case_outcome: discussed

case_text: In Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 at 559 Goldberg J said that the concept of anticipated proceedings involves "the notion that there is a reasonable probability or likelihood that such proceedings will be commenced not that they will be but rather that more probably than not they will be." 55 The weight of authority now seems to favour the Mitsubishi "real prospect" test. If necessary, I would prefer that to the Safeway "more likely than not" test. However, for the reasons which will hereafter appear, I am satisfied that the higher standard has been met in the present case. 64 The law of legal professional privilege necessarily assumes that the privilege may, indeed usually will, arise before the actual commencement of litigation otherwise there would be no point in the concept of reasonable anticipation. Therefore, in applying that law to the ACCC it would be misleading to focus on the state of mind only of those who have the power to commence litigation on the Commission's behalf. Looking at the policy behind the law of legal professional privilege (cf the approach of Lord Hoffmann to the legislation in question in Meridian at 511), the protection needs to apply at a time when the prospect of litigation is less than certain (whether the Safeway or the Mitsubishi test applies). By this stage there is a need for frank and candid communication between client and lawyer, or other persons such as potential witnesses, on the subject matter of the litigation no less than there is when the litigation actually starts. The privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers: Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49 at [35] . The people who are supervising the actual work which generates the documents in question will not necessarily be the ones who can decide to commit the corporate body to litigation. However if, as matter of organisational reality, they are responsible for the work in question it will be appropriate to impute their state of mind to the corporation.


case_outcome: cited

case_text: Subsequent decisions have adopted a somewhat lower test. In Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59 ; (2002) 4 VR 332 at [19] Batt JA, with the concurrence of other members of the Victorian Court of Appeal, held that there must be a "real prospect" of litigation, as a distinct from a mere possibility, but it does not have to be more likely than not. In Microsoft Corporation v Ben Zhong Fan [2003] FCA 1026 at [73] - [75] Jacobson J preferred the Mitsubishi view, as did Allsop J in Australian Competition and Consumer Commission v Liquorland (Australia) Pty Ltd [2005] FCA 503 at [8] . 55 The weight of authority now seems to favour the Mitsubishi "real prospect" test. If necessary, I would prefer that to the Safeway "more likely than not" test. However, for the reasons which will hereafter appear, I am satisfied that the higher standard has been met in the present case. 64 The law of legal professional privilege necessarily assumes that the privilege may, indeed usually will, arise before the actual commencement of litigation otherwise there would be no point in the concept of reasonable anticipation. Therefore, in applying that law to the ACCC it would be misleading to focus on the state of mind only of those who have the power to commence litigation on the Commission's behalf. Looking at the policy behind the law of legal professional privilege (cf the approach of Lord Hoffmann to the legislation in question in Meridian at 511), the protection needs to apply at a time when the prospect of litigation is less than certain (whether the Safeway or the Mitsubishi test applies). By this stage there is a need for frank and candid communication between client and lawyer, or other persons such as potential witnesses, on the subject matter of the litigation no less than there is when the litigation actually starts. The privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers: Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49 at [35] . The people who are supervising the actual work which generates the documents in question will not necessarily be the ones who can decide to commit the corporate body to litigation. However if, as matter of organisational reality, they are responsible for the work in question it will be appropriate to impute their state of mind to the corporation.


case_text: Subsequent decisions have adopted a somewhat lower test. In Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59 ; (2002) 4 VR 332 at [19] Batt JA, with the concurrence of other members of the Victorian Court of Appeal, held that there must be a "real prospect" of litigation, as a distinct from a mere possibility, but it does not have to be more likely than not. In Microsoft Corporation v Ben Zhong Fan [2003] FCA 1026 at [73] - [75] Jacobson J preferred the Mitsubishi view, as did Allsop J in Australian Competition and Consumer Commission v Liquorland (Australia) Pty Ltd [2005] FCA 503 at [8] . 101 There was some complaint in the respondents' submissions of the "formulaic" assertion by Mr Alexander and Mr Williams of a dominant purpose. However, I note that in Microsoft at [77] there was criticism of a deponent who had used the adjective "primary". His Honour thought that it was "unsatisfactory that (the witness) has not spoken in the language of dominant purpose". Thus there may be something of a dilemma for witnesses swearing affidavits in support of privilege claims. Witnesses may feel they have to use either the formulaic term "dominant" or search around for some synonym a process which may be equally formulaic. In Grant v Downs at 678 Barwick CJ preferred the word "dominant" to describe the relevant purpose. In his Honour's opinion, neither "primary" nor "substantial' satisfied the true basis of the privilege. So it may be that the formula, however tedious, will continue to be used.


case_text: Subsequent decisions have adopted a somewhat lower test. In Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59 ; (2002) 4 VR 332 at [19] Batt JA, with the concurrence of other members of the Victorian Court of Appeal, held that there must be a "real prospect" of litigation, as a distinct from a mere possibility, but it does not have to be more likely than not. In Microsoft Corporation v Ben Zhong Fan [2003] FCA 1026 at [73] - [75] Jacobson J preferred the Mitsubishi view, as did Allsop J in Australian Competition and Consumer Commission v Liquorland (Australia) Pty Ltd [2005] FCA 503 at [8] .


case_title: Australian Competition and Consumer Commission v Rural Press Ltd [2000] FCA 66 ; (2000) 96 FCR 389

case_text: The respondents point out that ss 25 and 26 are to be contrasted. Section 25 does not authorise the Commission to delegate its statutory functions and powers to its own staff members. It may only delegate those functions and powers to a member of the Commission; see also the definition of "Commission" in s 4 which includes a member of the Commission or a Division of the Commission performing functions of the Commission. By referring to a member of the Commission or a Division of the Commission, the definition is referring to members to whom a power has been delegated under s 25 and a Division established under s 19: Australian Competition and Consumer Commission v Rural Press Ltd (No. 2) [2000] FCA 66 ; (2000) 96 FCR 389 at [13] . 60 The respondents say that the Act has expressly regulated the extent to which the Commission may delegate the exercise of its powers and functions. Certain powers are expressly conferred on a member of the Commission, as opposed to the Commission acting in a meeting, e.g. issuing a notice under s 155. Otherwise the powers and functions vested in the Commission are intended to be exercised by members of the Commission acting in a meeting at which a quorum is present or through a Division established by s 19 , or through a member acting under a delegation under s 25. 61 The conclusion, the respondents submit, is that the Act contains a clear statutory indication that the Commission is not to delegate to one or more members of its staff the power to decide whether to institute proceedings under Pt VI. This is consistent with the Commission's published documents. For example, in a public statement in 2006 the Commission said: "Decisions to start court action, to approve or reject a major merger, or to authorise anti-competitive behaviour if it is shown to be in the public interest, are only made by the Commission."


case_outcome: applied

case_text: The reasonable anticipation test is not a question of the exercise of some power by the Commission, such as the power to commence litigation. It is rather concerned with a state of mind which may or may not exist at a particular point in time. Only human beings can anticipate events. Whether the state of mind of a particular individual can be attributed to an incorporated body such as the ACCC depends on the particular law in question, in the present case the common law rules relating to legal professional privilege: see Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 at 506-509. One does not look in this context for the "directing mind and will" of the ACCC: see Lord Hoffmann's explanation in Meridian at 509-511 of the sometimes misunderstood decision in Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705. 64 The law of legal professional privilege necessarily assumes that the privilege may, indeed usually will, arise before the actual commencement of litigation otherwise there would be no point in the concept of reasonable anticipation. Therefore, in applying that law to the ACCC it would be misleading to focus on the state of mind only of those who have the power to commence litigation on the Commission's behalf. Looking at the policy behind the law of legal professional privilege (cf the approach of Lord Hoffmann to the legislation in question in Meridian at 511), the protection needs to apply at a time when the prospect of litigation is less than certain (whether the Safeway or the Mitsubishi test applies). By this stage there is a need for frank and candid communication between client and lawyer, or other persons such as potential witnesses, on the subject matter of the litigation no less than there is when the litigation actually starts. The privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers: Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49 at [35] . The people who are supervising the actual work which generates the documents in question will not necessarily be the ones who can decide to commit the corporate body to litigation. However if, as matter of organisational reality, they are responsible for the work in question it will be appropriate to impute their state of mind to the corporation.


case_text: The reasonable anticipation test is not a question of the exercise of some power by the Commission, such as the power to commence litigation. It is rather concerned with a state of mind which may or may not exist at a particular point in time. Only human beings can anticipate events. Whether the state of mind of a particular individual can be attributed to an incorporated body such as the ACCC depends on the particular law in question, in the present case the common law rules relating to legal professional privilege: see Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 at 506-509. One does not look in this context for the "directing mind and will" of the ACCC: see Lord Hoffmann's explanation in Meridian at 509-511 of the sometimes misunderstood decision in Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705.


