 October 2006 Counsel for the Applicant: R J Arthur Solicitor for the Applicant: Bradley Allen Lawyers Counsel for the Respondent: B J Salmon QC with C Besemeres Solicitor for the Respondent: J S O'Connor Harris & Co Date of Hearing: 18 October 2006 Date of Judgment: 18 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1392.html


case_title: Australian Rugby Union Limited v Hospitality Group Pty Limited (2000) 173 ALR 702

case_text: it would certainly have been open to the learned Federal Magistrate to decline to make orders 2 and 3; see for example Australian Rugby Union Ltd v Hospitality Group Pty Ltd (2000) 173 ALR 702 at [152] to [153], I can see no error of principle by the learned Federal Magistrate in deciding upon the evidence before him that orders 2 and 3 were appropriate within the principles referred to by the Full Court in Foster . Accordingly, the order I will make is that leave to appeal be refused. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson J. Associate: Dated: 18 October 2006 Counsel for the Applicant: R J Arthur Solicitor for the Applicant: Bradley Allen Lawyers Counsel for the Respondent: B J Salmon QC with C Besemeres Solicitor for the Respondent: J S O'Connor Harris & Co Date of Hearing: 18 October 2006 Date of Judgment: 18 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1392.html


case_text: somewhat similar point is made in respect of GSS' claim against the third parties. It is said that there may be claims at the suit of GSS that are different from any claim that could be prosecuted by a trustee whose claims against third parties would ordinarily be confined to allegations of procuring a breach of trust or knowingly being in receipt of trust property. Mr Porch says that GSS makes claims in law other than for breach of trust. Reference was made to Morlea Professional Services Pty Ltd v Richard Walter Pty Ltd (in liq) [1999] FCA 1820 ; (1999) 96 FCR 217. Although the conditions in s 237(2) have been satisfied, I feel some disquiet about allowing the action by GSS to proceed. This is not because I have formed any view about the merits of its case. I am satisfied that Mr Porch genuinely believes that GSS has claims that ought to proceed. However, I am troubled by whether there is any utility in allowing the action to proceed with GSS as a plaintiff. My concern is that GSS may add nothing to the case. By this I mean that if the allegations against the Deans and their co-defendants are made good, the claim by Landmark will succeed and there is little, if anything, additional that GSS could recover in a separate action. Conversely if the claim by Landmark fails, it is difficult to see how the action by GSS could succeed having regard to the almost complete overlap of the allegations against the defendants. My concern is heightened by the fact that when at the hearing I identified my concern, counsel for Mr Porch did not explain how the GSS Unit Trust would be better off in a financial sense if the action by GSS goes ahead.


case_text: The tender was supported by Sirtex Medical Limited (Sirtex) which referred to observations made by Nettle J in Victoria University of Technology v Wilson (2004) 60 IPR 392 that (at [210]): ... a fiduciary's position only inhibits him or her in respect of business opportunities that the principal is actively pursuing or in which the principal might reasonably be expected to be interested. As Professor Glover put it in the first edition of his work on commercial equity: "characterisation of an opportunity as a fiduciary opportunity overlaps with the characterisation of whether the scope of fiduciary duties extends to the opportunity in question". 7 Objection was taken to the tender by the University on the basis that Dr Gray was seeking to put in evidence of a tendency on the part of the University to act in a particular way or to have a particular state of mind in relation to the commercialisation of inventions. This was evidence which, it was said, was covered by s 97 of the Evidence Act 1995 (Cth). Evidence covered by that section which defines "the tendency rule" is admissible only upon prior reasonable notice in writing to the other parties. Moreover it is not admissible if the Court considers that it would not, either by itself or having regard to other evidence, have significant probative value. The notice requirement can be waived by the Court under s 100(1). Also relevant for present purposes are the provisions of s 135 of the Evidence Act which provide: The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing; or (c) cause or result in undue waste of time. 8 I have perused the documents contained in the two folders. They relate to the resolution of a particular dispute about the ownership of intellectual property and do not appear on the face of them to support general inferences about the tendency or capacity of the University at the relevant time in relation to the commercialisation of intellectual property. They potentially open up a wide field of inquiry about the basis upon which the settlement reached in the case to which they relate turned upon an assessment of the strengths and weaknesses of the University's case or more general considerations. To the extent that the documents go to tendency in the sense covered by s 97 , I do not consider that they have significant probative value in the present case. To the extent that they are said to go to capacity, I consider that their probative value is substantially outweighed by the danger that they might cause or result in undue waste of time. 9 The tender of the documents will be refused. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 31 May 2007 Counsel for the Applicant: Mr T Tobin QC, Mr M Green and Mr D Pratt Solicitor for the Applicant: Jackson McDonald Counsel for the First Respondent: Mr M Bennett and Mr I Freeman Solicitor for the First Respondent: Lavan Legal Counsel for the Second Respondent: Solicitor for the Second Respondent: Mr JD Elliott SC, Mr EJC Heerey and Mr J Emmett DLA Phillips Fox Date of Hearing: 29 May 2007 Date of Judgment: 31 May 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/843.html


