case_text: As is well known, Pt IV of the TPA is directed at restrictive trade practices. It contains a number of provisions which proscribe and regulate agreements and conduct, and which are aimed at maintaining competition in trade and commerce: see Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat and Live-Stock Corporation (1980) 29 ALR 333 at 340 per Deane J. 6 The Competition Policy Reform Act 1995 (Vic), which introduced the Code, applies the "Schedule Version of Part IV" of the TPA to all "persons" in Victoria. 7 Section 45 of the TPA, which falls within Pt IV, deals with contracts, arrangements or understandings that restrict dealings or affect competition. Section 45(2) is in the following terms: "A corporation shall not: (a) make a contract or arrangement, or arrive at an understanding, if: (i) the proposed contract, arrangement or understanding contains an exclusionary provision; or (ii) a provision of the proposed contract, arrangement or understanding has the purpose, or would have or be likely to have the effect, of substantially lessening competition; or (b) give effect to a provision of a contract, arrangement or understanding, whether the contract or arrangement was made, or the understanding was arrived at, before or after the commencement of this section, if that provision: (i) is an exclusionary provision; or (ii) has the purpose, or has or is likely to have the effect, of substantially lessening competition."


case_outcome: cited

case_text: In Schneider Electric (Australia) Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 2 ; (2003) 127 FCR 170 at [57] Merkel J (with whom Black CJ and Sackville J relevantly agreed) accepted that the parity principle applies to pecuniary penalties imposed under s 76 of the TPA. His Honour referred to two earlier decisions of the Full Court in support of that proposition, namely NW Frozen Foods at 295, and Australian Competition and Consumer Commission v Ithaca Iceworks Pty Ltd (2002) ATPR |P41-851 at 44,539. See also Australian Competition and Consumer Commission v SIP Australia Pty Limited (2003) ATPR |P41-937 at [57] [58] per Goldberg J; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 4 ) (2006) ATPR |P42-101 at [71] [74] per Goldberg J; and Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No 3) [2007] FCA 144 at [11] per Tracey J.


case_text: The parties have jointly submitted, and I accept, that the Court is entitled to treat the respondents' consent to these orders as involving an admission of all facts necessary or appropriate to the grant of the relief sought. See Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150 at 164.


case_text: Plainly, the matters to be considered include: • the nature and extent of the contravening conduct; • the amount of loss or damage caused, if any; • the circumstances in which the conduct took place; • the size of the contravening company; • the deliberateness of the contravention; • the period over which the contravention extended; and • whether the respondents have shown a disposition to cooperate with the regulatory authorities. See generally Trade Practices Commission v CSR Ltd (1991) ATPR |P41-076 per French J at 52,152 52,153. 116 A pecuniary penalty is intended to achieve various goals. These include punishment, proportionate to the gravity of the contravening conduct, and deterrence, both specific and general. 117 At the same time, any penalty that is imposed should not be so high as to be oppressive. Among the factors that may be taken into account by way of mitigation are a blameless prior history, genuine contrition, and a willingness to settle any proceeding so as to avoid unnecessary expense.


case_outcome: distinguished

case_text: In Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193 ; (2003) 131 FCR 529 at [308] [309] the Full Court regarded the fact that legal advice had been obtained as being of little consequence and not as a discounting factor. In that case it was said merely to illustrate that the risk was appreciated. 140 I would regard the principle formulated in Universal Music as being inapplicable to this case. Here it is not so much that legal advice was obtained that is relevant. Rather it is the fact that not one of a bevy of lawyers who were involved in structuring and documenting the arrangement considered for a moment that there might be a breach of s 45. It is that which lends support to the respondents' claim, accepted by the ACCC, that they did not act dishonestly and had no idea that they were contravening that section. In no sense did they "appreciate" the risk, and choose to run it. 141 I am satisfied that all but two of the pecuniary penalties that are agreed are within the permissible range, and that they should be imposed. These penalties are appropriate because they may deter others from engaging in similar conduct. They are not insubstantial, totalling, for example, in the case of Mr North's clients $765,000. 142 The two exceptions are the penalties agreed in relation to Ronda, $65,000, and Mr Bramley, $20,000. Try as I might, and despite the fact that neither of these respondents wished to make any further submissions after discovering what penalties had been agreed between the ACCC and the other respondents, I can see no reason why penalties as severe as these should be imposed upon these two respondents.


case_text: The applicable principles are fairly clear. They are discussed at some length by Hill J in Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 at 201; see also 7-Eleven Stores Pty Ltd v Australian Competition and Consumer Commission (1998) ATPR 41-622 (' 7 Eleven' ) at 4821 per Heerey J; Essendon Health Care Pty Ltd v Moylan (1998) 50 ALD 421 per Merkel J.


case_title: 7-Eleven Stores Pty Ltd v Australian Competition and Consumer Commission (1998) ATPR 41622


case_title: Essendon Health Care Pty Ltd v Moylan (1998) 50 ALD 421


case_outcome: discussed

case_text: In Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622, McHugh J observed at 624-625: In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation... 7 His Honour went on to state at 625: If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases.'


case_text: Finkelstein J arrived at that conclusion in Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FCR 284. 9 In the present case, the evidence shows that the last contact between the applicant and the Minister took place on 11 May 2005. On that day, the assistant secretary of the Department for Environment and Heritage wrote to the managing director of the applicant stating, in effect, that the Minister's decision would need to await the receipt of information on the cumulative impact of wind farms. The letter said that the additional information was expected by the end of June 2005. The material before me indicates that that timeframe was far too optimistic. The relevant material was not received by the Minister until some time on or about 22 February 2006. However, the letter did make it clear that the Minister would not be able to make an informed decision on the Bald Hills Wind Farm until he received that information. The letter also said that, in the view of the Department, the statutory time frame for making the decision had been refreshed and had not at that time expired. 10 There is no evidence of later communications between the applicant and the Minister. This has some significance, having regard to Heerey J's decision in 7 Eleven . In that case, Heerey J made an order for costs not simply because of the lengthy delay of over two years in making the decision, but also the fact that the applicant, before commencing proceedings, had given notice of intention to bring the proceedings to the Commission and that two promises by the Commission to make a decision had not been fulfilled. 11 In this case, Ms Nance, counsel for the Minister, accepts that the statutory time limit had expired and that the decision was out of time. However she submits that the applicant was aware that the Minister had deferred a decision awaiting a report which, in the event, was not finalised until February 2006. In all the circumstances, I am not satisfied that this is a case where it can be said that the Minister has acted so unreasonably that I should make an order for costs in favour of the applicant. 12 I appreciate the applicant's point that the Minister's lengthy delay, in disregard of a statutory time limit, led to the institution of proceedings. On the other hand, there was knowledge on the part of the applicant that the Minister was awaiting a report and I consider that there was a significant absence of communication (at least so far as the evidence goes) about the intention to commence the proceedings. 13 In the circumstances, I consider that the appropriate orders are that the proceedings be dismissed that there be no order as to the costs of the proceedings. I will so order. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Young. Associate: Dated: 4 July 2006 Counsel for the Applicant: HR Carmichael Solicitor for the Applicant: Herbert Geer & Rundle Counsel for the Respondent: E Nance Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 7 April 2006 Date of Judgment: 7 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/848.html


case_outcome: applied

case_text: where special reasons can be identified, the Court has a discretion to grant or refuse to grant the extension of time sought (per Branson J in Howard v Australian Electoral Commission [2000] FCA 1767 at [7] . In Howard [2000] FCA 1767 at [7] , Branson J also said: Factors to be taken into account in the exercise of the discretion include the importance of the question sought to be raised by the proposed appeal, the bona fides of the proposed appeal and the prima facie strength of the proposed ground of appeal ( Jess v Scott at 188). The applicant has not complied with O 52 r 15(3) of the Federal Court Rules . The affidavit sworn by him and filed in support of the present application does not address the matters required to be addressed by subrules (3)(c)(i) to (iii) of O 52 r 15. This non-compliance is a matter of substance not merely a matter of form. There are good reasons why the Court needs evidence going to the matters referred to in that subsection. Generally speaking, the Court should insist upon such evidence being tendered at the hearing of applications of this sort. There are suggestions in the affidavit filed by the applicant in support of the present application that, at least from 17 December 2008, he was endeavouring to make an application for leave to file a Notice of Appeal out of time but was having difficulty ascertaining precisely how to do this. It must be remembered that he did not make an appropriate application until the middle of February 2009.