case_text: The law of legal professional privilege necessarily assumes that the privilege may, indeed usually will, arise before the actual commencement of litigation otherwise there would be no point in the concept of reasonable anticipation. Therefore, in applying that law to the ACCC it would be misleading to focus on the state of mind only of those who have the power to commence litigation on the Commission's behalf. Looking at the policy behind the law of legal professional privilege (cf the approach of Lord Hoffmann to the legislation in question in Meridian at 511), the protection needs to apply at a time when the prospect of litigation is less than certain (whether the Safeway or the Mitsubishi test applies). By this stage there is a need for frank and candid communication between client and lawyer, or other persons such as potential witnesses, on the subject matter of the litigation no less than there is when the litigation actually starts. The privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers: Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49 at [35] . The people who are supervising the actual work which generates the documents in question will not necessarily be the ones who can decide to commit the corporate body to litigation. However if, as matter of organisational reality, they are responsible for the work in question it will be appropriate to impute their state of mind to the corporation. 97 The principle now endorsed by the High Court in Esso at [61] is that of the minority judgment of Barwick CJ in Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 677: "[A] document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection."


case_text: As to the name of the author, this complaint was made as to the ACCC's original list of documents dated 26 July 2006. The ACCC served a revised list on 27 November 2006 which included, as requested, information setting out "whether the statements were prepared by the ACCC or the AGS or counsel". The ACCC submits, and I accept, that it is not obliged to state the name of the author of each individual discovered document. No authority was cited for that proposition. The purpose of the requirement that a document be described is simply that the other party may know from the description whether or not it should be inspected and so that it can be identified subsequently: Australian Flight Test Services Pty Ltd v The Minister for Industry, Science and Technology [1996] FCA 1031 at 6-7. These requirements have been met in the present case. I note that the number of documents in question in this case is comparatively modest. The descriptions of them in the ACCC's list of documents suggest that the respondents would not be in any quandary as to whether or not to inspect. And they would have no lack of legal manpower to do so, if they were permitted.


case_text: The principle now endorsed by the High Court in Esso at [61] is that of the minority judgment of Barwick CJ in Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 677: "[A] document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection." 101 There was some complaint in the respondents' submissions of the "formulaic" assertion by Mr Alexander and Mr Williams of a dominant purpose. However, I note that in Microsoft at [77] there was criticism of a deponent who had used the adjective "primary". His Honour thought that it was "unsatisfactory that (the witness) has not spoken in the language of dominant purpose". Thus there may be something of a dilemma for witnesses swearing affidavits in support of privilege claims. Witnesses may feel they have to use either the formulaic term "dominant" or search around for some synonym a process which may be equally formulaic. In Grant v Downs at 678 Barwick CJ preferred the word "dominant" to describe the relevant purpose. In his Honour's opinion, neither "primary" nor "substantial' satisfied the true basis of the privilege. So it may be that the formula, however tedious, will continue to be used.


case_text: The first three grounds really revolve around the same point. Documents relating purely to credit are not discoverable. In a different context McHugh J, in a dissenting judgment, has criticised any bright line distinction the evidence as to credit and evidence as to the issues: Palmer v The Queen [1998] HCA 2 ; (1988) 193 CLR 1 at [51] et seq. However the Full Court of the Federal Court in Reading Entertainment Australia Pty Ltd v Birch Carroll & Coyle Ltd [2002] FCAFC 109 has reaffirmed the distinction in the context of discovery. Beaumont J at [70] adopted the statement in Butterworths , Practice & Procedure of the Federal Court at [40.760] "Documents which relate only to credit do not relate to a matter in question within the meaning of the traditional formulation." His Honour continued: "This may be seen as an example of the general principle, still valid, that the Court must always be satisfied that any order for discovery (including, as here, a specific order) must be 'reasonably' necessary for the fair disposing of the case."


case_outcome: followed

case_text: The first three grounds really revolve around the same point. Documents relating purely to credit are not discoverable. In a different context McHugh J, in a dissenting judgment, has criticised any bright line distinction the evidence as to credit and evidence as to the issues: Palmer v The Queen [1998] HCA 2 ; (1988) 193 CLR 1 at [51] et seq. However the Full Court of the Federal Court in Reading Entertainment Australia Pty Ltd v Birch Carroll & Coyle Ltd [2002] FCAFC 109 has reaffirmed the distinction in the context of discovery. Beaumont J at [70] adopted the statement in Butterworths , Practice & Procedure of the Federal Court at [40.760] "Documents which relate only to credit do not relate to a matter in question within the meaning of the traditional formulation." His Honour continued: "This may be seen as an example of the general principle, still valid, that the Court must always be satisfied that any order for discovery (including, as here, a specific order) must be 'reasonably' necessary for the fair disposing of the case." 107 Tamberlin J at [116] in agreeing with Beaumont J "strongly endorsed" the need for exercise of restraint in discovery. The judgment in Reading is binding on me. 108 In the present case, everyone knows that critical witnesses for the ACCC have been granted immunity. That fact can be, and no doubt will be, used by the respondents as a legitimate basis for an attack on credibility the witnesses. The effectiveness of such an attack cannot be predicted. However, documents which do no more than evidence that fact are relevant only to credit and are not discoverable. 109 On 8 January 2007 the respondents filed an amended defence to the ACCC's second further amended statement of claim. It included some new sub paragraphs to par 222. These were not introduced pursuant to leave. This is not a criticism, since the respondents had to plead to the ACCC's amended statement of claim. However the question of leave needs to be considered now. The new sub-paragraphs are as follows: (aa) that in or about late January or February 1998 the Amcor Group formed the belief that it has a higher cost structure than Visy Board in its corrugated fibreboard packaging division and was significantly uncompetitive with the corrugated fibreboard packaging business conducted by Visy Board. Particulars The Amcor Group's belief arose by reason of the fact that a former employee of Visy Board, John Alan Morriss (" Morriss "), provided the Amcor Group with, and the Amcor Group received, confidential information of Visy Board concerning Visy Board's CFP business, including a copy Visy Board's Managing Director's Report for the CFP Division dated June 1995 (" the 1995 Report "). The 1995 Report covered Visy Board's sales and included a detailed analysis of all major costs areas by month, year to date performance against budget, and the previous year. It included statistics on volumes, credit notes, employee numbers and conversion cost per unit of volume and per employee. Morriss provided extracts of the 1995 Report and other Visy Board confidential information relating to Visy Board's costs and sales figures in respect of the CFP business to Peter Brown of the Amcor Group . (ab) that in or about November 1999, Morriss obtained a copy of the Visy Board Managing Director's Report CFP Division for October 1999 (" 1999 Report"), showed Brown, then the Managing Director of Amcor Australasia, the summary of the key financial data contained in the 1999 Report, and discussed the data with Brown. Particulars The 1999 Report covered an analysis of volumes, employee numbers, costs and production statistics and profitability of each Visy Board Manufacturing plant for Visy Board's CFP business. (ac) that during the period of his employment with the Amcor Group (approximately January 1998 until January 2000), Morriss disclosed to Amcor Group personnel, including Brown and Hodgson, confidential information of Visy Board concerning customers, volumes of CFP products sold, and Visy Board's costs of producing CFP products. (ad) that the Visy Board confidential information referred to in the particulars to paragraph 222(aa) and in paragraphs 222(ab) and (ac) above (" the Visy Confidential Information ") was used by the Amcor Group: (i) to evaluate the relative efficiency of the Amcor Group's processes and costs in comparison with the corresponding processes and costs of Visy Board; (ii) in the development of the Amcor Group's business strategies and plans to compete with Visy Board's CFP business, including as the basis of capital expenditure requests to the Board of Amcor Limited; and (iii) to target Visy Board's customers. Particulars (A) Morriss provided information in the 1995 Report to members of the Executive Management Team of Amcor's CFP business including Brown, Peter Reichler, David Ley, Tony Myles, Max Fitzgibbons, John Crawford, Hodgson and Laidlaw at an Amcor strategy meeting in March 1998 at which the relative CFP cost structures of Visy and Amcor were discussed. Jones, then the Managing Director of Amcor Limited, visited during the meeting and was briefed on strategy developments, including the significance of the information in the 1995 Report. (B) Brown and Morriss from time to time during the Period of Service attended the Amcor Group's Camberwell offices to discuss issues about the CFP business with Jones. During these meetings, Morriss, Brown and Jones discussed the competitive position of the Amcor Group's CFP business and discussed information derived from the 1995 Report. (C) Information derived from the 1995 Report was used by Morriss at Board meetings of Amcor Limited that occurred in 1998 during the course of which Morriss made presentations to the Board of Amcor Limited in the context of making capital expenditure requests to upgrade facilities at the Amcor Group's corrugated factory at Brooklyn. (D) The Visy Confidential Information, or parts of it, were cited in presentations made to Jones, as Managing Director of Amcor Limited, to verify submissions as to the true competitive position of the Amcor Group and Visy Board, and in presentations made to Jones in support of additional injections of capital to fund a restructure of the corrugated fibreboard packaging division of the Amcor Group. These presentations were made by Brown, Morriss and others in or about the first half of 1988 and later by Hodgson to Brown and Jones at the Amcor Group's Rocklea offices in or about mid to late 1998. The presentation by Hodgson was made to support his request for a new corrugator and supporting infrastructure modernisation in order for the Amcor Group to compete more effectively with Visy Board's CFP business. (E) The Amcor Group restructured its CFP business to reduce costs and pursued increased market share by a "breadth" strategy, including bundling CFP products with other primary packaging which Visy Board did not offer at the time. This was agreed at the March 1998 strategy planning meeting referred to in sub-paragraph (a) above and ultimately approved by the Board on Amcor Limited and implemented. (ae) that despite incurring and continuing to incur significant expenditure aimed at regaining competitiveness in its CFP business, in or about late 1999 or early 2000 senior management of the Amcor Group, including Jones, Brown, and Hodgson, devised an alternative strategy, (described by the Amcor Group as "price recovery"), namely attempt to pursue collusive arrangements with Visy Board concerning prices and competition in respect of the supply of CFP; (af) that the Amcor Group's attempts to pursue the collusive arrangements referred to in paragraph 222(ae) were unsuccessful." 110 Sub-pars (aa) to (ad) raise allegations far removed from the numerous serious issues of fact and law already present in this case. They have the potential of raising countless side issues as to the rights and wrongs of the conduct of Mr Morriss and the effect of that conduct on Amcor. Such evidence would be likely to be excluded as resulting in an undue waste of time: Evidence Act 1995 (Cth) s 135 (c). 111 Such pars (ae) and (af) stand on a different footing. The respondents put them as an alternative. In the end the respondents did not object to the provision of further particulars. 112 There will be orders as follows: 1. The first to fifth respondents' motions dated 5 December 2006 and 1 February 2007 are dismissed with costs. 2. Subparagraphs 222 (aa) to (ad) of par 22 of the first to fifth respondents' amended defence filed 8 January 2007 are struck out. 3. The first to fifth respondents file and serve further and better particulars of the allegations in par 222 (ae) and (af) of their amended defence by 27 April 2007 4. The first to fifth respondents pay the applicant's costs of the motion dated 21 February 2007. I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 29 March 2007 Counsel for the Applicant: P J Jopling QC, CM Caleo SC, J Moore and P Wallis Solicitor for the Applicant: Australian Government Solicitor Counsel for the first to fifth Respondents: J L Sher QC, J Beach QC, P D Crutchfield, M H O'Bryan and D Crennan Solicitors for the first to fifth Respondents: Arnold Bloch Leibler Dates of Hearing: 28 February, 1, 13 and 15 March 2007 Date of Judgment: 29 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/444.html