case_outcome: applied

case_text: In Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, the Full Court (Sheppard, Burchett and Heerey JJ) indicated at p 398 that the tests normally to be applied in determining whether leave for interlocutory decisions should be granted are whether the decision at first instance was attended with sufficient doubt to warrant it being reconsidered, and whether substantial injustice would result if leave were refused, supposing the decision at first instance was wrong. 25 For the above reasons, I granted leave, being of the view that both of the tests set out in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR had application in the circumstances of the present matter. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender J. Associate: Dated: 30 May 2006 Counsel for the Applicants, (the Respondents to the application for leave): Mr Richard Perry SC Solicitor for the Applicant: Lynch & Co Counsel for the Respondents, (the Applicants to the application for leave): Mr David Jackson QC Mr Paul McQuade Solicitor for the Respondent: McCullough Robertson Date of Hearing: 24 May 2006 Date of Judgment: 30 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/661.html


case_text: The submissions by counsel for the respondents referred to the judgment of Branson J in The Airtourer Co-operative Ltd v Millicer Aircraft Industries Pty Ltd [2004] FCA 1400 , where her Honour there indicated that s 56 of the Federal Court of Australia Act 1976 (Cth) does not indicate any predisposition to or bias towards the granting of an order against an impecunious litigant. Counsel for the respondents later said: 'The discretion is completely unfettered and ought to be exercised without any predisposition.' However, counsel for the respondents also submitted: '... The whole purpose of the Act, and, indeed, the underlying thesis behind section 1335 of the Corporations Law, is to ensure that vexatious claims are not brought by companies having no assets, so that a person in the position of a respondent to just such a claim ought not be penalised by the fact that it can be an empty shell of a company as the applicant ...'. 11 At the conclusion of those submissions, the primary judge said: 'What I would like to do now is give the parties my preliminary thoughts on this matter. My preliminary thoughts in this matter is that this is not ...' And counsel for the applicants for security said: 'Your Honour, could I just reply on one point, please?' He continued to make a submission, and the primary judge then said: 'What I would like to do now, as I said, is to give the parties my preliminary views of where I think this is going. My preliminary view is that perhaps this is not a preliminary view. This is a final view. Impecuniosity is no bar to litigation. There's no question about that, and that has been made clear in cases such as Spender J's decision very recently. Further, I am of the view that this is not vexatious litigation. In my opinion, there is a sound case here being argued by the applicants. I would have been somewhat inclined not to make any order in relation to security for costs at all in relation to this matter. I note, however, that the applicants the respondents to this notice of motion have made an offer of $100,000, and I would have thought that that would have been a reasonable offer in the circumstances of this case ...'. Those observations seem to indicate two reasons why security was not ordered: First, ' Impecuniosity is no bar to litigation .'; and secondly, ' ...this is not vexatious litigation ... there is a sound case here being argued by the applicants.' 12 Section 1335 of the Corporations Act 2001 (Cth) provides: ' 1335 Costs (1) Where a corporation is plaintiff in any action or other legal proceeding, the court having jurisdiction in the matter may, if it appears by credible testimony that there is reason to believe that the corporation will be unable to pay the costs of the defendant if successful in his, her or its defence, require sufficient security to be given for those costs and stay all proceedings until the security is given. (2) The costs of any proceeding before a court under this Act are to be borne by such party to the proceeding as the court, in its discretion, directs.' 13 The condition to the exercise of the discretion to order security was met by the evidence in this case.


case_outcome: distinguished

case_text: As far as I can see from the evidence, there was no suggestion that the ordering of security in this case would stifle the litigation, a circumstance which distinguishes it from the factual position in Staff Development & Training Centre Pty Ltd v The Commonwealth of Australia [2005] FCA 1643 , a case referred to in the course of submissions to the primary judge.


case_text: In Crystal Dawn Pty Ltd v Redruth Pty Ltd [1998] QCA 373 , Muir J, with whom Pincus JA and Williams J agreed, said at par [14]: 'The learned primary judge's failure to give reasons will, if raised by the applicants in their notice of appeal, be a matter for consideration on the appeal but in my view, it is relevant to the question of whether there should be an extension of time within which to appeal. Muir J noted: 'It is well established that there is a duty on the part of judicial tribunals to give reasons for their decisions and that failure to give reasons which ought to be given amounts to appellable error ...' His Honour continued: '[16] In Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1966] 1 Qd R 462 at 483, McPherson and Davies JJA observed "The extent of the duty to give reasons is affected by the function that is served by the giving of reasons. The requirement is considered an incident of the judicial process, the hallmark of which is, as McHugh JA stressed in Soulemezis (1987) 10 NSWLR 247, 278-279,' the quality of rationality', which is what serves to distinguish a judicial decision from an arbitrary decision. The giving of reasons is thus an aspect of judicial accountability, which was identified by his Honour in Soulemezis as the second of the three purposes served by the judicial duty of giving of reasons. The first, his Honour said, is that 'it enables the parties to see the extent to which their arguments have been understood and accepted, as well as the basis of the judge's decision'. The third is that judicial reasoning provides a precedent for the decision of future cases. See, to similar effect, what was said by Mahoney JA in the same case: Soulemezis, at 269, referred to with approval in Sun Alliance Insurance Ltd v Massoud [1988] VR 8, 19, in the Full Court of Victoria." [17] The obligation to give reasons may be affected by the way in which proceedings are conducted. For example, the primary judge may indicate that it is not proposed that reasons be given and there may be a tacit acceptance of this by counsel for the parties. For a discussion of qualifications to the general duty to give reasons see the observations of Mahoney P in Kiama Constructions v Davey (1996) 40 NSWLR 639 at 640. In this case there is no suggestion that there was anything in the way in which the matter was conducted which would lead to the conclusion that the normal principles or expectations in respect of the giving of reasons would not apply. Without wishing to limit the general obligation to give reasons, even on interlocutory matters, I note that the decision under consideration had the potential to prevent the applicants from pursuing the action and was thus one in respect of which reasons should have been given. [18] In my view it is undesirable that there be a judicial determination adverse to a litigant which significantly affects the litigant's rights without reasons being provided for that determination. For that reasons alone I would grant the extension of time. [19] I do not consider the failure on the part of the applicants' counsel at first instance to request reasons to be a matter which negates the concern I have just expressed. The bearing of the absence of reasons on the outcome of the appeal will be a matter for the Court which hears the appeal.'