case_text: applicant submitted that his application involved a matter arising under the Constitution or involved the interpretation of the Constitution . He further submitted that, for this reason, the provisions of s 78B of the Judiciary Act were engaged so that notices under that section were required to be sent to the Attorneys-General of the States. No notice would be required to be sent to the Commonwealth Attorney-General because the Commonwealth was, in effect, a party to the action (see s 78B(3)(b) and Inglis v Commonwealth Trading Bank of Australia [1969] HCA 44 ; (1969) 119 CLR 334). As mentioned in [18] above, the applicant informed me that he had already sent notices pursuant to s 78B of the Judiciary Act to the relevant Attorneys-General. A copy of the form of Notice sent by the applicant appears to have been filed in this Court. The fact that the applicant has already sent a form of notice does not pre-empt proper consideration by me of the question whether s 78B has truly been engaged in the present case. In my view, no constitutional matter is involved in the present case. Section 78B of the Judiciary Act is not engaged. No notices pursuant to that section ought to have been given by the applicant. No such notices are required to be given. At the time that I made the ruling to which I have referred at [19] above, I indicated to the parties that I would publish my reasons for that ruling as part of these Reasons for Judgment. Section 78B of the Judiciary Act is in the following terms: 78B Notice to Attorneys-General (1) Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court. (2) For the purposes of subsection (1), a court in which a cause referred to in that subsection is pending: (a) may adjourn the proceedings in the cause for such time as it thinks necessary and may make such order as to costs in relation to such an adjournment as it thinks fit; (b) may direct a party to give notice in accordance with that subsection; and (c) may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation. (3) For the purposes of subsection (1), a notice in respect of a cause: (a) shall be taken to have been given to an Attorney-General if steps have been taken that, in the opinion of the court, could reasonably be expected to cause the matters to be notified to be brought to the attention of that Attorney-General; and (b) is not required to be given to the Attorney-General of the Commonwealth if he or she or the Commonwealth is a party to the cause and is not required to be given to the Attorney-General of a State if he or she or the State is a party to the cause. (4) The Attorney-General may authorize the payment by the Commonwealth to a party of an amount in respect of costs arising out of the adjournment of a cause by reason of this section. (5) Nothing in subsection (1) prevents a court from proceeding without delay to hear and determine proceedings, so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so. In a document dated 8 March 2009 and filed with the Court on 9 March 2009, the applicant attempted to identify several constitutional matters which he contended necessitated the issuing of s 78B notices.


case_text: reviewing the authorities of McGowan v Migration Agents Registration Authority [2003] FCA 482 ; (2003) 129 FCR 118 and Transport Workers' Union of New South Wales v Australian Industrial Relations Commission [2008] FCAFC 26 ; (2008) 166 FCR 108 , his Honour declined to entertain the applicant's Application and dismissed it summarily on discretionary grounds. His Honour did so in the exercise of this Court's undoubted discretion to decline to entertain such an application in circumstances where there were ample alternative avenues available to the applicant for a full merits review of the respondent's decision to reject his claim for Austudy and where the applicant had not yet pursued any of those avenues. Doing the best I can to understand the document, the applicant seems to want to agitate five grounds of appeal, namely that: (a) His Honour's discretion miscarried because his Honour misunderstood and misapplied the principles articulated in McGowan [2003] FCA 482 ; 129 FCR 118 and in Transport Workers' Union of New South Wales [2008] FCAFC 26 ; 166 FCR 108 ; (b) The decision to reject his claim for Austudy was not made by the Secretary of the Department personally, as was required by the relevant legislative provisions; (c) The respondent had no power to investigate the applicant's claim for Austudy or to gather information from third party sources in respect of that claim; (d) His Honour erred in failing to require the respondent to answer more fully than it had a subpoena issued by the applicant; and (e) His Honour was actually biased against the applicant. I think that his Honour correctly encapsulated the principles from McGowan [2003] FCA 482 ; 129 FCR 118 and Transport Workers' Union of New South Wales [2008] FCAFC 26 ; 166 FCR 108 and that it was plainly open to his Honour to exercise his discretion in the manner in which he did. Unless it could be established that his Honour applied the wrong principles or invoked the correct principles but applied them in an obviously incorrect way, his Honour's exercise of discretion could not be overturned on appeal. The decision which his Honour made was clearly open to him especially as the gravamen of the applicant's complaint against the respondent concerned the valuation of his assets made by the respondent. This was a matter apt for merits review. His Honour correctly identified the merits review pathways open to the applicant. Further, the approach which his Honour took was advocated to his Honour by the respondent both in the written submissions made on behalf of the respondent to his Honour and in oral submissions made during the hearing which took place before his Honour. Notice of that approach was fairly given to the applicant. For these reasons, in this case, the applicant has failed to demonstrate that he has any prospect of establishing that Cowdroy J committed error of the relevant kind. This ground is hopeless.


case_title: Parker v The Queen [2002] FCAFC 133

case_text: Parker v The Queen [2002] FCAFC 133 , at [6] in the reasons of the Court, a Full Court of this Court said: In the civil jurisdiction, Wilcox J discussed at some length the matters which, in his opinion, were deserving of consideration when considering an application for leave to extend the time within which to file a notice of appeal: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 , a decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The matters which attracted his Honour's attention were set out at 348-349: applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an "acceptable explanation for the delay"; it must be "fair and equitable in the circumstances" to extend time; action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished; any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension; however, the mere absence of prejudice is not enough to justify the grant of an extension; and the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted. In the same case, their Honours reviewed a number of other authorities which explained the basis upon which the Court will exercise its discretion to extend time for a litigant to appeal from a judgment of a single judge of the Court. Their Honours made clear that the overriding consideration is the interests of justice. The prima facie strength of the proposed appeal needs to be considered. However, I will assume, for the moment, in favour of the applicant that, at all times since 14 December 2008, he has been genuinely and diligently trying to make application to the Court for leave to file a Notice of Appeal from the judgment of Cowdroy J out of time. He did not, in fact, file the necessary application until 16 February 2009. I will make the assumption to which I have referred in order to give full consideration to the remaining factors referred to in Parker [2002] FCAFC 133 and to the interests of justice in the present case.


case_text: must also be an acceptable explanation for the delay ( QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7] ).