case_text: Counsel for the appellant contends that the lawyer's letter was evidence that the current Tribunal was bound to take into consideration in coming to its decision. He conceded that the current Tribunal was not obliged to refer to every item of evidence before it (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 and Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46] (' Applicant WAEE' )). He nevertheless contended it was obliged to do so in the circumstances of this case. That was because, so the argument ran, the letter showed a risk to the appellant's well-being even after the change of government.


case_text: Counsel for the appellant contends that the lawyer's letter was evidence that the current Tribunal was bound to take into consideration in coming to its decision. He conceded that the current Tribunal was not obliged to refer to every item of evidence before it (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 and Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46] (' Applicant WAEE' )). He nevertheless contended it was obliged to do so in the circumstances of this case. That was because, so the argument ran, the letter showed a risk to the appellant's well-being even after the change of government. 8 I agree with counsel for the Minister that it is not clear that that letter was not taken into account. Considering the reasons for decision of the current Tribunal beneficially, it appears that the letter was not specifically adverted to by the current Tribunal, having regard to its strong finding about a lack of danger to the appellant given his long absence from Bangladesh. As the Full Court said in Applicant WAEE [2003] FCAFC 184 at [47] : 'The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.' See also SZCOQ v Minister for Immigration and Multicultural Affairs [2007] FCAFC 9 at [15] to [16], per Moore J, with whom Besanko J expressed substantial agreement at [18]. 9 The last sentence in the quote from Applicant WAEE in the preceding paragraph is particularly relevant to the current issue. The current Tribunal made strong findings rejecting any consideration of a future politically-based threat due to the passage of time. Inferentially, it rejected the thrust of the letter.


case_title: SZCOQ v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 9

case_text: I agree with counsel for the Minister that it is not clear that that letter was not taken into account. Considering the reasons for decision of the current Tribunal beneficially, it appears that the letter was not specifically adverted to by the current Tribunal, having regard to its strong finding about a lack of danger to the appellant given his long absence from Bangladesh. As the Full Court said in Applicant WAEE [2003] FCAFC 184 at [47] : 'The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.' See also SZCOQ v Minister for Immigration and Multicultural Affairs [2007] FCAFC 9 at [15] to [16], per Moore J, with whom Besanko J expressed substantial agreement at [18].


case_outcome: referred to

case_text: Although the issues raised by the appeal are straightforward, it is helpful to summarise the factual background. It is set out in some detail in two Supreme Court judgments: see Todaytech Distribution Pty Ltd v Yu [2004] VSC 246 (" Todaytech No 1 ") and Todaytech Distribution Pty Ltd v Yu [2005] VSC 313 (" Todaytech No 2 ").


case_title: Todaytech Distribution Pty Ltd v Yu [2005] VSC 313


case_text: Like appeals to the Full Court from a single judge of this Court, an appeal from a judgment of the Federal Magistrates Court is an appeal by way of re-hearing: see Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 (" Abeyesinghe ") at [4]; and Low v Commonwealth [2001] FCA 702 at [3] ; see also Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at 533 [75] ; and Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [50] - [54] . 32 In Coal and Allied Operations , at 203-204 [14], the High Court said that statutory provisions conferring appellate powers, even in the case of an appeal by way of re-hearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. A similar observation was made by the Full Court of this Court in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 ; (2001) 117 FCR 424 at 432-433 [21] . Thus, it has been said that this Court's appellate powers are only exercisable if the appellant can demonstrate that the orders under appeal are the result of some legal, factual or discretionary error: see Abeyesinghe at [4].


case_title: Low v Commonwealth [2001] FCA 702

case_text: Like appeals to the Full Court from a single judge of this Court, an appeal from a judgment of the Federal Magistrates Court is an appeal by way of re-hearing: see Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 (" Abeyesinghe ") at [4]; and Low v Commonwealth [2001] FCA 702 at [3] ; see also Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at 533 [75] ; and Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [50] - [54] .


case_title: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507


case_title: Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157


case_text: The expression 'appeal by way of re-hearing' is used in contradistinction to the expressions 'appeal in a strict sense', and 'appeal by way of hearing de novo '. It is important to bear in mind what these expressions connote. In the case of an appeal in the strict sense, the function of the appellate court is to determine whether the decision in question was right or wrong on the evidence and the law as it stood when the decision below was given. Where an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually described as an appeal by way of re-hearing. An appeal by way of hearing de novo is one in which the matter is heard afresh, and the decision is given on the evidence presented at the appellate hearing: see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 ; (2000) 203 CLR 194 (" Coal and Allied Operations ") at 203 [12]-[13]. 32 In Coal and Allied Operations , at 203-204 [14], the High Court said that statutory provisions conferring appellate powers, even in the case of an appeal by way of re-hearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. A similar observation was made by the Full Court of this Court in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 ; (2001) 117 FCR 424 at 432-433 [21] . Thus, it has been said that this Court's appellate powers are only exercisable if the appellant can demonstrate that the orders under appeal are the result of some legal, factual or discretionary error: see Abeyesinghe at [4].


case_text: In Coal and Allied Operations , at 203-204 [14], the High Court said that statutory provisions conferring appellate powers, even in the case of an appeal by way of re-hearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. A similar observation was made by the Full Court of this Court in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 ; (2001) 117 FCR 424 at 432-433 [21] . Thus, it has been said that this Court's appellate powers are only exercisable if the appellant can demonstrate that the orders under appeal are the result of some legal, factual or discretionary error: see Abeyesinghe at [4].