case_title: Frigo v Culhaci , unreported, New South Wales Court of Appeal, 17 July 1998

case_text: In Frigo v Culhaci , an unreported judgment of the Court of Appeal of New South Wales, (Mason P, Sheller JA and Sheppard AJA) of 17 July 1998 set aside the grant of a Mareva injunction by a District Court judge, in part because of the failure to give adequate reasons. The Court said: 'The orders made below must be set aside for a number of reasons: 1 Absence of Reasons It is the practice of the Supreme Court for reasons to be given, albeit sometimes in short form, after the hearing of a contested motion for an interlocutory injunction. S46(2)(c) of the District Court requires no less. More importantly, the general duty to give reasons, and its rationale as including proper exercise of rights of appeal, is well established: see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Beale v Government Insurance Office (NSW) (1997) 25 MVR 373.'


case_title: Morris v Hanley [2001] NSWCA 374

case_text: In Morris v Hanley [2001] NSWCA 374 , Heydon JA (with whom Foster and Rolfe AJJA agreed) said, at par 22: '[22] The duty of judges is to give reasons for the directions and orders they make must be lower where interlocutory orders affecting matters of practice and procedure are involved than they are where orders are made after a trial. That must be so if for no other reason than that litigation would clog up to the point of stagnation if full reasons had to be given for the tens or hundreds of interlocutory orders which many primary judges make in a week in busy trial courts. However, though applications for security for costs are matters of practice and procedure, they can have a significant impact on the substantive rights of plaintiffs, because if the order is made, the plaintiff may not be able to provide security for costs where one of the grounds for the application is that plaintiff's lack of funds. If so, that will prevent the plaintiff being able to have a judicial examination of the complaints made on the merits. Accordingly it would not be right to hold that there is no duty, or only a very exiguous duty, on a primary judge to give reasons for making an order as to security for costs. [23] The primary judge in giving his reasons for the orders under appeal in many respects went well beyond what was called for by the duty to give reasons. The reasons for judgment he provided, particularly given that they were ex tempore, set out in considerable detail his approach. However, there is force in the argument of the plaintiff that insufficient reasons were given in relation to the question of the defendants' delay ... [24] ... Sometimes what might otherwise be said to be a deficiency in the reasons of a primary judge can be compensated for by a clear explanation in the course of argument by the primary judge for the outcome. However, that cure cannot be resorted to here. This Court does not have before it any transcript of the oral argument before the primary judge, and it has before it no affidavit indicating anything he may have said in the course of argument which would explain how he took the defendants' delay into account. [25] In those circumstances there is an error of principle in the primary judge's approach. 18 It seems to me that what was held to be, in that case, a failure to give adequate reasons must be the 'high water mark' of a judge's obligation to give reasons for interlocutory orders. I think there is room for the view that there was a desired result on the appeal searching for a reason to make it. 19 In my opinion, it is cases like Morris v Hanley [2001] NSWCA 374 that support the view of trial judges that appellate judges can be likened to those who come down out of the hills after the battle is over and shoot the wounded. 20 Nevertheless it is clear that, even on interlocutory orders, there is a duty to give adequate reasons, which do not display error. 21 It is sufficient in respect of other aspects of the application for leave to indicate that in my opinion it is arguable that the conclusion of the primary judge in dismissing the application for security was tainted by misapplication of principle, and an improper interpretation of s 1335 of the Corporations Act 2001 (Cth) and s 56 of the Federal Court of Australia Act 1976 (Cth). In particular, it is arguable that principles dealing with the impecuniosity of a plaintiff who is a natural person, have no application in relation to corporations falling within s 1335.