case_text: 4 November 2008, Cowdroy J delivered judgment in Rahman v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1634. On that day, his Honour dismissed Mr Rahman's application with costs. On the same day, his Honour delivered his reasons for making those orders. The proceedings before his Honour concerned an application for Austudy payments made by the applicant which was rejected by a delegate of the respondent on the ground that the value of the applicant's net assets exceeded the upper limit for the value of assets allowable under the relevant legislation. The time within which the applicant might have appealed from his Honour's decision expired on 25 November 2008. The applicant did not file any Notice of Appeal by 25 November 2008. On 16 February 2009, the applicant filed an Application for Extension of Time to File and Serve a Notice of Appeal in order to enable him to appeal from the decision of Cowdroy J made on 4 November 2008 ( the present application). That is the application with which I am presently dealing. Par 4 of that Application is in the following terms: (Statement indicating whether the applicant wishes to have application dealt with without an oral hearing.) The applicant's Appeal 'for Leave to whole Appeal application' must be dealt with "Oral Hearing" to defend and established the legitimacy of the challenge for the unlawful and wrong decisions made by Hon Cowdroy J, on 4 November 2008, which emanated from discrimination and of ignorance of Constitutional interpretations of what constitutes "Courts" under Commonwealth of Australian Constitution Act: "Chapter 111 Courts and not Tribunals as Courts" as Cowdroy J and Dale Watson, Solicitor, perceived and with perverse Case Reference, with no evidences of orders as mentioned in the Grounds of Applications to void the Respondent's wrong and false instruments of claims and to validate the applicant's legitimate claims with the relevant enactments. Pursuant to Order 52 Rules 2Ac Summary of Argument, the applicant has submitted defence precisely with legal arguments exemplifying Cowdroy J, decisions are of unlawful, wrong being of without receiving evidence, determining questions of facts, to take into accounts the valid Acts, without proof, perverse of Case References and such failure to deal properly with facts will amount legal error and must be challenge under enactments to uphold-justice. I have quoted par 4 in full. As is clear from par 4 of his Application, the applicant sought an oral hearing of the present application. That hearing took place on Monday last (16 March 2009). At the conclusion of the hearing, I reserved my decision until 9.15 am today. The facts noted in subpars (b) to (g) of [9] above are not disputed for the purposes of the present application. However, the position in respect of the facts referred to in subpar (a) of [9] above is somewhat different. I was informed from the bar table by the solicitor for the respondent that: (a) The hearing before Cowdroy J had concluded by about 11.30 am on 4 November 2008; (b) At the conclusion of that hearing, his Honour announced that he would reserve his decision to 2.15 pm on that day (4 November 2008) at which time he proposed to give his decision and announce his reasons orally; and (c) His Honour then also informed the applicant that he need not wait until 2.15 pm if he did not wish to do so and that, once the oral reasons of his Honour were finalised and engrossed, a copy of the engrossed version of those reasons would be sent by mail to the applicant. The applicant did not challenge this account of what occurred on 4 November 2008. I accept that account of those events. I infer that the applicant attempted to take steps to challenge the judgment of Cowdroy J given on 4 November 2008 when he lodged his Notice of Motion with the Registry on 17 December 2008. However, he became distracted from the task of challenging that judgment when he sought judicial review of the Registrar's decision not to accept his Notice of Motion. He did not file the present application until 16 February 2009. Later in these Reasons, I will deal with the draft Notice of Appeal annexed to the applicant's affidavit. On 13 March 2009, the applicant filed Written Submissions in support of his contention that s 78B of the Judiciary Act was engaged in the present case. In those submissions, the applicant advanced an additional contention that the Social Security Appeals Tribunal and the Administrative Appeals Tribunal " have no authority for judicial reviews " and thus that he had a right to bring and have determined the application which Cowdroy J had dismissed. The applicant further contended that the right which he had to invoke judicial review of the respondent's adverse decision concerning his Austudy claim included an entitlement to have his application heard and determined after a full hearing of his claims. He submitted that his application could not be rejected summarily on discretionary grounds. A summary rejection of his application on discretionary grounds was said to be unconstitutional. I did not detect any additional arguments advanced by the applicant in relation to s 78B during oral submissions. The matter noted at subpar (a) of [27] above is not, in my view, a matter which is covered by s 78B of the Judiciary Act . There is nothing in the Constitution or the Judiciary Act governing the way in which this Court should exercise its appellate jurisdiction. That subject matter is dealt with by Pt III , Div 2 of the Federal Court Act (especially s 24 and s 25). Section 25(2)(b) is in the following terms: 25 Exercise of appellate jurisdiction ... (2) Applications: ... (b) for an extension of time within which to institute an appeal to the Court; or ... may be heard and determined by a single Judge or by a Full Court. The final matter raised by the applicant which I have noted at [27] above does not involve any relevant constitutional question. Whilst he may have a right to seek judicial review of a decision of the type made by the respondent in the present case, that right does not extend so far as to exclude the exercise of a judicial discretion to decline relief summarily in appropriate circumstances (for example, for the reasons determined by Cowdroy J in the present case). For these reasons, I do not think that the present matter involves a matter arising under the Constitution or involves the interpretation of the Constitution . There was and is no warrant for s 78B notices to be issued. Before Cowdroy J, the applicant sought judicial review pursuant to s 5 of the ADJR Act and s 39B of the Judiciary Act of a decision made by Centrelink (an operational arm of the respondent) on 27 March 2008 to reject his application to receive payments under the Austudy scheme. Reasons for that decision were provided by the respondent to the applicant in a letter dated 4 April 2008 sent by the respondent to the applicant. Centrelink had rejected the applicant's claim for Austudy because the total value of his assessed assets exceeded the assets value limit prescribed for Austudy under the relevant legislative provisions. In Rahman [2008] FCA 1634 at [5] , his Honour said: The applicant has provided written submissions to the Court which, together with his application, raise numerous matters. The applicant claims that an ' unlawful act, transgress and abuse of power ' has occurred; that the rules of natural justice have been breached; that the respondent made the decision of 27 March 2008 ' based on forgery and false instruments ' relating to the applicant's financial assets; and that the decision of 27 March 2008 ' involves an error of law and must be void as the determination was affected by into [sic] corroboration of false instruments ' relating to the financial assets of the applicant. The applicant also submits that the respondent's decision constitutes an attempt to disadvantage the applicant's Austudy claim ' by making a statement known to be false or misleading "in a material particular" or made with reckless disregard as to whether it is '. At [11] of his Honour's reasons his Honour held: Under the Social Security (Administration) Act 1999 (Cth) ('the Social Security Act') the applicant has the option of seeking review by an Authorised Review Officer: see ss 129 and 135. If the review proves to be unfavourable to the applicant, he is entitled to appeal to the Social Security Appeals Tribunal: see s 142 of the Social Security Act. From that tribunal the applicant is entitled to seek review in the Administrative Appeals Tribunal: see s 179 of the Social Security Act. The decision of Cowdroy J was a final decision which determined the application before his Honour. Accordingly, the applicant had a right to appeal from that decision provided that he did so within the time limited by the Federal Court Rules for such an appeal. Order 52 r 15 of the Federal Court Rules is in the following terms: Time for filing and serving notice of appeal 15(1) The notice of appeal shall be filed and served: (a) within 21 days after: (i) the date when the judgment appealed from was pronounced; (ii) the date when leave to appeal was granted; or (iii) any later date fixed for that purpose by the court appealed from; or (b) within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph. (2) Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal. (3) An application for leave under subrule (2) must: (a) be in accordance with Form 54A; and (b) include a statement indicating whether the applicant wishes to have the application dealt with without an oral hearing; and (c) be accompanied by an affidavit setting out: (i) the nature of the matter; and (ii) the factual and legal issues in dispute; and (iii) the reasons why leave should be given. (4) If a respondent objects to an application being dealt with without an oral hearing, the respondent must: (a) file a notice to this effect; and (b) serve a copy of the notice on each other party to the application. It is clear that the applicant did not file a Notice of Appeal within the time limited for an appeal from Cowdroy J's decision viz by 25 November 2008. Accordingly, the applicant must satisfy the test for leave to file and serve a Notice of Appeal out of time embodied in O 52 r 15(2) of the Federal Court Rules . That subsection requires that " special reasons " must exist which justify the grant of such leave. As I have already observed there is no explanation or no satisfactory or sufficient explanation for the delay between 25 November 2008 and 14 December 2008. It must also be remembered that the applicant chose to absent himself from Court at 2.15 pm on 4 November 2008 when Cowdroy J delivered his oral judgment. If the applicant had attended Court on that occasion, he would have known then and there that his application had been dismissed by his Honour and would also have been apprised of the reasons given by his Honour for the orders which he then made. The applicant's failure to attend at Court on that occasion contributed to his failure to lodge his Notice of Appeal within time. However, I will assume, for the moment, in favour of the applicant that, at all times since 14 December 2008, he has been genuinely and diligently trying to make application to the Court for leave to file a Notice of Appeal from the judgment of Cowdroy J out of time. He did not, in fact, file the necessary application until 16 February 2009. I will make the assumption to which I have referred in order to give full consideration to the remaining factors referred to in Parker [2002] FCAFC 133 and to the interests of justice in the present case. As to the fourth ground (the subpoena ground), it is very difficult to understand the applicant's complaint in relation to the subpoena issued by him. The applicant did issue a subpoena to the respondent. Technical objections were taken to it. Nonetheless, at a listing which took place before 4 November 2008, the respondent did his best to produce the documents called for by the subpoena. No further call under the subpoena was made during the hearing before Cowdroy J. No application was made to Cowdroy J in respect of the production provided by the respondent in answer to the subpoena. There is no substance in this ground. As to the final ground of appeal (actual bias), I am not prepared to regard that ground as having any substance whatsoever in the absence of some evidence tending to support the various assertions of bias made by the applicant. The assertions which underpin this broad ground of appeal constitute very serious allegations against a judge of this Court. They must be distinctly made and, even at this early stage, must be demonstrated to have some proper basis both in fact and in law. Such allegations ought not be made in a Notice of Appeal or in a draft Notice of Appeal as bare assertions unsupported by any evidence whatsoever. I well appreciate that I am not presently dealing with an appeal from the judgment of Cowdroy J. I have under consideration the grant of an indulgence to the applicant, ie whether he should be permitted to file a Notice of Appeal out of time. A factor in my consideration of the present application, however, is the strength of the proposed appeal. In my view, in considering that aspect of the matter for the purposes of the present application, if allegations of this nature are to be made, I am entitled and, indeed, obliged, to require much more from the applicant than mere assertions made by him unsupported by any evidentiary material. In an application such as the present application, the Court will require admissible and probative evidence in support of such serious allegations before it will regard those allegations as having any substance at all. The nature and extent of that evidence will depend upon all of the circumstances of the case, including the seriousness of the allegations; the identity of the person against whom they are made; the circumstances in which they are made; and the time at which they are made.


case_text: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 , after reviewing a number of relevant authorities, von Doussa J said (at [38]): In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion. However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party's interests such as a hostile attitude throughout the hearing ( Sun Zhan Qui at 135 referring to Gooliah v Minister of Citizenship and Immigration (1967) 63 DLR (2d) 224) , or a failure to enquire into and to obtain readily available and important information relating to central matters for determination ( Sun Zhan Qui , and SBAN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 591 at [26] - [27]) an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias.


case_title: Transport Workers' Union of New South Wales v Australian Industrial Relations Commission [2008] FCAFC 26 ; (2008) 166 FCR 108


case_text: The respondent submitted further that there was no discrimination in relation to what it called the causation issue and the comparator issue. This terminology picks up what the High Court identified as two of the the three issues involved in determining whether there has been a contravention of the Disability Discrimination Act in Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62 ; (2003) 217 CLR 92 at 152, and in particular, [194]. 46 The relevant provision of the Disability Discrimination Act on which the applicant relies is s 15(2) of the Act, which reads as follows: "It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee's disability or a disability of any of that employee's associates: (a) ... (b) ... (c) by dismissing the employee; (d) by subjecting the employee to any other detriment." That provision requires a reference to s 5(1) of the Act which is headed "Disability discrimination" and provides: "For the purpose of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability." It is also important when looking at relevant provisions of the Disability Discrimination Act to refer to s 15(4) of the Act, which provides: "Neither paragraph (1)(b) nor (2)(c) renders unlawful discrimination by an employer against a person on the ground of the person's disability, if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability: (a) would be unable to carry out the inherent requirements of the particular employment;" 47 The first question to ask by reference to the provisions of the Disability Discrimination Act , is has the applicant been subjected to a detriment? The answer to that question depends upon the entitlement of the respondent to require the applicant to undergo an examination by a psychiatrist.