case_text: In St George Bank Ltd v Helfenbaum [1999] FCA 1337 at [13] (" Helfenbaum "), Sundberg J said: "The existence of a cross-claim may be a 'sufficient cause' within s 52(2)(b) for declining to make a sequestration order: Ling v Enrobook Pty Ltd (1997) 74 FCR 19 at 25. It is for the debtor to establish the existence of 'sufficient cause': Cain v Whyte [1933] HCA 6 ; (1933) 48 CLR 639 at 645-646; Ling at 24. He must establish that he has a real claim against the creditor that is likely to succeed. If the Court is satisfied that there is such a claim, and that its quantum is likely to equal or exceed the creditor's claim, it will not make a sequestration order. If the claim is likely to be less than the creditor's claim, the Court will require the debtor, if he is to avoid a sequestration order, to pay the difference between the judgment debt and the amount he is likely to recover on his claim. See Re Player (1962) 19 ABC 277 at 282; Re Schmidt; Ex parte Anglewood Pty Ltd (1968) 13 FLR 111 at 115-116; Ling at 25-26; Commonwealth Bank v McDonald [1999] FCA 984. A debtor does not establish a real claim that is likely to succeed merely by producing a statement of claim in an action against the creditor: Re Rivett; Ex parte Edward Fay Ltd (1932) 5 ABC 182; Player at 282, or by pointing to the existence of current litigation against the creditor: cf Re Douglas Griggs Engineering Ltd [1963] 1 Ch 19 at 23. While the Court does not try the cross-claim in advance, the debtor must adduce sufficient evidence to show that it is a real claim which is likely to succeed: cf Vogwell v Vogwell (1939) 11 ABC 83 at 88; Player at 282." 35 The appellant's counterclaim is set out in pars 50 and 51 of the defence and counterclaim. It states: "By way of Counterclaim the Defendant says: 50. The Plaintiff [the respondent in the appeal] is and was at all material times a corporation registered pursuant to the laws of the State of Victoria. 51. The Defendant refers to and repeats paragraphs 6 to 46 hereof as if they were set out hereunder seriatim." 36 The central allegations in pars 6 to 46 of the defence and counterclaim are that: (a) by a contract of employment made on or about 20 February 1992 which was varied by subsequent agreements, the appellant agreed to work for the respondent as a full-time warehouse distributor and delivery man ("the first contract"); (b) it was a term of the first contract that the defendant would receive such overtime, sick leave, annual leave and long service leave as he was entitled to received under statute ("the statutory entitlements"); (c) it was a term of a subsequent agreement that the appellant would receive a commission equal to 15% of the respondent's net profits ("the commission"); and (d) despite the appellant's requests and in breach of the agreements, the respondent has failed and/or refused to pay to the appellant the statutory entitlements and the commission and therefore the respondent is indebted to the appellant in the sum of $593,432.22. 39 As noted by Sundberg J in Helfenbaum , it is insufficient for the appellant merely to produce the counterclaim. Sufficient evidence must be adduced to show that it is a real claim which is likely to succeed. On the hearing of the appeal, counsel for the appellant did not refer me to any evidence which supported the counterclaim. Rather, counsel submitted that it was unnecessary to look beyond the allegations contained in the counterclaim. He submitted that Hartnett FM had fallen into error simply by failing to take account of, and give weight to, the allegations contained in the counterclaim. I reject these submissions. 40 In her reasons for judgment, Hartnett FM refers to an affidavit sworn 29 July 2005 in which the appellant disposed to his belief that his Supreme Court counterclaim was on foot and needed to be repleaded. Apart from this belief, Hartnett FM said that the appellant had provided no evidence to the Federal Magistrates Court deposing to the factual matters on which the counterclaim is based, despite having more than adequate opportunity of doing so. In these circumstances, it is impossible to say that Hartnett FM erred by making the sequestration order. 41 The 27 October affidavit was not in evidence before Hartnett FM, and no application was made to me for leave to rely upon fresh evidence in this appeal. However, even if regard is had to the material in this affidavit and the exhibits thereto, it does not establish that the counterclaim has a real prospect of success.


case_text: I agree with his Honour. Experience in forensic contests in which it is sought to reveal, even under conditions of strict confidentiality, limited material to one or more legal advisers or representatives of a party, while excluding those persons from communicating with others in the same interest, can create great difficulties for the adviser. It is even harder where that information is communicated to a person such as Mr Hopper who, accepting the highest ideals of the legal profession to act for those who need assistance, act for other persons who are in a similar situation of potential, perceived, or real, risk to security or in litigation involving the question of whether or not their security classifications or other civil rights have been affected by decisions taken in the interests of national security: cp: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 222 ALR 411 at pp. 415-416 [15] and 417 [19].


case_text: Counsel for the applicant faintly put an argument based on Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223, namely that the decision was one which was so unreasonable that no reasonable decision-maker could have arrived at it. The submission was introduced with the words that counsel had difficulty in making it. I have difficulty in accepting it. 33 In my opinion, the material reveals a perfectly rational basis on which the issue of the certificate was approached. Other minds may have approached it differently and rationally, but it is not the function of the court to interfere unless it can be seen that there is some reason to say that the decision-maker in effect behaved in an irrational way or in a way that was not authorised by law. In my opinion there is no substance in this ground and I reject it. 34 For those reasons I am of opinion the application should be dismissed. [Counsel addressed on costs]


case_outcome: considered

case_text: The problem with secrets is that the revelation of the secret to one person can have the unintended consequence that a cat gets out of the bag. There are cases in the books in which this has happened. One very well known example is Attorney General v Leveller Magazine Limited [1979] AC 440 in which a Colonel in the MI5 gave evidence under a pseudonym and in circumstances where it was intended that his identity not be revealed. But, by setting out his own circumstances and qualifications in giving his evidence in open court other persons were able, outside the court, to put two and two together and, as Lord Russell of Killowen colourfully said: ' [t]he gaff was already blown by the deposition ' ([1979] AC 440 at p. 468 F-G). In effect, the cat was out of the bag.


case_text: The courts have a duty to view governmental secrets through different spectacles to those with which they would view private information: Esso Australia Resources Ltd v Plowman [1995] HCA 19 ; (1995) 183 CLR 10 at p. 31 per Mason CJ. There his Honour said: 'This involves a reversal of the onus of proof: the government must prove that the public interest demands non-disclosure.'