case_text: The principles which apply in this situation are not in doubt. In Kovalev v Minister for Immigration [1999] FCA 557 ; (2000) 100 FCR 323 (" Kovalev ") at 326-328, French J explained the relevant principles: "In making a consent order the Court exercises judicial power. This is a power conferred upon it by the Parliament under Ch III of the Constitution of the Commonwealth. Its exercise is a public function and operates to bind the parties. Its public character applies to agreed orders disposing of private litigation between citizens or corporations and proceedings brought by or against governments and their agencies or public authorities. An order disposing of proceedings by consent must be self-explanatory as must any order. It is not appropriate to make an order of uncertain content or the content of which is to be derived from materials which are not on the public record. There is a fundamental difficulty where a court makes an order remitting a matter to a decision-maker or tribunal to be decided 'according to law' and the court itself is not informed of the nature of the error conceded. The court is then making an order without being apprised of its basis and proposed operation. To do so in my opinion is a purported, but not an actual exercise of judicial power. Moreover, in a practical sense the decision-maker or tribunal lacks the benefit of any binding direction from the court as to precisely what it is that the decision-maker or tribunal is required to do. In the present case the precise concession which led to the proposed consent order had not been communicated by the respondent to the applicant. The possibility arose that the matter could have been remitted to the Tribunal with the parties themselves not being ad idem as to the error of law which had led to the decision being set aside and which the Tribunal was required to rectify. And even if there had been such an agreement the terms of the order proposed would not have disclosed to the public what the parties had agreed should be its content. In the particular case where a tribunal decision is set aside, the Tribunal itself is not usually a party and has played no role in the negotiation of the agreement that it erred in law. A fortiori in that case the order must be clear and complete and the Court must be satisfied that it is appropriate. ... ... It is well-established that in making a consent order or indeed in accepting undertakings the Court must have regard to the limits of its power. The parties cannot, by consent, confer power on the Court to make orders which the Court lacks power to make Thomson Australian Holdings Pty Ltd v Trade Practices Commission ( 1981 ) [1981] HCA 48 ; 148 CLR 150 at 163. The question whether a consent order is to be made, is not concluded by a finding that it is formally within the power of the Court. In the exercise of its power the Court is not merely giving effect to the wishes of the parties, it is exercising a public function and must have regard to the public interest in doing so: see Australian Competition and Consumer Commission v Real Estate Institute (WA) Inc (1999) 161 ALR 79 at 86 and the authorities referred to there. It is important therefore that the Court itself addresses and is satisfied of the basis upon which its order is to be made and in particular where the order sets aside the decision of an official decision-maker or a tribunal. ... ... In the case of error of law attributed to a decision-maker or tribunal there is a particular public interest which requires the Court's specification of the error and its satisfaction that error occurred. It is also a substantial discourtesy for a court to overturn the decision of an official decision-maker and a fortiori that of a statutory tribunal without consideration of the error that leads to the decision being overturned or communication of the terms of that error to the decision-maker or tribunal. If such a determination is to be set aside on the basis that it has failed to apply or has misapplied the law whether substantive or procedural, there may potentially be some precedential impact in other like cases. To permit the principle underlying the order to be formulated only by the parties in their submissions to the decision-maker or the Tribunal leaves the content of that principle in the hands of the parties." As French J noted, Sackville J had adopted a similar approach in Sanchez v Minister for Immigration and Multicultural Affairs [1999] FCA 265. Subsequently, Stone J in Yulianti v Minister for Immigration and Multicultural Affairs [2001] FCA 142 agreed with the views expressed by French J and Sackville J. Her Honour observed in addition that the grounds for the making of the order can appear in the Court's reasons for judgment, rather than in the order itself. Similar views were expressed by RD Nicholson J in Xiao v Minister for Immigration [2001] FCA 459 ; (2001) 109 FCR 129. The principles explained by French J in Kovalev have been approved numerous times: see Re Allan and Repatriation Commission (2003) 77 ALD 140 at 144-145 [12]-[14]; Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 168 ; (2003) 132 FCR 93 at 110 [55] - [56] ; and WAKM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 730 at [5] .


case_title: Sanchez v Minister for Immigration and Multicultural Affairs [1999] FCA 265


case_title: Yulianti v Minister for Immigration and Multicultural Affairs [2001] FCA 142


case_title: Xiao v Minister for Immigration [2001] FCA 459 ; (2001) 109 FCR 129


case_title: Re Allan and Repatriation Commission (2003) 77 ALD 140


case_title: Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 168 ; (2003) 132 FCR 93