case_text: The following principles are well established. An employer may give an employee a lawful and reasonable direction, and it is the common law obligation of an employee to obey the lawful and reasonable commands or directions of the employer. In McManus v Scott-Charlton (1996) 70 FCR 16 , Finn J said at 21: "The accepted view in this Court is that it is the common law obligation of an employee to obey the lawful and reasonable commands or directions of the employer: see Australian Telecommunications Commission v Hart (1982) 65 ALR 41 ; Bayley v Osborne (1984) 4 FCR 141 ; for a different view on the matter of reasonableness see 10 Halsbury's Laws of Australia, 'Employment', par 165-265, but cf W B Creighton, W J Ford and R J Mitchell, Labour Law (2nd ed, 1993), pars 8.2-8.8. ... The 'standard or test' of the lawfulness of a command or direction that has been adopted in this Court for common law purposes is that of Dixon J in R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday [1938] HCA 44 ; (1938) 60 CLR 601 at 621-622: If a command relates to the subject matter of the employment and involves no illegality , the obligation of the servant to obey it depends at common law upon its being reasonable. In other words the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of services and are reasonable.' (Emphasis added). ... The need for some such limitation is patent: employment does not entail the total subordination of an employee's autonomy to the commands of the employer. As was said by the President in Australian Tramways Employees' Association v Brisbane Tramways Co Ltd (1912) 6 CAR 35 at 42: 'A servant has to obey lawful commands, not all commands. The servant does not commit a breach of duty if he refuse[s] to attend a particular church, or to wear a certain maker's singlets. The common law right of an employee is a right to wear what he chooses, to act as he chooses, in matters not affecting his work.' There are obvious, and powerful, considerations of civil rights and liberties and of due process which inform this. These need not be laboured here although they are of no little significance in the resolution of this case." 49 It is also an established principle that it is reasonable to direct an employee to attend a medical examination to determine whether the employee is fit to perform his or her duties and whether he or she can do so safely. In Victoria, duties are cast upon employers by the Occupational Health and Safety Act 2004 (Vic). Section 21 provides: "(1) An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health." (2) Without limiting sub-section (1), an employer contravenes that sub-section if the employer fails to do any of the following ... (d) provide, so far as is reasonably practicable, adequate facilities for the welfare of employees at any workplace under the management and control of the employer; (e) provide such information, instruction, training or supervision to employees of the employer as is necessary to enable those persons to perform their work in a way that is safe and without risks to health." Section 22(1) provides: "An employer must, so far as is reasonably practicable (a) monitor the health of employees of the employer; and (b) monitor conditions at any workplace under the employer's management and control; and (c) provide information to employees of the employer (in such other languages as appropriate) concerning health and safety at the workplace, including the names of persons to whom an employee may make an enquiry or complaint about health and safety."


case_title: Blackadder v Ramsay Butchering Services Proprietary Limited [2002] FCA 603 ; (2002) 118 FCR 395

case_text: In Blackadder v Ramsay Butchering Services Pty Ltd [2002] FCA 603 ; (2002) 118 FCR 395 , Madgwick J considered the issue of a requirement of an employer in New South Wales for a reinstated employee to undergo a medical examination before reporting for work on reinstatement. Madgwick J said, at 411: "An employer has, as indicated above, strict obligations under the NSW legislation to ensure the safety and well-being of its employees. The importance of occupational health and safety is also reflected in the Act. Whilst an AWA, in general, prevails over conditions of employment specified in State laws to the extent of any inconsistency, provisions which relate to certain matters, such as occupational health and safety, operate subject to any relevant State law (see s 170VR(2) of the Act). It is in my opinion, essential for compliance with the above duties, that an employer be able, where necessary, to require an employee to furnish particulars and/or medical evidence affirming the employee's continuing fitness to undertake duties. Likewise, an employer should, where there is a genuine indication of a need for it, also be able to require an employee, on reasonable terms, to attend a medical examination to confirm his or her fitness. This is likely to be particularly pertinent in dangerous work environments. Abattoirs entail obvious risks, among other things, of injuries from the repetitive use of knives at speed, and to the spinal column from the necessity to twist, bend and/or lift. The question whether it is reasonable for an employer to request an employee to attend a medical examination will always be a question of fact as will the question of what are reasonable terms for the undertaking of the medical examination. The matters will generally require a sensitive approach including, as far as possible, respect for privacy. Nevertheless, I assume that there now should be implied by law into contracts of employment terms such as those set out in the first two sentences of the preceding paragraph, on the basis that such terms pass the test of 'necessity' accepted by McHugh and Gummow JJ in Byrne v Australian Airlines Ltd [1995] HCA 24 ; (1995) 185 CLR 410 at 450." Those observations of Madgwick J were not disturbed on appeal to the Full Court of the Federal Court and finally on appeal to the High Court, which upheld Madgwick J's decision in whole: [2005] HCA 22 ; (2005) 221 CLR 539. 51 As I have already noted, an employer has an obligation under the Occupational Health and Safety Act 2004 (Vic) to provide a safe place of work. In carrying out and discharging that obligation, an employer may, from time to time, need to assess and determine whether an employee suffers from a disability that might affect his work. The employer might need to have regard to the nature and consequences of the employee's disability in relation to the workplace in which the employee works. 52 As I noted earlier, s 15(4)(a) of the Disability and Discrimination Act does not render a dismissal unlawful where the disability prevents the employee from carrying out inherent requirements of his or her work. It is because of those matters that it is appropriate that an employer be able to obtain medical information about an employee that might be relevant to the performance of his or her work. It follows, in my view, that there are circumstances in which a requirement to provide medical information to one's employer, provided it is made on reasonable terms and is shown to be reasonably necessary, does not constitute a detriment in employment but is, as Madgwick J observed, a necessary part or an incident of the employment. 53 I consider such circumstances to be present here, where there is a history of absences due to a medical condition, where there are inconsistencies in the information available to the employer in relation to the state of the employee's health, and where there are a number of absences for which no details or reasons have been given. In this respect, I refer again to the absences that occurred on and between 5 December 2007 and 6 May 2008. 54 In my opinion, it was reasonable, and probably necessary, for the respondent in this case to find out more about the applicant's condition, which included the obtaining of a report from a psychiatrist, especially having regard to the unexplained absences. 55 I am satisfied that there is no serious issue to be tried as to whether the respondent has subjected the applicant to a detriment within the meaning of that expression in s 15(2) of the Disability Discrimination Act . 56 Even if there was a serious issue that the respondent has subjected the applicant to a detriment, it is necessary also for the applicant to establish that there is a serious issue to be tried as to whether the requirement of the employer entails discrimination on the ground of the disability. In this respect, I refer to s 5(1) of the Disability Discrimination Act , which requires there to be established that the applicant has been treated less favourably than the employer would treat a person without the disability. This raises what I called earlier the causation issue and the comparator issue.


case_outcome: referred to

case_text: Market Wizard was followed by Moynihan J in Australian Securities and Investments Commission v Online Investors Advantage Inc [2005] QSC 324.


case_text: A similar issue arose in Re Market Wizard Systems Ltd [1998] 2 BCLC 282. A company marketed a computer system and provided purchasers with daily information. The system analysed that information to generate buy, sell or hold signals in respect of options in each of 12 traded stocks. The signals showed the customer whether they should be neutral, long or short on a given day, and whether they should buy, sell or hold. 19 On behalf of the company it was argued that the system was simply a matter of calculation based on historical data and the updates put in by the customer and was no more than a "sophisticated and technologically based 'calculator'". Carnwath J in the English High Court rejected this argument (at [35]). In his Lordship's view, the argument might have had some substance if the program only provided a convenient means of extracting and analysing data as to historical movements in the market without offering any interpretation of that information as a guide to future action. The promotional material of the company, however, was inconsistent with the limited function suggested. The whole purpose of the program, as described by its inventor, was directed towards "the use of parabolas in determining the future direction of market price". 20 Market Wizard was followed by Moynihan J in Australian Securities and Investments Commission v Online Investors Advantage Inc [2005] QSC 324. 21 Market Wizard is supportive of the decision in the present case. Indeed, the legislation under consideration in Market Wizard (the Financial Services Act 1986 (UK) Sch 1, Pt II, par 15) was more restrictive than the Corporations Act provision in that it was expressed in terms of giving to investors "advice on the merits of their purchasing, selling, subscribing for or underwriting an investment". As already mentioned, "financial product advice" as defined in s 766B is not limited to recommendations or opinions directed towards any particular transaction or any particular course of action the recipient might have in mind. 22 In the present case there has been, first, an expression of opinion that, in specified circumstances arising from a particular kind of market analysis, trading in a particular way is likely to be profitable. Secondly, there is the provision of technical aids that assist in identifying those circumstances from day to day. The combined effect is the provision of financial product advice within the meaning of the statute. 23 As to the intent element of "financial product advice", there could be no doubt, and the defendants admit, that the statements and conduct of Oxford and Mr Moore could reasonably be regarded as being intended to have the relevant influence; that is to say the objective test of par (b) of the definition is satisfied. 24 I find therefore that Oxford and Mr Moore have contravened ss 911A and 911B of the Corporations Act . 25 Section 12DA(1) of the ASIC Act prohibits conduct in trade and commerce in relation to financial services that is misleading and deceptive or likely to mislead and deceive.