case_title: Jackson v Wells (1985) 5 FCR 296

case_text: In a letter dated 3 December 2004 the Australian Government Solicitor invited Mr Hopper to comment on the following matters: '3. In order to assist the Attorney-General to reconsider his previous decision not to consent to a representative of the applicant being present during the closed hearing we therefore invite you to address the following matters: 3.1. The fact that, whatever the safeguards, your access to the certificated material is an encroachment upon its confidentiality ( Commonwealth v Northern Land Council [1993] HCA 24 ; (1992-93) 176 CLR 604 at 620). 3.2. The risk of you disclosing, inadvertently or otherwise, sensitive ASIO information to your client, one of your other clients, or another person. a. You have represented, or currently represent, a number of members of the Islamic community in Sydney who have been the subject of investigation by ASIO. In the present case, some of the documents refer to other individuals who are also current or former clients of yours. The risk of inadvertent disclosure is increased because it may not be self-evident to you that asking a particular (apparently benign) question of your client or other persons, could reveal to your client or the other person(s) some aspect of the certificated material. b. The risk of inadvertent disclosure of national security information has been recognised by Courts without reflecting in any way upon the integrity of the particular legal representative. The risk may increase with the volume of material, the complexity and protractedness of the legal proceedings and the passage of time. Once the certificated material became part of your general knowledge it may be difficult for you to recall its source and ensure non-disclosure. c. As noted by Justice Wilcox in Jackson v Wells 5 FCR 296, 'It seems ... merely commonsense to conclude that the fewer people who have access to confidential information the less is the risk of unauthorised disclosure'. 3.3. The potentially serious consequences if such disclosure occurred. a. Disclosure of the certificated information (and related submissions) would also result in the disclosure to others of ASIO's modus operandi and ongoing investigations. The ongoing maintenance of confidentiality of ASIO sources of information and modus operandi is essential for ASIO to carry out its functions, including ASIO's ability to provide advice to the Australian government on matters relating to security. b. Disclosure of modus operandi and details of ongoing investigations could alert targets and thereby enable them to take counter intelligence steps which could adversely affect ASIO's ability to gather useful and important intelligence. c. Disclosure of the certificated material could reveal to Mr Traljesic and other current or prospective targets of ASIO's areas of interest and the extent of its ability or effectiveness in obtaining intelligence. 3.4. The extent to which your being present (when the certificated evidence is given or submissions are made) is likely to assist your client. You may be able to make submissions about such things as the likely reliability, plausibility or relevance of evidence given or submissions made that could affect the weight the Tribunal would attach to such evidence or submissions. You would not, however, be able to tell your client anything which would disclose certificated evidence or related submissions. This prohibition may well mean that your client will not be able to adduce any responsive evidence.' 6 On 12 December 2004 Mr Hopper responded to the Attorney's invitation in the following terms: 'We refer to the above and your correspondence of 3 December 2004. We are obliged for the opportunity to address the concerns raised by the Attorney General in relation to certificated material. We make the following submissions in reply to your correspondence and adopt your paragraph numbering for clarity: 3.1 It is quite clear to the writer that certified materials are highly sensitive to the interests of national security and access to such materials by the writer is acknowledged as an encroachment upon their confidentiality. As such the writer recognises the special responsibility placed on him if access is permitted. Nonetheless, the immunity sought by the Attorney General is subject to a competing interest being the proper administration of justice. In the particular case the interest of the proper administration of justice is superior as our client has had the right of international travel denied based on serious allegations contained in the ASIO security assessment. This administrative decision has been made on the basis of this adverse security assessment. A significant portion of the evidence in support of the security assessment is subject to a certificate restricting access to it. For our client to obtain even the basic level of procedural fairness and natural justice it is imperative that the writer, who holds the appropriate security clearance, be permitted access to certified material and be permitted to make submissions to the Tribunal at in camera hearings. 3.2 The writer submits that the risk of a willful or inadvertent disclosure is non-existent. a. The writer acknowledges that he has represented a number of clients subject to ASIO investigations in the past and currently. The writer represents 3 clients in "passport cases" and one in a civil litigation. The writer further represents another client held in Guantanamo Bay but has not communicated with this client. The writer has also represented and provided legal advise [sic] to a number of other people who have been [sic] subject of ASIO investigations but for various reasons does not represent such people anymore and is unlikely to have any further contact with all but a few of these former client [sic] . From representing such clients the writer has a significant understanding of various methods employed by ASIO during investigations. As a consequence the writer is acutely aware of sensitivities related to such knowledge obtained and to providing appropriate lawful advice to clients subject to ASIO scrutiny without compromising the interests of national security. In the present case the writer's experience in dealing with matters of national security would assist him in ensuring no deliberate or inadvertent disclosure of certified material would occur. The writer has discussed the matter of accessing certified material with Mr Traljesic and other relevant active clients of this practice in Australia and advised them that he would not be able to disclose any certified material to them. Further, the writer has advised these clients that when he is attending to one client's matter he may obtain information from certified material attending relating to another client and would not be able to disclose the information to either client. These clients instructed the writer that they understood this and had no objections if such were the case. Accordingly, there would be no expectation by the clients for the writer to disclose any certified material to them. The clients are also aware that if any information exposes a conflict of interest then the writer will have to cease to act for those whom the conflict applies. b. The writer understands the importance of retaining a clear knowledge of the source of information related to national security as a strategy to prevent inadvertent disclosure. The writer will always, and has always, checked the source of information prior to disclosure if there is any uncertainty as to the information's source. c. The writer acknowledges the obita dicta in Jackson v Wells and submits that the writer being permitted access to certified material and in camera hearings is entirely consistent with the principle. The writer has the appropriate security clearance and as he represents a number of clients with such matters any information would be restricted to the one person. This has to be advantageous to a situation where numerous persons had separate representatives. It should be further noted that disclosure of any certified information to any source would be a serious ethical breach of the solicitor's practice rules and would be reportable to the Law Society. A significant possibility would exist that the writer would be struck off the role of solicitors if a deliberate or negligent disclosure of certified information was made. The writer takes very seriously his role as an officer of the court and is aware that his duty to the court outweighs that to his clients. 3.3 The writer is well aware of the serious consequences of a deliberate or inadvertent disclosure of certified information. a. The writer acknowledges that disclosure of sources of information, being persons, documents or devices, would seriously prejudice the operations of ASIO and the interests of national security. The writer is aware that the disclosure of the name of a person who is a source of information to ASIO would place that person at significant risk of harm. Given these sensitivities the writer understands that he would have a special responsibility not to disclose sources of information. The writer undertakes not to disclose sources of information of ASIO and to employ the highest degree of prudence to ensure that no inadvertent disclosure occurs. b. The writer undertakes not to disclose any information obtained from certified information regarding the modus operandi of ASIO and details about ongoing operations to any person or client. The writer is aware of the nature of counter intelligence and would be extremely prudent with any certified information obtained to prevent it being disclosed and used to undermine the efforts of ASIO and other relevant authorities. c. The writer acknowledges the Government's concerns in this paragraph. It is the writer's role to represent clients legally and not assist them in activities that may be detrimental to the national security or to otherwise offend the laws of Australia. Accordingly, the writer is aware that disclosure of certified material could be of great prejudice to ASIO and the national interest. As such the writer undertakes not to deliberately disclose certified information and employ the highest degree of prudence to avoid inadvertent disclosure of such information. 3.4 The writer acknowledges that we would not be able to disclose any certified information obtained from documents or in camera proceedings to any client, counsel or other person. Without prior knowledge of the material we cannot submit specifically to what extent the writer can assist our client. Notwithstanding that, the writer agrees that he can assist as you have outlined in paragraph 3.4. Furthermore, the writer has a significant understanding of the client's mindset, social background, culture and his philosophy toward Islam. This information may well assist our client in relation to any analysis of his comments by ASIO or others. The writer's presence would also ensure that our client was treated fairly in relation to the admission of evidence and submissions by the Government. This is significant in the circumstances as the client cannot be present and is up against a well resourced Government that has taken action to restrict his right to international travel based on serious allegations that have criminal undertones. Summary The writer has been involved in matters involving ASIO and national security since October 2001. This has involved providing advice to numerous clients, instigating court and tribunal proceedings and public comment. The writer is one of the few non-government lawyers who has obtained a security clearance that is at the appropriate level to have access to certified material. There are competing interests at stake in this matter. That of the public interest to maintain national security, over that of the proper administration of justice. Given the resources of the Government and the fact that our client is not permitted access to certified information or in camera proceedings the interest of the proper administration of justice is superior. This is buttressed by the writers exposure to national security matters and the acute awareness of the sensitivities of restricted information and the consequences that would flow from its disclosure. The writer undertakes that any certified information will not be disclosed to the client, the client's counsel or any other person other than strictly authorised by the Government. The writer further undertakes to employ the highest degree of prudence to prevent inadvertent disclosure of certified information. The writer is aware that disclosure of certified information would constituted a serious ethical breach of the solicitors practice rules and such breach would likely involve disciplinary action that may well see the offending practitioner struck off from the role of solicitors.' 7 On 9 March 2005 the Australian Government Solicitor responded to the letter of 12 December 2004 stating that they were advised that the Attorney-General: '(a) has now reconsidered all relevant matters in relation to his decision under section 39A(9) (including but not limited to the submissions made in your letter of 12 December 2004) (b) does not consent to your ( that is, Mr Hopper) - being present when evidence is adduced or submissions made which are the subject of the certificates issued pursuant to section 39A(8) of the AAT Act in the proceedings.' 8 A certificate signed by the Attorney-General subsequently issued dated 19 April 2005 in the following terms: ' ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 ABDULLAH TRALJESIC CERTIFICATE ISSUED BY THE ATTORNEY-GENERAL UNDER SECTIONS 36, 39A AND 39B I, Philip Ruddock, the Attorney-General for the Commonwealth of Australia and the Minister administering the Australian Security Intelligence Organisation Act 1979 , hereby certify pursuant to paragraph 39B(2)(a) of the Administrative Appeals Tribunal Act 1975 ('the Act') that disclosure of the contents of the documents described in the supplementary schedules hereto, and the schedules, would be contrary to the public interest because the disclosure would prejudice security. I further certify, pursuant to subsection 39A(8) of the Act, that evidence proposed to be adduced and submissions proposed to be made by or on behalf of the Director-General of Security concerning the documents set out in the Supplementary Schedules hereto are of such a nature that the disclosure of the evidence or submissions would be contrary to the public interest because it would prejudice security. As the responsible Minister for the purposes of subsections 39A(8) and (9) of the Act I do not consent to a person representing the Applicant being present when evidence described in paragraph 2 is adduced and such submissions are made. I further certify, pursuant to subsection 36(1) of the Act, that disclosure of the contents of the public interest by reason that it would prejudice the security of Australia.' 23 Once that occurs by, in effect, persons putting two and two together the damage is done and cannot be undone. In circumstances where the security of the nation has been confided by statute to a Minister of the Crown who forms a view that there is a risk to security by a revelation of information, I do not consider that it is an irrelevant consideration for the Minister to have regard to an assessment of risk, even of remote risk, in circumstances where the person who is applying, as in this case, to have information revealed to him or her could be put into the position where, inadvertently and through no design of his or her own, he or she will unconsciously reveal something of importance which may be of no meaning to him or her. In Jackson v Wells (1985) 5 FCR 296 at pp. 307-308 Wilcox J said this: ' Thirdly, Mr Roberts suggested that, if I were not disposed to grant access to the subject material to the parties, I should at least grant access to the legal representatives of the parties. I gave this submission anxious consideration. It was a course apparently considered by the High Court in Alister [v The Queen [1983] HCA 45 ; (1984) 154 CLR 404] , although ultimately not adopted. As I have indicated, I would have welcomed the assistance of counsel upon the content of the documents. The applicants would, no doubt, have felt more satisfied that the documents were rigorously examined by the court if their counsel had been given the opportunity to take the court through the documents. But, in the end, I rejected the proposal. It involves a number of problems. Without reflecting in any way upon the integrity of any counsel or solicitor, difficulties are likely to arise where counsel appearing in, and advising their clients in respect of, protracted and complex proceedings acquire information which they are not free to use or to pass on to their clients. During the heat of battle an unwitting disclosure may occur. Frank and full advice becomes impossible. I am aware of cases in which, for reasons such as these, experienced counsel have declined to receive information which they are not free to share with their clients. It seems to me merely commonsense to conclude that the fewer people who have access to confidential information the less is the risk of unauthorised disclosure. Weighing the assistance likely to be obtained from counsels submissions against the sensitivity of the material, it seemed better not to accede to Mr Roberts' suggestion.'