case_title: WAKM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 730


case_title: Peacock v Zyfert (1983) 48 CLR 549

case_text: I am also satisfied that the erroneous classification of the products amounts to an error of law. There has been some debate about whether a mistake as to the ordinary meaning of a word used in a statutory provision can of itself amount to an error of law. In Peacock v Zyfert (1983) 48 ALR 549 at 564-565, Lockhart J said: "I now turn to a submission made on behalf of the appellants that the question which was before the Customs for determination in this case was one of fact and that the primary judge erred in treating it as a question of law. Reliance was placed upon the principle that, where a word is an ordinary English word, its meaning is not a question of law and, accordingly, whether the facts of a given case fall within that meaning is a question of fact. Reference was made to Hope v Bathurst City Council (1980) 29 ALR 577 at 580-2; [1980] HCA 16 ; 144 CLR 1 at 6-8 (per Mason J); Blackwood Hodge (Aust) Pty Ltd v Collector of Customs (NSW) (No 2) (1980) 3 ALD 38 at 49-51 (per Fisher J) and at 55-6 (per Sheppard J); and Brutus v Cozens [1972] UKHL 6 ; [1973] AC 854, esp at 861 (per Lord Reid) where his Lordship said: 'The meaning of an ordinary word of the English language is not a question of law. The proper construction of a statute is a question of law. If the context shows that a word is used in an unusual sense the court will determine in other words what that unusual sense is. ... It is for the tribunal which decides the case to consider, not as law but as fact, whether in the whole circumstances the words of the statute do or do not as a matter of ordinary usage of the English language cover or apply to the facts which have been proved. If it is alleged that the tribunal has reached a wrong decision then there can be a question of law, but only of a limited character. The question would normally be whether their decision was unreasonable in the sense that no tribunal acquainted with the ordinary use of language could reasonably reach that decision.' In my opinion this principle has no application in this case. If taken to its logical conclusion the appellants' argument really asserts that it is for the Customs to say in each case whether any, and if so which, provision of the Tariff applies to particular goods. But it is not a question of the Customs simply determining whether particular goods fall within the meaning of ordinary English words. What the Customs would be deciding, if the appellants are correct, is whether the description of particular goods falls within particular chapters, items, sub-items, paragraphs and sub-paragraphs of the Tariff. It must be a question of law whether a given description of goods falls within a particular part of the Tariff. Here the question is what particular part of the relevant Schedule, if any, applies. This necessarily involves a question of construction of the Tariff and is a question of law: see Whitton v Falkiner [1915] HCA 38 ; (1915) 20 CLR 118, per Isaacs J (at 127)." See also Fox J at 555-556. 27 Subsequently, the issue was discussed at some length by Burchett J in Baxter Healthcare Pty Limited v Comptroller-General of Customs (1997) 72 FCR 467 (" Baxter Healthcare ") in a most helpful judgment. His Honour said at 471-472: "A preliminary point should be mentioned, since it is important, although little attention was paid to it in argument. Where there is a question whether something falls within a verbal description in a statute (as in a case raising the application of a tariff item), the answer may depend simply on findings of fact as to the meaning of the words constituting the description and as to the nature of the thing itself. With regard to the words, '[t]he question what is the meaning of an ordinary English word or phrase as used in [a] Statute is one of fact not of law': Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 137 per Jordan CJ. Nevertheless, once the nature of the thing has been found as a fact, whether it falls within the verbal description will, in many cases, be a question of law. For, in the first place, it may not be a matter of applying merely the ordinary English meaning of words or phrases, but of applying a meaning derived from the statute by a process of construction, which is a process of law: Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 10 per Mason J, with whose reasons Gibbs, Stephen and Aickin JJ stated their agreement. The principle that construction is a process of law has never been doubted, although the completeness of the proposition derived from it that '[t]he effect or construction of a term once its meaning or interpretation is established is a matter of law': Agfa-Gevaert Ltd v Collector of Customs (1994) 124 ALR 645 at 648 per Gummow J; Collector of Customs v Pozzolanic Enterprises Pty Ltd (at 287), and the relationship between that proposition and the proposition that the meaning of an ordinary word or phrase is a matter of fact, were left in some doubt when Agfa-Gevaert v Collector of Customs was reversed on appeal by the High Court: see Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1996) 186 CLR 389 at 395-397. Gummow J, in Agfa-Gevaert Ltd v Collector of Customs , also held (ibid) that it is a question of law 'whether the facts as found fall within the terms of the law as properly construed; to this there is the qualification that, where the statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts as found fall within those words, the decision as to whether they do so fall generally is a matter of fact'. His Honour added that the limitation 'generally' was required, even in this last case, 'because the law may use a word in an ordinary sense, but there may be a number of ordinary senses and it then is necessary to select that which is appropriate, and because whilst the word may have but one ordinary meaning that is imprecise, the word will take its colour from the context and that will require construction of the law, a lawyer's task. The result in such cases will be more than the matching of a set of facts with plain words'. The proposition that 'whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law' was stated to be sustained by '[m]any authorities' in the judgment of Mason J in Hope v Bathurst City Council (at 7). The same proposition was subsequently applied by Full Courts of this Court to cases where what was in issue was whether facts as found fell within the provision of a tariff item: Peacock v Zyfert (1983) 48 ALR 549; Rheem Australia Ltd v Collector of Customs (NSW) (1988) 78 ALR 285 at 293, 306."