case_text: In Re Evandale Estates Ltd (Supreme Court of Victoria, June 1962, unreported), Adam J directed an amendment as follows: The adoption and coming into operation of this Scheme of Arrangement shall for the purpose of any Statute of Limitations be an acknowledgement. 16 I do not purport to define or circumscribe the circumstances in which the Court may properly exercise the discretion to approve subject to alterations. The circumstances in which the Court may be asked to exercise the power vary. For example, the purpose may be to overcome minor technical errors or oversights present in the scheme as agreed to by the shareholders (see, for example, Re H Craig Pty Ltd ); to bring the scheme as agreed to by them into line with the explanatory statement that was sent to them (see, for example, Re Permanent Trustee Co Ltd ); or to protect creditors (see, for example, Re Evandale Estates Ltd ). The alterations may be suggested by the plaintiff or by the Court. Apparently, however, the plaintiff would be entitled, if faced with alterations on which the Court insisted but to which it did not agree, to withdraw its application for approval.


case_text: In Re H Craig Pty Ltd (1971-1976) CLC 40-026, Mitchell J approved of a scheme subject to several minor alterations. 16 I do not purport to define or circumscribe the circumstances in which the Court may properly exercise the discretion to approve subject to alterations. The circumstances in which the Court may be asked to exercise the power vary. For example, the purpose may be to overcome minor technical errors or oversights present in the scheme as agreed to by the shareholders (see, for example, Re H Craig Pty Ltd ); to bring the scheme as agreed to by them into line with the explanatory statement that was sent to them (see, for example, Re Permanent Trustee Co Ltd ); or to protect creditors (see, for example, Re Evandale Estates Ltd ). The alterations may be suggested by the plaintiff or by the Court. Apparently, however, the plaintiff would be entitled, if faced with alterations on which the Court insisted but to which it did not agree, to withdraw its application for approval.


case_title: Re Investorinfo Limited [2005] FCA 1848

case_text: In Re Investorinfo Limited [2005] FCA 1848 , Gyles J approved a scheme subject to an alteration that was designed to overcome what his Honour described as "a technicality arising from the drafting of the scheme" (at [8]).


case_text: In Re Permanent Trustee Co Ltd [2002] NSWSC 1177 ; (2002) 43 ACSR 601 , Barrett J approved a scheme subject to alterations which his Honour described as "peripheral" (at [21]). His Honour stated that the scheme in respect of which approval was sought differed in certain respects from the form of scheme that had been sent to members in accordance with the orders of the court previously made. Barrett J added (at [21]): It is clear, however, that the changes or differences are of a minor and technical kind and that their effect is to improve the smooth working of the scheme. 16 I do not purport to define or circumscribe the circumstances in which the Court may properly exercise the discretion to approve subject to alterations. The circumstances in which the Court may be asked to exercise the power vary. For example, the purpose may be to overcome minor technical errors or oversights present in the scheme as agreed to by the shareholders (see, for example, Re H Craig Pty Ltd ); to bring the scheme as agreed to by them into line with the explanatory statement that was sent to them (see, for example, Re Permanent Trustee Co Ltd ); or to protect creditors (see, for example, Re Evandale Estates Ltd ). The alterations may be suggested by the plaintiff or by the Court. Apparently, however, the plaintiff would be entitled, if faced with alterations on which the Court insisted but to which it did not agree, to withdraw its application for approval.


case_text: For an issue estoppel to arise, (1) the same question of fact or law must necessarily have been decided; (2) by a judicial decision that was final; and (3) the parties to the earlier judicial decision or their privies must be the same persons as the parties in which the estoppel is raised; see Kuligowski v Metrobus [2004] HCA 34 (" Kuligowski ") at [21]; Blair v Curran [1939] HCA 23 ; (1939) 62 CLR 464 (" Blair v Curran ") at 531 532. 47 It is also true that this finding necessarily established the legal foundation or justification for the conclusion which his Honour reached; it was legally indispensable to the conclusion; see Blair v Curran at 531 532.


case_text: However, the effect of what was said in Lomas is that under the statutory scheme which relates to opposition proceedings, the decision cannot be said to be final. Because of the nature of opposition proceedings, a decision in an appeal under s 56 of the Act cannot, as a matter of law, finally determine the rights of the parties; see Carr v Finance Corporation of Australia [1981] HCA 20 ; (1980) 147 CLR 246 at 248, 253-254; Computer Edge Pty Limited v Apple Computer Inc [1984] HCA 47 ; (1984) 54 ALR 767 at 767 768.


case_outcome: considered

case_text: Lomas was criticised by Gyles J in Clinique Laboratories Inc v Luxury Skin Care Brands Pty Limited (2003) 61 IPR 130 ( "Clinique ") at [10] [13]. His Honour pointed out at [13] that the consequence of the approach stated in Lomas is that a party can oppose registration and, even if unsuccessful on an appeal under s 56 , can then bring expungement proceedings on precisely the same ground. 14 The respondent submitted that it was unnecessary for me to resolve the dilemma posed by the remarks of Gyles J in Clinique . Counsel for the respondent, in support of this submission, relied upon an express finding made by Cooper J at [6] of the decision. 15 There, Cooper J found that the applicant failed to make out its objection on the balance of probabilities. I will deal later in my judgment with the significance of this finding. 21 Here the difficulty is not merely the existence of the debate between the Lomas and Clinique views. The difficulty arises from a recent decision of a Full Court in Woolworths Limited v BP plc [2006] FCAFC 52 (" Woolworths v BP "). 27 In coming to that view his Honour referred to Lomas and to the decision of Bennett J in Torpedoes Sportswear Pty Limited v Thorpedo Enterprises Pty Limited [2003] FCA 901 ; (2003) 132 FCR 326 (" Torpedoes") in which her Honour applied the "should clearly not be registered" test. Cooper J also referred to the remarks of Gyles J in Clinique at [12] [13] that the question is treated as open. 34 In Clinique , Gyles J recognised that it is a consequence of the reasoning in Lomas and Torpedoes that a party can oppose the registration of a mark and, even if unsuccessful on appeal, can then bring expungement or revocation proceedings based on the same ground as was unsuccessfully relied on in the opposition proceedings. 51 Nevertheless, whilst of course expressing no concluded view, the considerations pointed to by Gyles J in Clinique may well suggest that if the applicant fails at the final hearing on the grounds under ss 42 and 60, it would be appropriate for me to order that the costs of the final hearing, at least in relation to those issues, be paid by the applicant on an indemnity basis. I certify that the preceding fifty one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 31 May 2006 Counsel for the Applicant: Mr R Cobden SC Solicitor for the Applicant: Bennett & Philp Solicitors Counsel for the Respondent: Ms J Baird and Ms L Evans Solicitor for the Respondent: Griffith Hack Date of Hearing: 25 May 2006 Date of Judgment: 31 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/647.html


case_title: Computer Edge Pty Limited v Apple Computer Inc [1984] HCA 47 ; (1984) 54 ALR 767


case_text: Lomas and Torpedoes were followed by Lander J in Cowa Company Limited v NV Organon (2005) 223 ALR 27 although his Honour had reservations about the test to be applied; see [123] [141]. Nevertheless, he considered that he was bound to follow the decisions that had applied the test stated in Lomas.