case_text: In my opinion, the considerations that the submissions made to the Attorney-General reveal about the potential but unsubstantiated risk that Mr Hopper might inadvertently disclose information were not an irrelevant consideration. The subject matter, scope and purpose of each of sections 36, 39A and 39B indicate that the Minister has an unconfined discretion to have regard to what he, as a high officer of the Executive, considers is in the public interest and may prejudice the security of Australia: Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at p. 40 per Mason J; Reg v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62 ; (1979) 144 CLR 45 at pp. 49-50.


case_text: The argument before me has tended to centre on the provisions of section 39A subsections (8) and (9), particularly because it is in those provisions that some exception to the blanket effect of a certificate can be made if the Attorney-General is prepared to consent to a person representing an applicant before the Tribunal being present when evidence is adduced or submissions made that are the subject of the certificate. However, each part of the statute must be construed separately, although the court will try to give an harmonious meaning to it as a whole: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at pp. 381-382 [69]-[71] and 384 [78]. 15 Critically, each of the three empowering provisions authorises the Attorney-General to certify in writing that the disclosure of information concerning a specified matter or the disclosure of any matter contained in a document will be contrary to the public interest by reason that it would prejudice the security of Australia. Each provision then provides consequences as to the effect of the certificate when so given.


case_title: Reg v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62 ; (1979) 144 CLR 45


case_text: Some of the obvious difficulties which can be created for legal advisers or others in such situations were adverted to in an interlocutory judgment given by McLelland CJ in Eq, in Telstra Corporation Limited v Australis Media Holdings Limited (unreported, Supreme Court of New South Wales, 3 December 1996). There his Honour said: 'So far as concerns disclosure to individuals who may in the future participate in decisions on the part of either of the plaintiffs or other commercial associates, to which confidential and commercially sensitive information in the satellite joint venture agreement may be relevant, any requirement imposed by way of condition or undertaking to refrain from using that information in making any such decisions may, in a practical sense, be impossible to fulfil, and any breach impossible to detect or prove. This was a point forcefully made by Hayne JA in the Mobile Oil Australia case where, at p 87, his Honour said: "Once the documents are inspected by the principals of the trade rival the information which is revealed is known to the trade rival and cannot be forgotten. Confidentiality is destroyed once and for all (at least so far as the particular trade rival is concerned). To say that the trade rival is bound not to use the documents except for the purposes of the action concerned is, in a case such as this, to impose upon that trade rival an obligation that is impossible of performance by him and impossible of enforcement by the party whose secrets have been revealed. How is the trade rival to forget what internal rate of return the competitor seeks to achieve on a new investment of the kind in question? How is the party whose hurdle rate has been revealed to know whether the rival has used the information in framing a tender? Thus, if the trade rival may inspect the documents concerned, the confidentiality of the information in them is at once destroyed. Is that necessary for the attainment of justice in the particular case?" This applies not only to any officers or employees of the respective plaintiffs but also to any solicitor or counsel who may have ongoing responsibilities in advising the plaintiffs or their commercial associates on matters other than the prosecution of the proceedings for which the confidential information in question may have relevance. For reasons of this kind in some classes of cases it may sometimes be appropriate to confine disclosure of particular documents to nominated individuals associated with the parties to which disclosure is to be made who have given undertakings to the Court and to the disclosing party, not only restricting the use to which information in the documents may be put, but restricting the future activities of those individuals in representing or advising, or in participating in decision making for, those parties, at least for some specified period of time. Such a procedure, however, has its own disadvantages discussed in the cases including the quarantining of the individual to whom the poisoned chalice passes, from providing their services in particular areas and depriving the parties of the benefit of those services, and also creating a situation where agents of a principal are in that capacity put in possession of information, from access to which the principal is excluded.'


case_text: That, of course, does not deal with the statutory formulation in each of sections 36, 39A and 39B of the Act. However, courts are naturally cautious in construing legislation which has the effect of interfering with what might be regarded as ordinary civil rights of citizens or dealing with other fundamental common law concepts. Thus, provisions will be construed so as to preserve those rights unless such interference is shown to be strictly required by clear words or as a matter of necessary implication: Wentworth v New South Wales Bar Association [1992] HCA 24 ; (1992) 176 CLR 239 at p. 252 per Deane, Dawson, Toohey and Gaudron JJ. 18 I am mindful that the context in which the certificate is authorised to be issued in the form it was under the Act occurs in circumstances where, first, a person's civil liberties and other civil rights may be substantially impacted upon and, secondly, those liberties and rights are the subject of the proceedings before the Tribunal. 19 The question, however, that Parliament has confided to the Attorney-General under each of sections 36, 39A and 39B is the formation of a judgment of a Minister of the Crown that disclosure of particular information would prejudice the security of Australia. Necessarily, considerations which are present to the mind of the member of the Executive of the Commonwealth at ministerial level to whom that responsibility is confided are difficult to judge of in a forensic contest, particularly where an issue of public interest immunity or matter of state immunity arises.


case_text: The application was remitted to this Court pursuant to orders made by Gaudron J, as varied by McHugh J, following the delivery of judgment in Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601 (" Muin" ). 4 By letter dated 12 November 2004, the District Registrar of this Court notified the applicant that the Court proposed to consider whether there was an arguable case on the basis of the written material that the applicant had given to the Court and without any oral hearing. The applicant was invited to file written submissions on the question of whether the Court should make an order nisi and, on 8 December 2004, he did so. 5 I propose to deal with this application on the papers. 9 In the draft order nisi filed in the High Court, the applicant claims that the Tribunal failed to afford the applicant natural justice because he had not been given an opportunity (or an adequate opportunity) to prepare and present favourable material at hearing or an adequate opportunity to respond to unfavourable material. The applicant relies on the High Court's decision in Muin . The High Court in Muin held that the plaintiff was denied procedural fairness in circumstances where the plaintiff relied on a misrepresentation that the Tribunal would have regard to the delegate's Part B documents before making its decision (see Gaudron J at [63]; Gummow J at [171]; Kirby J at [201]; Hayne J at [257] and Callinan J at [309]). 10 In his written submissions, the applicant asserts that he was denied natural justice in the processing of his review application by the Tribunal. The applicant claims that the Tribunal did not have before it, and therefore did not consider, country information referred to in Part B of the Ministerial delegate's decision. The applicant says that he was misled by three letters sent to him by the Tribunal into believing that the Tribunal had been forwarded, and had considered, all the papers relevant to his application. The applicant first refers to a letter from the Tribunal dated 30 May 1997, which states that the Tribunal has requested that the Department forward to it a copy of any documents held by the Department that are relevant to the applicant's case. The applicant then refers to a letter from the Tribunal dated 14 April 1998, which states that the Tribunal has looked at all the material relating to the application. The applicant finally refers to a letter from the Tribunal dated 30 May 1997, which states that the applicant should not send any documents or written arguments to the Tribunal that have already been given to the Tribunal or the Department. 11 The applicant claims that had he not been misled by the Tribunal, he would have taken steps to draw to the Tribunal's attention the Part B documentation that was favourable to his case. In particular, he would have sought advice about how to get copies of the documents from the Department, drafted his written submissions differently, provided further written submissions and included additional documents in the material provided to the Tribunal. In an affidavit sworn on 8 December 2004, the applicant says that he would have also conducted searches on the internet for additional information that supported his case, attempted to find supporting material from other sources and mediums and contacted his family in India to ask them for letters of support or statutory declarations explaining the situation in India and his situation in particular.