case_text: In Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1996) 186 CLR 389 at 396-397, the High Court expressed reservations about the supposed distinction between the ordinary meaning of words, which is said to raise a question of fact, and the construction and effect of a term or provision which is said to raise a question of law. The Court said: "With respect this distinction seems artificial, if not illusory. The meaning attributed to individual words in a phrase ultimately dictates the effect or construction that one gives to the phrase when taken as a whole and the approach that one adopts in determining the meaning of the individual words of that phrase is bound up in the syntactical construction of the phrase in question. In R v Brown, a recent House of Lords decision, Lord Hoffmann said: 'The fallacy in the Crown's argument is, I think, one common among lawyers, namely to treat the words of an English sentence as building blocks whose meaning cannot be affected by the rest of the sentence ... This is not the way language works. The unit of communication by means of language is the sentence and not the parts of which it is composed. The significance of individual words is affected by other words and the syntax of the whole.' If the notions of meaning and construction are interdependent, as we think they are, then it is difficult to see how meaning is a question of fact while construction is a question of law without insisting on some qualification concerning construction that is currently absent from the law." However, the Court did not find it necessary to resolve this issue. 27 Subsequently, the issue was discussed at some length by Burchett J in Baxter Healthcare Pty Limited v Comptroller-General of Customs (1997) 72 FCR 467 (" Baxter Healthcare ") in a most helpful judgment. His Honour said at 471-472: "A preliminary point should be mentioned, since it is important, although little attention was paid to it in argument. Where there is a question whether something falls within a verbal description in a statute (as in a case raising the application of a tariff item), the answer may depend simply on findings of fact as to the meaning of the words constituting the description and as to the nature of the thing itself. With regard to the words, '[t]he question what is the meaning of an ordinary English word or phrase as used in [a] Statute is one of fact not of law': Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 137 per Jordan CJ. Nevertheless, once the nature of the thing has been found as a fact, whether it falls within the verbal description will, in many cases, be a question of law. For, in the first place, it may not be a matter of applying merely the ordinary English meaning of words or phrases, but of applying a meaning derived from the statute by a process of construction, which is a process of law: Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 10 per Mason J, with whose reasons Gibbs, Stephen and Aickin JJ stated their agreement. The principle that construction is a process of law has never been doubted, although the completeness of the proposition derived from it that '[t]he effect or construction of a term once its meaning or interpretation is established is a matter of law': Agfa-Gevaert Ltd v Collector of Customs (1994) 124 ALR 645 at 648 per Gummow J; Collector of Customs v Pozzolanic Enterprises Pty Ltd (at 287), and the relationship between that proposition and the proposition that the meaning of an ordinary word or phrase is a matter of fact, were left in some doubt when Agfa-Gevaert v Collector of Customs was reversed on appeal by the High Court: see Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1996) 186 CLR 389 at 395-397. Gummow J, in Agfa-Gevaert Ltd v Collector of Customs , also held (ibid) that it is a question of law 'whether the facts as found fall within the terms of the law as properly construed; to this there is the qualification that, where the statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts as found fall within those words, the decision as to whether they do so fall generally is a matter of fact'. His Honour added that the limitation 'generally' was required, even in this last case, 'because the law may use a word in an ordinary sense, but there may be a number of ordinary senses and it then is necessary to select that which is appropriate, and because whilst the word may have but one ordinary meaning that is imprecise, the word will take its colour from the context and that will require construction of the law, a lawyer's task. The result in such cases will be more than the matching of a set of facts with plain words'. The proposition that 'whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law' was stated to be sustained by '[m]any authorities' in the judgment of Mason J in Hope v Bathurst City Council (at 7). The same proposition was subsequently applied by Full Courts of this Court to cases where what was in issue was whether facts as found fell within the provision of a tariff item: Peacock v Zyfert (1983) 48 ALR 549; Rheem Australia Ltd v Collector of Customs (NSW) (1988) 78 ALR 285 at 293, 306." 30 The second qualification arises where there is uncertainty as to the meaning of a statutory word or expression, and that uncertainty can be resolved by construing the word according to its context. That process raises a question of law. Burchett J explained why this is so in the following passage at 473-474: "In such a case, a court or tribunal does not choose between different possible applications of the one equivocal or inexact statutory concept (for example, 'insulting') to an evaluation or an appreciation (in the French sense see 69 ALJ 984) of the facts, but chooses upon the principles of construction between possible concepts conveyed by the statutory expression. Of course, it is conceivable that a particular provision in an enactment will raise both kinds of problem. But Gummow J's remarks in Agfa-Gevaert Ltd v Collector of Customs seem to me to involve that, where the susceptibility of words and expressions to different meanings or shades of meaning is to be resolved by a process of construction of the statutory language in order to determine whether it embraces the facts found, the ultimate question is one of law. This accords with the view of Fullagar J in Hayes v Commissioner of Taxation (Cth) , with Hope at 10, and with the joint judgment of Sheppard and Burchett JJ in Australian National Railways Commission v Collector of Customs (SA) (1985) 8 FCR 264 at 277. In Collector of Customs v Agfa-Gevaert Ltd at 397, the joint judgment of the High Court refers to the principle 'that the determination of whether an "Act uses [an] expression ... in any other sense than that which they have [scilicet, it has] in ordinary speech" is always a question of law'. On that basis, logically it must also be a question of law, in a case where a statutory expression has several ordinary senses, whether it is used in a particular one of them. And as the joint judgment of Neaves, French and Cooper JJ in Pozzolanic Enterprises points out (at 288-289), uncertainties may require to be resolved by reference to a value judgment about the range of the Act, rather than a matching of the facts to the, or an, ordinary meaning of the words. Their Honours said: 'Although the words of the statute are construed according to their ordinary English meaning, that does not mean that their application to a set of facts is simply described as the matching of that set of facts with a factual description. There is necessarily a selection process involved. The range of relationships to which the words apply for the purpose of the Act depends upon a judgment about that purpose. The selection process involved is analogous to that used in determining what causal relationships between conduct and loss attract liability for the purpose of s 82 of the Trade Practices Act (1974) (Cth): see Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (No 2) (1987) 16 FCR 410 at 418-419; Munchies Management Pty Ltd v Belperio (1988) 58 FCR 274 at 286-288; 84 ALR 700 at 712-713. In the end this is not a process of fact finding. The facts are found. What is left is a value judgment about the range of the Act and that is a question of law.' This passage was referred to in the joint judgment of the High Court, without criticism, in Collector of Customs v Agfa-Gevaert Ltd at 395."