case_text: The respondents contend that the estoppel arises from a decision of Cooper J in Health World Limited v Shin-Sun Australia Pty Limited [2005] FCA 5 ("the decision") which was handed down on 11 January 2005. 4 The decision was an appeal under s 56 of the Trade Marks Act 1995 (Cth) ("the Act ") from a decision of the Registrar of Trade Marks dismissing the applicant's opposition to the respondent's mark. The applicant and the first respondent were parties to the decision. Cooper J dismissed the appeal. 5 In the proceedings which were the subject of the decision, the applicant relied upon the grounds of opposition stated in ss 42(b) and 60 of the Act . Those grounds raised the issue of whether the respondent's mark was substantially identical, or deceptively similar to the Inner Health Plus mark. 6 Cooper J found that the respondent's mark was not substantially identical, or deceptively similar to the Inner Health Plus Mark. 7 In the present proceedings, the applicant seeks, inter alia , an order under s 88 of the Act rectifying the Register of Trade Marks by cancelling the respondent's mark. Section 88(2)(a) of the Act provides that one of the grounds on which such an application may be made is "any of the grounds on which the registration of the trade mark could have been opposed". 8 The applicant relies in support of its application for cancellation upon, inter alia, ss 42 and 60 of the Act . It asserts that the respondent's mark is substantially identical or is deceptively similar to, the Inner Health Plus Mark. 16 The preliminary questions are as follows:- "1. Is the applicant estopped in these proceedings by the decision of Cooper J delivered in Health World Limited v Shin-Sun Australia Pty Limited [2005] FCA 5 delivered 11 January 2005 (the 'Decision') from alleging that the trade mark 'HEALTHPLUS', the subject of Australian trade mark number 874755 (the 'Respondents' Mark'), is substantially identical with, or deceptively similar to, the trade mark 'INNER HEALTH PLUS' in relation to which the pro-biotic products 'Inner Health Plus' and 'Inner Health Plus Dairy Free' manufactured by the applicant were marketed, sold and offered for sale in the period March 2000 to 7 May 2001. 2. Is the applicant estopped in these proceedings by the Decision from seeking an order pursuant to s88(2)(a) of the Trade Marks Act 1995 ('TM Act') that the Register of Trade Marks be rectified by the cancellation or removal of the Respondents' Mark (Australia trade mark 874755) relying on any of the grounds comprised in: (i) s41 of the TM Act, as pleaded in paragraphs 13 and 14 of the statement of claim filed in these proceedings ('Claim'); (ii) s42 of the TM Act, as pleaded in paragraphs 15 and 16 of the Claim;\ (iii) s43 of the TM Act, as pleaded in paragraphs 17 and 18 of the Claim; (iv) of the TM Act, as pleaded in paragraphs 19 and 20 of the Claim; (v) s60 of the TM Act, as pleaded in paragraphs 21 to 24 of the Claim." 17 The order for the preliminary questions was made by consent. Nevertheless, before making the orders, I raised with the parties my concern about the utility of the order in the present case.


case_text: The same approach has been applied in patent proceedings; see Imperial Chemical Industries PLC v EI Dupont De Nemours & Co [2002] AIPC 91-818 at [6] [7]. 42 In trade mark proceedings this approach seems to me to follow from the scheme of the Act and in particular from ss 88(1) and (2). Those subsections grant to an aggrieved person the right to seek rectification of the Register on "any grounds on which the registration of the trade mark could have been opposed under Division 2 of Part 5".


case_title: Kuligowski v Metrobus [2004] HCA 34

case_text: For an issue estoppel to arise, (1) the same question of fact or law must necessarily have been decided; (2) by a judicial decision that was final; and (3) the parties to the earlier judicial decision or their privies must be the same persons as the parties in which the estoppel is raised; see Kuligowski v Metrobus [2004] HCA 34 (" Kuligowski ") at [21]; Blair v Curran [1939] HCA 23 ; (1939) 62 CLR 464 (" Blair v Curran ") at 531 532. 39 Whether or not a decision in opposition proceedings can give rise to an issue estoppel must depend upon the proper construction of the statutory language and the necessary implications which flow from it; Kuligowski at [25], [36] and [37].


case_outcome: followed

case_text: The applicant seeks to meet this contention by pointing to the structure of the Act which provides in Division 2 of Part 8 for rectification proceedings on grounds which include grounds on which the registration of the mark could have been opposed. The applicant also points to the observations of a Full Court in Lomas v Winston Shire Council [2003] AIRC 91-839 (" Lomas ") at [17] [19]. 11 In Lomas it was not necessary for the Court to consider the nature of opposition proceedings or the standard of proof to be applied. However, the Court, at [18], described such proceedings as summary in nature. 12 The Full Court in Lomas went on to say at [18]:- "An unsuccessful opponent would always have the opportunity to bring an expungement proceeding if the opposition proceeding fails. In an expungement proceeding, the validity of a trade mark can be fully explored." 13 Lomas was criticised by Gyles J in Clinique Laboratories Inc v Luxury Skin Care Brands Pty Limited (2003) 61 IPR 130 ( "Clinique ") at [10] [13]. His Honour pointed out at [13] that the consequence of the approach stated in Lomas is that a party can oppose registration and, even if unsuccessful on an appeal under s 56 , can then bring expungement proceedings on precisely the same ground. 21 Here the difficulty is not merely the existence of the debate between the Lomas and Clinique views. The difficulty arises from a recent decision of a Full Court in Woolworths Limited v BP plc [2006] FCAFC 52 (" Woolworths v BP "). 27 In coming to that view his Honour referred to Lomas and to the decision of Bennett J in Torpedoes Sportswear Pty Limited v Thorpedo Enterprises Pty Limited [2003] FCA 901 ; (2003) 132 FCR 326 (" Torpedoes") in which her Honour applied the "should clearly not be registered" test. Cooper J also referred to the remarks of Gyles J in Clinique at [12] [13] that the question is treated as open. 34 In Clinique , Gyles J recognised that it is a consequence of the reasoning in Lomas and Torpedoes that a party can oppose the registration of a mark and, even if unsuccessful on appeal, can then bring expungement or revocation proceedings based on the same ground as was unsuccessfully relied on in the opposition proceedings. 36 Lomas and Torpedoes were followed by Lander J in Cowa Company Limited v NV Organon (2005) 223 ALR 27 although his Honour had reservations about the test to be applied; see [123] [141]. Nevertheless, he considered that he was bound to follow the decisions that had applied the test stated in Lomas. 37 The debate as to the appropriate test is but a reflection of a wider debate as to the nature of opposition proceedings. This is revealed in the description in Lomas at [18] of such proceedings as "quasi summary". 38 This debate turns upon the nature of the statutory scheme revealed in Divisions 1 and 2 of Part 4, Divisions 1 and 2 of Part 5 and Divisions 1 and 2 of Part 8 of the Act; see also ss 195 and 197 of the Act 40 Two Full Courts have stated in plain terms that if opposition proceedings fail, the validity of the trade mark can then be fully explored in revocation proceedings; see Lomas at [18] [19] and Woolworths v BP at [55]. 43 What follows from this, and from the observations in Lomas is that the decision on an appeal under s 56 does not necessarily decide the same issue and it is not a final decision. 44 Thus, in the present case, it would follow that the first two requirements for an issue estoppel have not been satisfied. 45 In my view, while recognising the force of Gyles J's remarks, it seems to me that I should follow the observations of the Full Court in Lomas. It is true that those observations were dicta, but they were clearly considered observations which I should follow, at least as a matter of judicial comity. 46 It is true as Ms Baird, for the respondent, forcefully submitted, that Cooper J's reasons for the decision did not depend upon whether the higher test of "should clearly not be registered" applies. Instead, his Honour was satisfied that the applicant failed on the balance of probabilities. 48 However, the effect of what was said in Lomas is that under the statutory scheme which relates to opposition proceedings, the decision cannot be said to be final. Because of the nature of opposition proceedings, a decision in an appeal under s 56 of the Act cannot, as a matter of law, finally determine the rights of the parties; see Carr v Finance Corporation of Australia [1981] HCA 20 ; (1980) 147 CLR 246 at 248, 253-254; Computer Edge Pty Limited v Apple Computer Inc [1984] HCA 47 ; (1984) 54 ALR 767 at 767 768.


case_text: Notwithstanding my doubts, I was persuaded by the submissions of the parties that the factors to which Branson J pointed in Reading Australia Pty Limited v Australian Mutual Provident Society [1999] FCA 718 , favoured the making of an order. 19 However, in light of an issue which emerged in the arguments of counsel on the hearing of the preliminary questions, I have serious doubts about whether the order should have been made. I appreciate that the issue which emerged was not apparent when the orders were made and no criticism is directed at counsel or their instructing solicitors. 20 It is simply an example of the problems which are sometimes thrown up by the desire to shorten proceedings through the mechanism of an order under O 29 r 2.


case_text: In coming to that view his Honour referred to Lomas and to the decision of Bennett J in Torpedoes Sportswear Pty Limited v Thorpedo Enterprises Pty Limited [2003] FCA 901 ; (2003) 132 FCR 326 (" Torpedoes") in which her Honour applied the "should clearly not be registered" test. Cooper J also referred to the remarks of Gyles J in Clinique at [12] [13] that the question is treated as open. 34 In Clinique , Gyles J recognised that it is a consequence of the reasoning in Lomas and Torpedoes that a party can oppose the registration of a mark and, even if unsuccessful on appeal, can then bring expungement or revocation proceedings based on the same ground as was unsuccessfully relied on in the opposition proceedings. 36 Lomas and Torpedoes were followed by Lander J in Cowa Company Limited v NV Organon (2005) 223 ALR 27 although his Honour had reservations about the test to be applied; see [123] [141]. Nevertheless, he considered that he was bound to follow the decisions that had applied the test stated in Lomas.