case_outcome: distinguished

case_text: The appellant relied on the decision of Kenny J in Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 ; (1999) 92 FCR 6 to support the proposition that an inadequate or inaccurate translation of evidence before the Tribunal renders the Tribunal unable to afford a non-English speaking applicant any effective opportunity to give evidence to it. Such a failure can constitute a contravention of s 425(1) of the Act and a jurisdictional error. In Perera it was not alleged that a particular passage of evidence, given by the applicant, was erroneously translated. Rather, his complaint was "that certain features of the transcript indicated that the interpretation was of poor quality or ... incompetent." (at 22). Her Honour examined the transcript as a whole. She found that certain of the applicant's answers were unresponsive and, in some instances, "virtually incoherent". There appeared to be a misunderstanding of the Tribunal's questions and there was confusion in the communication such that the Tribunal was forced to give up a line of inquiry on a significant aspect of the applicant's claim. Her Honour accepted (at 23) that: "It is not every departure from the standard of interpretation that prevents an applicant for refugee status from giving evidence before the Tribunal. The departure must relate to a matter of significance for the applicant's claim or the Tribunal's decision." 17 The appellant, in the present case, claimed to have suffered persecution, inter alia, by reason of his former membership of the JVP. He had not, prior to the hearing before the Tribunal, sought to support this claim by reference to the alleged incident in which some unnamed individuals sought to abduct him from school and were frustrated by the actions of the school principal. When this incident was raised at the hearing, the Tribunal sought to obtain further details about what had occurred and to test the claims by reference to country information. When the Tribunal expressed some scepticism that public officials such as a principal or school teachers would risk offering assistance to a member of a banned organisation which was engaged in an armed struggle with the government, the appellant volunteered a number of reasons why such persons might have been prepared to protect him notwithstanding the risks to themselves. In the case of the principal the appellant relied on the familial relationship between them to explain why he might offer protection. The appellant added that the principal had been looking after him "from my fourth year". Even if the Tribunal had understood this to mean "fourth year of school" rather than "four years of age" the difference only affected the length of time that the appellant had been cared for by his uncle. The Tribunal was prepared to accept that the familial relationship existed. It was, however, doubtful that even "blood relatives" would risk "severe repercussions" by protecting a member of a banned revolutionary organisation. It is also to be observed that this scepticism was but one of many reasons why the Tribunal refused to accept the appellant's claim to have been a member of the JVP. 18 I regard the mistranslation on which the appellant relies to be of marginal significance: a variation or a shade of meaning is involved rather than any gross error. More importantly, the error was not material in the sense that it played no direct part in the reasoning process of the Tribunal. At best for the appellant, it may have resulted in the Tribunal marginally underestimating the intensity of the principal's commitment to the welfare of the appellant. The error did not deprive the appellant of the opportunity to give evidence and present arguments to the Tribunal. There was, therefore, no contravention of s 425 of the Act by reason of inadequate translation of the appellant's evidence. 19 The other two alleged contraventions of s 425 are founded on the contention that the Tribunal failed adequately to identify issues arising on the review such that the appellant was denied the opportunity to deal with those issues. The issues which the appellant claims not to have had the opportunity to give evidence and present argument about were the cause of certain injuries sustained by him and the question of where he lived between 2000 and 2005.


case_text: The appellant complains that he was not afforded the opportunity of dealing with these issues because the Tribunal did not identify them as being important. He placed particular reliance on certain observations of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at 600. The Court said: "The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review before the tribunal. The applicant is to be invited 'to give evidence and present arguments relating to the issues arising in relation to the decision under review'. The reference to 'the issues arising in relation to the decision under review' is important. Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language 'arising in relation to the decision under review' is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the tribunal may exercise all of the powers and discretions conferred by the Act on the original decision-maker (here, the Minister's delegate), but also to the fact that the tribunal is to review that particular decision for which the decision-maker will have given reasons. The tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the tribunal. But if the tribunal takes no steps to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are 'the issues arising in relation to the decision under review'. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the tribunal (as they may be), it would ordinarily follow that, on review by the tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant." (emphasis in original) 21 The Minister's delegate dealt with the appellant's claims to have been subjected to physical violence. A careful analysis of what she said about this topic is necessary in order to determine whether the issue was adequately identified for the purposes of the Tribunal's review. Her decision record relevantly reads: "The applicant's principal fear of return to Sri Lanka is based on his claimed membership and political activity with the UNP, primarily it appears during election campaign periods. In his statement he refers to the 1994 general election campaign ...and the Presidential election campaign in 1999 ... He claims to have been harassed, threatened and attacked where he sustained injuries and was hospitalised for four days, because of his political activity, but has provided no evidence such as medical reports. He also claims that due to the life threatening incidents he and his family suffered, he went into hiding and moved from place to place. He states his wife and mother have been threatened through anonymous phone calls and acts of intimidation to find out his whereabouts. He fled Sri Lanka as he feared he would be harmed and will face mistreatment should be return there at the hands of his political opponents. It is difficult to accept the applicant's claims to have been seriously mistreated on a number of occasions by supporters of opposing political parties in Sri Lanka since he became a member of the UNP. The applicant is vague and non-specific regarding the date he joined the UNP and the dates and details of his political activities. The level of mistreatment he claims to have experienced does not appear to be consistent with the level of political activity. Whilst he claims to have been actively involved with UNP election campaign activities I do not consider he held power or position in Sri Lanka which would lead to him being targeted in the manner claimed. I note that his involvement in political activity was primarily during election campaign periods and there is no indication that he was heavily involved in political activity apart from election campaigns. The applicant states that he participated in political activity during the 1994 campaign and received numerous death threats, he claims that bombs were flung at his party office although he was not there at the time, and as a result of losing the elections he was subjected to acts of violence by supporters of the SLFP and its allies, namely leftist parties. As an active supporter of the UNP he claims that he also attracted a serious adverse political profile with the ruling PA and was threatened and attacked by unidentified persons. As stated above there does not appear to be any reason why the applicant should be specifically targeted for harm on the basis of his participation in campaign activity. There is no indication that the applicant reported this matter to police nor the senior leadership of the UNP, therefore I find it difficult to accept that given the claimed circumstances that action was not taken by UNP politicians, legal professionals or members of one of the human rights groups that operate in Sri Lanka particularly given that the UNP regained power in December 2001. Whilst I accept there are sometimes instances of election related violence in Sri Lanka, there is no information to support the applicant's claim that he will face persecution in Sri Lanka because of his involvement in the UNP election campaign in 1994 and 1999. I note the UNP regained power in December 2001 which they retained until early in 2004. The applicant's claims of persecution by various political opponents relate to the 1994 general election campaign and the Presidential election campaign in 1999 as stated above. He has not claimed that he was involved in the April 2004 general elections at all, yet he insists that acts of violence against him by political opponents continued unabated until his departure from Sri Lanka in May 2005, some six years after his claimed campaign activities in 1999. Furthermore, I do not accept that there is any information to support his claim that he continued to face mistreatment after the declaration of the election result in 2001 where the UNP regained power, and there is no plausible reason why he would be pursued in the manner claimed. There has been no information provided to support a finding that the applicant's involvement in political activity in Sri Lanka was so significant and high profile that he would be subject to ongoing mistreatment after the result of the election was known. I do not accept that there was any basis for him to have been pursued after the declaration of the April 2004 election. ... I accept the applicant may have been harassed, threatened and possibly attacked during the period of election campaigns in Sri Lanka, however I do not accept that there is any information to support his claim that he continued to face mistreatment after the declaration of the election results in all the periods claimed. I also find it difficult to accept that given the claimed level of mistreatment over a period of time, that action was not taken on his behalf by UNP politicians, legal or medical professionals or members of one of the human rights groups that operate in Sri Lanka. Whilst there are reported incidents of election related violence in Sri Lanka, there is no information to support the applicant's claim that he will face persecution in Sri Lanka because of his involvement with UNP campaigns ..." The question of where the appellant lived between 2000 and 2005 was not canvassed by the delegate. 22 The appellant's legal advisor made a written submission on his behalf to the Tribunal. The submission said that the appellant "had sustained physical injuries in the course of attacks by the PA supporters and hired thugs against which he had absolutely no protection." The submission did not say when any of the physical injuries had occurred but referred to "one occasion [on which the appellant] had been hospitalised following an attack by the political opponents." It was further submitted that, upon his discharge from hospital, it had been necessary for the appellant "to move from place to place for security reasons." 28 The more fundamental issue, however, is whether the Tribunal deprived the appellant of the opportunity to deal in greater detail with the cause of his scarring and the place where he lived between 2000 and 2005 by failing to notify him that it regarded those matters as important issues. As the High Court held in SZBEL the appellant was entitled to proceed on the basis that the issues which would be considered by the Tribunal were those identified by the Minister's delegate as being determinative against the appellant and any additional issues which were identified by the Tribunal. 29 The issues of when and if the appellant had been subjected to physical violence by political opponents for political reasons was squarely raised in the delegate's decision record: see above at [21]. The delegate was prepared to accept that the appellant may have been attacked during the period of election campaigns in Sri Lanka but not that such violence continued at other times. The appellant's legal advisor, in his submission to the Tribunal, referred to physical injuries which had been sustained by the appellant but did not give any details of any of the occasions on which such violence occurred and, in particular, did not provide information as to the dates on which such incidents were said to have taken place. No mention was made of any of the physical attacks leading to scarring. It was the appellant who, during the course of the hearing before the Tribunal, drew attention to his scarring in order to support his claim to have been beaten by opponents in Sri Lanka. The appellant did not state when and by whom any act of violence leading to scarring was inflicted. This was a point of evidence rather than an issue. The issue was whether or not the appellant had been subjected to physical violence by his political opponents for political reasons. That issue had been squarely raised by what appeared in the Minister's delegate's decision record. The appellant drew attention to his scars in order to bolster his claim to have been attacked by his opponents. One may well cavil at the Tribunal's reasoning that vagueness and imprecision as to the details of the various alleged incidents necessarily led to the conclusion that those incidents had not occurred but any error in this regard (if there be one) does not go to the Tribunal's jurisdiction. 30 The question of where the appellant lived between 2000 and 2005 arose in the course of the hearing before the Tribunal. It arose because of an apparent inconsistency in the evidence of the appellant. When the inconsistency emerged the Tribunal immediately put the appellant and his advisor on notice that the Tribunal considered that it went to the appellant's credit. This was acknowledged by the appellant and his representative to the extent that the appellant offered to provide documentary evidence of where he was living during the relevant period. Following the hearing the appellant's advisor forwarded to the Tribunal various letters from public officials in Sri Lanka. Those letters certified that the appellant had lived in various places in Sri Lanka in the period between 2000 and 2005. In its reasons, the Tribunal identified the places mentioned in the letters and continued: "I have considered these documents but note that none of these places are (sic) in Colombo and the documents submitted do not state why the applicant was living in these places at that time. Therefore these documents do not verify in any way the [appellant's] claims that he had fled Ukuwea and lived in various places in Colombo to avoid harm from political opponents."