case_text: Subsequently, the issue was discussed at some length by Burchett J in Baxter Healthcare Pty Limited v Comptroller-General of Customs (1997) 72 FCR 467 (" Baxter Healthcare ") in a most helpful judgment. His Honour said at 471-472: "A preliminary point should be mentioned, since it is important, although little attention was paid to it in argument. Where there is a question whether something falls within a verbal description in a statute (as in a case raising the application of a tariff item), the answer may depend simply on findings of fact as to the meaning of the words constituting the description and as to the nature of the thing itself. With regard to the words, '[t]he question what is the meaning of an ordinary English word or phrase as used in [a] Statute is one of fact not of law': Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 137 per Jordan CJ. Nevertheless, once the nature of the thing has been found as a fact, whether it falls within the verbal description will, in many cases, be a question of law. For, in the first place, it may not be a matter of applying merely the ordinary English meaning of words or phrases, but of applying a meaning derived from the statute by a process of construction, which is a process of law: Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 10 per Mason J, with whose reasons Gibbs, Stephen and Aickin JJ stated their agreement. The principle that construction is a process of law has never been doubted, although the completeness of the proposition derived from it that '[t]he effect or construction of a term once its meaning or interpretation is established is a matter of law': Agfa-Gevaert Ltd v Collector of Customs (1994) 124 ALR 645 at 648 per Gummow J; Collector of Customs v Pozzolanic Enterprises Pty Ltd (at 287), and the relationship between that proposition and the proposition that the meaning of an ordinary word or phrase is a matter of fact, were left in some doubt when Agfa-Gevaert v Collector of Customs was reversed on appeal by the High Court: see Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1996) 186 CLR 389 at 395-397. Gummow J, in Agfa-Gevaert Ltd v Collector of Customs , also held (ibid) that it is a question of law 'whether the facts as found fall within the terms of the law as properly construed; to this there is the qualification that, where the statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts as found fall within those words, the decision as to whether they do so fall generally is a matter of fact'. His Honour added that the limitation 'generally' was required, even in this last case, 'because the law may use a word in an ordinary sense, but there may be a number of ordinary senses and it then is necessary to select that which is appropriate, and because whilst the word may have but one ordinary meaning that is imprecise, the word will take its colour from the context and that will require construction of the law, a lawyer's task. The result in such cases will be more than the matching of a set of facts with plain words'. The proposition that 'whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law' was stated to be sustained by '[m]any authorities' in the judgment of Mason J in Hope v Bathurst City Council (at 7). The same proposition was subsequently applied by Full Courts of this Court to cases where what was in issue was whether facts as found fell within the provision of a tariff item: Peacock v Zyfert (1983) 48 ALR 549; Rheem Australia Ltd v Collector of Customs (NSW) (1988) 78 ALR 285 at 293, 306." 28 Burchett J recognised that complexities can arise in the application of these principles, and for that reason he said that at least two qualifications should be added. 30 The second qualification arises where there is uncertainty as to the meaning of a statutory word or expression, and that uncertainty can be resolved by construing the word according to its context. That process raises a question of law. Burchett J explained why this is so in the following passage at 473-474: "In such a case, a court or tribunal does not choose between different possible applications of the one equivocal or inexact statutory concept (for example, 'insulting') to an evaluation or an appreciation (in the French sense see 69 ALJ 984) of the facts, but chooses upon the principles of construction between possible concepts conveyed by the statutory expression. Of course, it is conceivable that a particular provision in an enactment will raise both kinds of problem. But Gummow J's remarks in Agfa-Gevaert Ltd v Collector of Customs seem to me to involve that, where the susceptibility of words and expressions to different meanings or shades of meaning is to be resolved by a process of construction of the statutory language in order to determine whether it embraces the facts found, the ultimate question is one of law. This accords with the view of Fullagar J in Hayes v Commissioner of Taxation (Cth) , with Hope at 10, and with the joint judgment of Sheppard and Burchett JJ in Australian National Railways Commission v Collector of Customs (SA) (1985) 8 FCR 264 at 277. In Collector of Customs v Agfa-Gevaert Ltd at 397, the joint judgment of the High Court refers to the principle 'that the determination of whether an "Act uses [an] expression ... in any other sense than that which they have [scilicet, it has] in ordinary speech" is always a question of law'. On that basis, logically it must also be a question of law, in a case where a statutory expression has several ordinary senses, whether it is used in a particular one of them. And as the joint judgment of Neaves, French and Cooper JJ in Pozzolanic Enterprises points out (at 288-289), uncertainties may require to be resolved by reference to a value judgment about the range of the Act, rather than a matching of the facts to the, or an, ordinary meaning of the words. Their Honours said: 'Although the words of the statute are construed according to their ordinary English meaning, that does not mean that their application to a set of facts is simply described as the matching of that set of facts with a factual description. There is necessarily a selection process involved. The range of relationships to which the words apply for the purpose of the Act depends upon a judgment about that purpose. The selection process involved is analogous to that used in determining what causal relationships between conduct and loss attract liability for the purpose of s 82 of the Trade Practices Act (1974) (Cth): see Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (No 2) (1987) 16 FCR 410 at 418-419; Munchies Management Pty Ltd v Belperio (1988) 58 FCR 274 at 286-288; 84 ALR 700 at 712-713. In the end this is not a process of fact finding. The facts are found. What is left is a value judgment about the range of the Act and that is a question of law.' This passage was referred to in the joint judgment of the High Court, without criticism, in Collector of Customs v Agfa-Gevaert Ltd at 395." 39 At the very least, the examples in heading 3808 and the references to camphor and mosquito spirals and coils in sub-heading 3808.10.10 suggest that there is some ambiguity about the way in which the term insecticide is used in the heading. To adapt the language used by Burchett J in Baxter Healthcare , a legal choice must be made about possible concepts conveyed by the statutory expression, and in making that choice it is appropriate to take account of the intent and purpose of the Customs Tariff Act . In my opinion, it would have been permissible for the Tribunal to have regard to the Harmonised System Notes as an extrinsic aid to the interpretation of heading 3808. Where the language of a heading is ambiguous or susceptible to different interpretations, the Harmonised System Notes are an appropriate extrinsic aid to interpretation: Gardner Smith v Collector of Customs Victoria (1986) 66 ALR 377 at 383-384; Barry R Liggins Pty Ltd v Comptroller-General of Customs (1991) 103 ALR 565 at 571-573; and Toyota Tsusho Australia Pty Ltd v Collector of Customs [1992] FCA 282 at [22] - [30] .