case_text: Here the difficulty is not merely the existence of the debate between the Lomas and Clinique views. The difficulty arises from a recent decision of a Full Court in Woolworths Limited v BP plc [2006] FCAFC 52 (" Woolworths v BP "). 22 In Woolworths v BP , Sundberg and Bennett JJ (Black CJ dissenting) considered that the question of the standard of proof to be applied by a single judge in considering an appeal under s 56 of the Act is an open question. Their Honours said at [84] that it was appropriate for this question to be considered by a Full Court and granted leave to appeal. 23 The standard of proof to be applied in an appeal against an unsuccessful opposition is central to the question of whether an estoppel arises in proceedings such as the present one. It goes to the nature of the opposition proceeding, the structure of the Act and the question of whether the decision on the appeal is final or interlocutory. 24 Thus it would appear that a central plank on which the estoppel question turns will be determined in the not too distant future, by a Full Court. That determination will of course be binding upon me. 40 Two Full Courts have stated in plain terms that if opposition proceedings fail, the validity of the trade mark can then be fully explored in revocation proceedings; see Lomas at [18] [19] and Woolworths v BP at [55].


case_text: A failure to deal with or raise the matter in a protection visa application is not 'information': Applicant S301/2003 v the Minister for Immigration and Multicultural Affairs [2006] FCAFC 155 at [19] . The reference in the present case to non-provision of a statement when an applicant is specifically asked to do so, given the close relationship between the parties, can properly be treated as part of an appropriate reasoning process to reach the conclusion made in this case on her credibility. The absence of the corroboration is a fact and is not information. It has been used as a step in the reasoning process and not as information. The fact is that the request was not met. It was open on this material for the Tribunal to form the view that the appellant must have been aware of the fact that it was not provided. 15 Accordingly, the challenge made under s 424A must fail. It is thus not necessary to deal with the second ground of appeal, namely whether s 424A(3)(b) applies to information given by the husband. This issue raises a question as to whether the applications of the applicant and her husband should be treated as a joint application or as separate applications. There are different views in the Court on this aspect and, because it is not necessary for me to determine this question, I do not make any decision on this part. 16 The third ground of appeal relates to an asserted duty of the Tribunal to make inquiries under s 427. The reason why the Tribunal did not make inquiries in this case are set out in the reasons and I can see no error in them. The reasoning is to the effect that the husband had been specifically requested to provide information and a Statutory Declaration as to passports and visas, and yet for no apparent reason failed to do so, notwithstanding that he was aware of the request. The Tribunal could properly consider that before it made any investigation of its own it should be persuaded that the appellant had provided all relevant evidence at her disposal or at least explain why it is not provided. There is no general obligation on the Tribunal to make further inquiries and in my view the circumstances of this case were not such as to generate an obligation on the Tribunal to make further investigations in the absence of any indication that such enquiries would be futile. 17 On the state of the evidence before the Tribunal it was open to it to find that the husband was not prepared to corroborate the wife's case, and given that lack of co-operation, I can see no error in the Tribunal's reasoning to the effect that the visas were valid. I have not been referred to any appellable error in the reasons of the Federal Magistrate given the approach taken by the Tribunal on the findings open to it. 18 Accordingly, this appeal is dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 19 March 2007 Counsel for the Applicant: Darren Jenkins Solicitor for the Applicant: None Counsel for the First Respondent: Tim Reilly Solicitor for the First Respondent: Blake Dawson Waldron Date of Hearing: 5 March 2007 Date of Judgment: 19 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/332.html


case_text: The absence of a response by her husband in my opinion was not 'information' but rather an observation and part of the reasoning process about the deficiency in the evidence before the Tribunal: see WAGP of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276 at [26] - [29] .


case_text: To relax the conclusiveness of the affidavit of documents a rule was introduced allowing the court to order specific discovery by requiring a party to state whether one or more specified documents are or have been in his possession or power: White v Spaffard & Co [1901] 2 KB 241; Weir v Greening [1957] VR 296, 298. In the Federal Court the rule is O 15, r 8. The requirements to be met by a party applying for particular discovery were considered in Beecham Group Ltd v Bristol-Myers Co [1979] VR 273, 278-282. In substance, to justify the making of an order the party applying must identify the document in issue and satisfy the court that there is a "reasonable ground for being fairly certain" that the document is relevant and is (or has been) in his opponent's possession.


case_text: It was once a fundamental principle that a party could not be ordered to produce a document unless he (or she) had directly or indirectly admitted it to be in his possession and that it was relevant: Daniell's Chancery Practice (7 th ed, 1901) 1565; Storey v Lennox (1836) 1 Keen 341. A party's oath that a particular document was irrelevant (which would include an indirect statement imputed from the omission of a document from an affidavit of documents) was conclusive unless the court was reasonably satisfied from certain definite sources that the party had in his possession other relevant documents: Lyell v Kennedy (1884) 27 Ch D 1, 20. The sources to which the court could turn were the affidavit of documents itself ( Hall v Truman, Hanbury, & Co (1885) 29 Ch D 307, 319), a document referred to in the affidavit ( Lyell v Kennedy ), the pleadings ( Jones v Monte Video Gas Co (1880) 5 QBD 556) and documents referred to in answers to interrogatories. British Association of Glass Bottle Manufacturers, Limited v Nettlefold [1912] 1 KB 369 extended the sources to include any that contained an admission of the existence of a discoverable document.


case_text: Generally speaking, it was not possible to file a contentious affidavit to show that a party had not discovered all relevant documents: Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55, 61. The only remedy which a party had in order to show that an adversary's affidavit of documents was deficient was to obtain leave to administer interrogatories for that purposes: Jones v Monte Video Gas Co (1880) 5 QBD 556, 558; Newall v Telegraph Construction Company (1866) LR 2 Eq 756. The circumstances in which leave to administer interrogatories would be allowed were considered in Hall v Truman, Hanbury, & Co (1885) 29 Ch D 307. When the court was satisfied that a party might have other relevant documents, it could order a further affidavit confined to the particular documents believed to have been omitted ( Vyse v Foster (1872) LR 13 Eq 602) or a further general affidavit ( Saull v Browne (1874) LR 17 Eq 402).


case_text: The issue here is whether the applicant should make particular discovery in relation to its claim of insufficiency, one of the grounds upon which the validity of the patents in suit are challenged. The sufficiency of a patent (as to which see s 40(2)(a)) is a pure question of fact in respect of which there may be discovery ( F Hoffman-La Roche AG v Chiron Corporation (2000) 171 ALR 295, 299). The question to be answered is whether "the disclosure [will] enable the addressee of the specification to produce something within each claim without new inventions or additions or prolonged study of matters presenting initial difficulty": Kimberly-Clark Australia Pty Ltd v Arico Trading International Pty Ltd [2001] HCA 8 ; (2001) 207 CLR 1, 17. There is some uncertainty regarding the date at which sufficiency is to be determined. According to Blanco White's Patents for Inventions (1983) at [4-508] it is the date of the publication of the specification. On the other hand in Pfizer-Overseas Pharmaceuticals v Eli Lilly and Co [2005] FCAFC 224 , [328] the Full Federal Court decided that sufficiency should be assessed in light of the common general knowledge and the art immediately before the priority date. The priority dates of the patents in suit are 19 July 1993.


case_text: It was once a fundamental principle that a party could not be ordered to produce a document unless he (or she) had directly or indirectly admitted it to be in his possession and that it was relevant: Daniell's Chancery Practice (7 th ed, 1901) 1565; Storey v Lennox (1836) 1 Keen 341. A party's oath that a particular document was irrelevant (which would include an indirect statement imputed from the omission of a document from an affidavit of documents) was conclusive unless the court was reasonably satisfied from certain definite sources that the party had in his possession other relevant documents: Lyell v Kennedy (1884) 27 Ch D 1, 20. The sources to which the court could turn were the affidavit of documents itself ( Hall v Truman, Hanbury, & Co (1885) 29 Ch D 307, 319), a document referred to in the affidavit ( Lyell v Kennedy ), the pleadings ( Jones v Monte Video Gas Co (1880) 5 QBD 556) and documents referred to in answers to interrogatories. British Association of Glass Bottle Manufacturers, Limited v Nettlefold [1912] 1 KB 369 extended the sources to include any that contained an admission of the existence of a discoverable document. 2 Generally speaking, it was not possible to file a contentious affidavit to show that a party had not discovered all relevant documents: Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55, 61. The only remedy which a party had in order to show that an adversary's affidavit of documents was deficient was to obtain leave to administer interrogatories for that purposes: Jones v Monte Video Gas Co (1880) 5 QBD 556, 558; Newall v Telegraph Construction Company (1866) LR 2 Eq 756. The circumstances in which leave to administer interrogatories would be allowed were considered in Hall v Truman, Hanbury, & Co (1885) 29 Ch D 307. When the court was satisfied that a party might have other relevant documents, it could order a further affidavit confined to the particular documents believed to have been omitted ( Vyse v Foster (1872) LR 13 Eq 602) or a further general affidavit ( Saull v Browne (1874) LR 17 Eq 402).