case_title: Hicks v Ruddock (2007) 156 FCR 575

case_text: The reason Mr Rivera's case discloses no reasonable prospects of success is because it relies entirely on a premise that cannot be maintained. For habeas corpus to issue, an applicant must show that he or she is unlawfully held in the custody or control of the respondent: see Hicks v Ruddock (2007) 156 FCR 575 at 587-592. Mr Rivera's application depends on the assertion that his present detention is unlawful because, once he placed on the commercial airline flight on 22 December 2007, his lawful custody under Australian authorities ceased, and the continuation of his custody since that date is without lawful authority. 10 This assertion is without substance because the authority to detain Mr Rivera did not, and indeed could not, terminate at the point at which Mr Rivera boarded the flight. 11 The authority to detain did not terminate because the surrender warrant issued by the Minister for Justice and Customs (now styled the Minister for Home Affairs) under s 23 of the Extradition Act 1988 (Cth) on 31 August 2006 authorises Mr Rivera's custody in Australia until he is transported "out of Australia to a place in the United States". Given that the power of the Minister to issue this warrant and include such a condition is not disputed by Mr Rivera in his application of 28 December 2007, it is uncontentious that the warrant, when issued, represented a lawful authorisation of his custody in Australia. In my view, the provision in the warrant that Mr Rivera's custody continue until he is transported "to a place in the United States" which a seat on a commercial airline flight yet to take off patently is not is sufficient basis on which to hold that the warrant still constitutes lawful authorisation of his custody in Australia.


case_text: This application was made subsequent to numerous other applications made by Mr Rivera in this Court since he was placed in custody in Australia in 2002 pending extradition to the United States of America to face charges relating to a murder he is alleged to have committed in California in May 2002. The most recent of these applications was determined by Flick J on 13 December 2007, in which his Honour declined to expedite the hearing of an appeal from the decision of a Judge of the Court which dismissed an application for review of a decision of the Human Rights and Equal Opportunity Commission: see Rivera v Human Rights and Equal Opportunity Commission [2007] FCA 2037. The history of some of Mr Rivera's earlier litigation is summarised by Gyles J in Rivera v Minister Administering the Extradition Act 1988 (Cth) [2007] FCAFC 191. It is not necessary for me to repeat or elaborate upon this extensive litigious history.


case_title: Rivera v Human Rights and Equal Opportunity Commission [2007] FCA 2037


case_text: In my view, the administration of justice in this case does not require that the matter be referred to a Registrar to arrange pro bono legal representation or advice for Mr Rivera because his application of 28 December 2007 discloses no reasonable prospects of success, and Mr Rivera has not adduced any evidence or provided any authority to indicate otherwise. The lack of reasonable prospects of success, or where a case is "patently hopeless" or has no "arguable basis", has been regarded by the Court as sufficient reason to refuse a referral under O 80 r 4: see Taylor [2005] FCA 319 at [10] ; Rivera v The Commonwealth of Australia [2007] FCA 1465 at [34] . As a matter of discretion, therefore, I am of the view that it is not appropriate to prolong the present proceedings which are without merit.


case_text: O 80 r 4(1) of the Federal Court Rules 1979 (Cth) provides: 'The Court or a Judge may , if it is in the interests of the administration of justice , refer a litigant to the Registrar for referral to a legal practitioner on the Pro Bono Panel for legal assistance in relation to a proceeding before the Court.' (Emphasis added.) When considering such an application, O 80 r 4(2) empowers the Court to take into account any matter it deems appropriate, including the means of the litigant, the capacity of the litigant to otherwise obtain legal assistance and the nature and complexity of the proceeding. This discretion is a broad one, and is not limited by those matters set out in O 80 r 4(2): see Taylor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 319 at [10] - [11] . 7 The issue in the present reasons is whether the discretion of the Court should determine that the "administration of justice" requires Mr Rivera's proceedings to be referred to the Registrar to arrange for pro bono legal representation. 8 In my view, the administration of justice in this case does not require that the matter be referred to a Registrar to arrange pro bono legal representation or advice for Mr Rivera because his application of 28 December 2007 discloses no reasonable prospects of success, and Mr Rivera has not adduced any evidence or provided any authority to indicate otherwise. The lack of reasonable prospects of success, or where a case is "patently hopeless" or has no "arguable basis", has been regarded by the Court as sufficient reason to refuse a referral under O 80 r 4: see Taylor [2005] FCA 319 at [10] ; Rivera v The Commonwealth of Australia [2007] FCA 1465 at [34] . As a matter of discretion, therefore, I am of the view that it is not appropriate to prolong the present proceedings which are without merit.


case_text: Applying this approach, in my opinion the letter conveyed clearly and unequivocally that the Distributorship Agreement is to terminate with effect on and from 31 March 2007. If authority is needed for this proposition, it may be found in Ballas v Theophilos (No 2) [1957] HCA 90 ; (1957) 98 CLR 193 at 204-205; see also Young v Lamb at [28].


case_text: It is also to be considered in light of the plain fact that Home Wilkinson Lowry are acting as solicitors for the Hume companies in the present proceedings, notwithstanding that no costs agreement has been produced relating to any such retainer. Thus it may be thought that the solicitors would have authority to deal with all issues which reasonably arise in the pursuit of the proceedings; CIC Insurance Ltd v Bankstown Football Club Ltd (1995) 8 ANZ Ins Cas 61-232 at 75,555 (Kirby P). 44 The observations of Kirby P in CIC Insurance were directed toward ostensible authority. However, here, particularly in light of Mr Leathem's affidavit and the failure to produce a current written retainer, I would infer the existence of actual authority. 45 That termination of the Distributorship under Article 20(3) was part of the subject matter of the proceedings may be seen from my remarks in [32] of my earlier judgment.


case_text: In addition, I can be more comfortable in drawing an inference that the solicitors had actual authority by the failure of the Hume companies to call evidence. I am entitled to infer that the testimony would not have been favourable to Hume's case; Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418 419 (Handley JA). 47 The only other submission which I need to address under this subheading is not concerned with the question of authority. It is whether the email of 22 December 2006, attaching a copy of the letter of the same date, constituted written notice. 48 Counsel for Hume submitted it did not because an email is an electronic representation of writing and therefore does not constitute writing itself as required by Article 20(3). I reject that submission.


case_text: In my view neither of these statements constituted a repudiation because they do not evince an intention not to comply with the contract as correctly interpreted; DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12 ; (1978) 138 CLR 423 at 431-432 (Stephen, Mason & Jacobs JJ). 56 In my opinion there is no warrant for the imposition of a condition that Exact pay the compensation required by Article 21. 57 In my earlier judgment at [12] I said that the meaning of Article 21(1)(a) is not entirely clear, although it plainly enough entitles Hume to substantial compensation on termination of the Distributorship Agreement.


case_text: In Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19 ; (1997) AC 749 at 771, Lord Steyn observed that in determining the meaning of the language of a commercial agreement the law favours a "commercially sensible construction". It is hostile to technical interpretations and undue emphasis on niceties of language; see also Finishing Services Pty Ltd v Lactos Fresh Pty Ltd [2006] FCAFC 177 at [25] (Kiefel, Sundberg & Edmonds JJ).


case_text: It is true, as counsel for Hume submitted, that in general a solicitor does not have implied or ostensible authority to accept contractual notices on behalf of a client, particularly where that amounts to the exercise of a substantive right; see IVI Pty Ltd v Baycrown Pty Ltd [2005] QCA 205 at [4] and [33]; see especially the helpful review of the authorities by Keane JA at [33] [44]. 39 However, I do not need to consider the questions of implied or ostensible authority because in my opinion Messrs Home Wilkinson Lowry had actual authority to receive the notice. 40 This is to be inferred from two pieces of evidence. First, on 20 January 2006, Home Wilkinson Lowry wrote to Exact Software Australia. The letter stated: "We shall be dealing with matters arising under the Distributorship Agreement directly with Exact on behalf of our client."


case_title: Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19 ; (1997) AC 749