case_text: I am also satisfied that the erroneous classification of the products amounts to an error of law. There has been some debate about whether a mistake as to the ordinary meaning of a word used in a statutory provision can of itself amount to an error of law. In Peacock v Zyfert (1983) 48 ALR 549 at 564-565, Lockhart J said: "I now turn to a submission made on behalf of the appellants that the question which was before the Customs for determination in this case was one of fact and that the primary judge erred in treating it as a question of law. Reliance was placed upon the principle that, where a word is an ordinary English word, its meaning is not a question of law and, accordingly, whether the facts of a given case fall within that meaning is a question of fact. Reference was made to Hope v Bathurst City Council (1980) 29 ALR 577 at 580-2; [1980] HCA 16 ; 144 CLR 1 at 6-8 (per Mason J); Blackwood Hodge (Aust) Pty Ltd v Collector of Customs (NSW) (No 2) (1980) 3 ALD 38 at 49-51 (per Fisher J) and at 55-6 (per Sheppard J); and Brutus v Cozens [1972] UKHL 6 ; [1973] AC 854, esp at 861 (per Lord Reid) where his Lordship said: 'The meaning of an ordinary word of the English language is not a question of law. The proper construction of a statute is a question of law. If the context shows that a word is used in an unusual sense the court will determine in other words what that unusual sense is. ... It is for the tribunal which decides the case to consider, not as law but as fact, whether in the whole circumstances the words of the statute do or do not as a matter of ordinary usage of the English language cover or apply to the facts which have been proved. If it is alleged that the tribunal has reached a wrong decision then there can be a question of law, but only of a limited character. The question would normally be whether their decision was unreasonable in the sense that no tribunal acquainted with the ordinary use of language could reasonably reach that decision.' In my opinion this principle has no application in this case. If taken to its logical conclusion the appellants' argument really asserts that it is for the Customs to say in each case whether any, and if so which, provision of the Tariff applies to particular goods. But it is not a question of the Customs simply determining whether particular goods fall within the meaning of ordinary English words. What the Customs would be deciding, if the appellants are correct, is whether the description of particular goods falls within particular chapters, items, sub-items, paragraphs and sub-paragraphs of the Tariff. It must be a question of law whether a given description of goods falls within a particular part of the Tariff. Here the question is what particular part of the relevant Schedule, if any, applies. This necessarily involves a question of construction of the Tariff and is a question of law: see Whitton v Falkiner [1915] HCA 38 ; (1915) 20 CLR 118, per Isaacs J (at 127)." See also Fox J at 555-556. 29 The first qualification arises where a statute uses a word whose meaning is clear but the word is inherently capable of more than one application or outcome in the circumstances of the case. In such a case, the question whether the statutory description is satisfied will often be simply a question of fact: see, for example, the discussion of Brutus v Cozens [1972] UKHL 6 ; [1973] AC 854 by Mason J in Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 7-8; and see also Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 at 14-15.