case_title: Jones v Monte Video Gas Co (1880) 5 QBD 556


case_title: Kimberly-Clark Australia Pty Ltd v Arico Trading International Pty Ltd [2001] HCA 8 ; (2001) 207 CLR 1


case_title: Lyell v Kennedy (1884) 27 Ch D 1


case_title: Newall v Telegraph Construction Company (1866) LR 2 Eq 756


case_title: Pfizer-Overseas Pharmaceuticals v Eli Lilly and Co [2005] FCAFC 224


case_title: Saull v Browne (1874) LR 17 Eq 402


case_title: Storey v Lennox (1836) 1 Keen 341


case_title: Vyse v Foster (1872) LR 13 Eq 602


case_title: Weir v Greening [1957] VR 296


case_title: White v Spaffard & Co [1901] 2 KB 241


case_text: The facts of this case are quite close to the facts of three unanimous decisions of Full Courts of this Court. The members of each court were different so that the decisions represent the views of nine judges of this Court. The decisions are NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 (Beaumont, Merkel and Hely JJ), NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (French, Emmett and Dowsett JJ) and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (Black CJ, Sundberg and Bennett JJ). In each case the court emphasised the proposition that the task of the Minister, through his delegate, and the Refugee Review Tribunal on appeal, pursuant to s 65 of the Migration Act 1958 (Cth), is to consider whether they are satisfied that the requirements for the grant of a visa have been satisfied. In NAVX at paragraph [5] the Full Court said this: "In assessing the adequacy of [the Tribunal's] reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application." I note that the appellant in that case was also a Chinese national who claimed refugee status on the basis of his fear of persecution as a Falun Gong practitioner.


case_title: NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208


case_title: NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287


case_text: Senior counsel also submitted that there was no real conflict between the roles which Mr Herbert and Mr Read might have to perform as liquidators of the company and as provisional liquidators of Westpoint Management Pty Ltd. He submitted that the authorities are to the effect that it is desirable that where companies in a group go into liquidation, to the extent that it is possible to do so without there being a real conflict of interest, one liquidator should be appointed to the companies in liquidation. Mr Colvin SC relied upon the following observations of Lehane J in the case of Re Chilia Properties Pty Ltd, (admin apptd) (1997) 154 ALR 179 at 180 ('Chilia') : '...it is well established that in the absence of any real, as opposed to theoretical, conflict of interest it is generally desirable that the external administration of a group of companies should be placed in the hands of one administrator.' 21 Mr Colvin SC further submitted that, where there were dealings within a group of companies between companies that were under the effective control of the same persons, in assessing real conflict, a distinction should be drawn between dealings which affected the interests of external creditors and other external interests, and those which did not. Mr Colvin SC also submitted that it is well accepted that the courts would appoint a single liquidator to a group of companies, notwithstanding that there might be some possible theoretical conflict, on the basis that if a real conflict emerged during the course of the administration, that the liquidator could then make alternative arrangements as to how to deal with the real conflict. The fact that there might be a theoretical conflict should not be an inhibition on the appointment of a single liquidator. 22 Further, senior counsel for ASIC, submitted that a relevant consideration to be taken into account is the expressed position of the creditors. He said that the secured creditor, represented by the receivers and managers of the company and the Australian Taxation Office both supported the appointment of Mr Herbert and Mr Read as liquidators. 32 Firstly, I agree that the observations made by Lehane J in Chilia , referred to above, state the principles to be applied in this case. The principles are also reflected in the following observations by Hoffmann J (as he then was) in Re Arrows Ltd [1992] BCC 121, which were cited with approval by Warren J in Sisu Capital : '...It is by no means uncommon in the case of the insolvency of a substantial group of companies for cross-claims and conflicts of interest to arise between companies within the group. That does not usually deflect the court from appointing a single firm of insolvency practitioners in the first instance to deal with the whole insolvency of the group, leaving the question of potential conflict of interests to be dealt with if and when it arises.'


case_text: Mr Thomson also referred to Sisu Capital Fund Ltd v Tucker [2005] EWHC 2170 (Ch) ('Sisu Capital') particularly at pars 103-115, of the judgment of Warren J, in support of the proposition that courts are not inhibited by the fact that there might be theoretical conflicts, where considering whether to appoint a single liquidator to a number of companies within a group of companies. 27 Mr Thomson made the similar arguments to those advanced by Mr Colvin SC against the proposition that because Mr Francis and Mr Ryan had already undertaken work in investigating the affairs of the company, it would be more efficient if they were appointed as the liquidators. He also submitted that if Mr Francis and Mr Ryan were appointed there might be some suspicion that they were not sufficiently independent of Mr Carey, because Mr Carey had appointed them to the position of administrators. 28 Mr Shaw, for North Sydney Finance and Emu Brewery Mezzanine, made submissions in support of the appointment of Mr Francis and Mr Ryan as liquidators. 32 Firstly, I agree that the observations made by Lehane J in Chilia , referred to above, state the principles to be applied in this case. The principles are also reflected in the following observations by Hoffmann J (as he then was) in Re Arrows Ltd [1992] BCC 121, which were cited with approval by Warren J in Sisu Capital : '...It is by no means uncommon in the case of the insolvency of a substantial group of companies for cross-claims and conflicts of interest to arise between companies within the group. That does not usually deflect the court from appointing a single firm of insolvency practitioners in the first instance to deal with the whole insolvency of the group, leaving the question of potential conflict of interests to be dealt with if and when it arises.'


case_title: Re Arrows Ltd [1992] BCC 121

case_text: Firstly, I agree that the observations made by Lehane J in Chilia , referred to above, state the principles to be applied in this case. The principles are also reflected in the following observations by Hoffmann J (as he then was) in Re Arrows Ltd [1992] BCC 121, which were cited with approval by Warren J in Sisu Capital : '...It is by no means uncommon in the case of the insolvency of a substantial group of companies for cross-claims and conflicts of interest to arise between companies within the group. That does not usually deflect the court from appointing a single firm of insolvency practitioners in the first instance to deal with the whole insolvency of the group, leaving the question of potential conflict of interests to be dealt with if and when it arises.'


case_text: In the RRT reasons, consideration is given to Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 187 ALR 574 (" Khawar" ). At page 26 of its reasons, the RRT concluded that, in the present case, the State was prepared to protect its citizens, and I can see no error in the reference to, or application of, the principles set out in Khawar . This was the sole ground relied on by the appellant. The RRT was prepared to accept that she was a member of the social group but did not accept that there was a lack of state protection. Therefore, the reasons of the RRT are consistent with Khawar . There is no substance in the ground of appeal raised. 8 Notwithstanding that the explanation for delay is not sufficient and that the applicant has made no submission of substance disclosing special reasons, I consider that the RRT reasons on their face do raise a question as to whether s 424A of the Migration Act 1958 (Cth) ("the Act ") has been breached. This section provides: " Section 424A Applicant must be given certain information (1) Subject to subsection (3), the Tribunal must: (a) give to the applicant , in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review ; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review ; and (c) invite the applicant to comment on it ... ... (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application ; or (c) that is non-disclosable information." ( Emphasis added) The onus of establishing a breach of s 424A is on the applicant. 13 After referring to Khawar , the RRT concluded on the country information that the government in Fiji had made a commitment to redressing gender discrimination and the law, particularly as it related to women and domestic violence. The RRT also noted that a new police commissioner had been appointed to increase the professionalism of the police force with an independent complaint mechanism, and that reports in the press indicated that the Fijian courts made judgments against male perpetrators of violence against women, including those in family situations. Accordingly, the RRT concluded that the case did not come within the principle set out in Khawar . The RRT also noted that there are non-government organisations of women's groups in Fiji who help women in domestic violence situations. The RRT concluded that, on the basis of the evidence before it, there was no real chance that the applicant would face persecution for any Convention reason should she return to Fiji. The reasons then proceed to note that she is married to an Australian citizen, that she is terrified of her former husband and that she is determined to gain custody of her children. The RRT reasons also state that the case merits consideration on humanitarian grounds. 14 On a reading of the RRT decision as a whole, it is not apparent whether or how the RRT used the material on the Departmental file. It is apparent that the RRT accepted that the applicant had suffered as she claimed and that she was a credible witness. The RRT decision turns on its acceptance and application of the principles laid down in Khawar in relation to state protection. Having regard to country information, which it cites in detail, the RRT concluded that there was no real chance of persecution if the applicant were returned to Fiji. In my view, the reasons for decision do not indicate that the RRT used the material in the file as a reason or part of any reason to reach its decision. The considerations discussed by the RRT in its decision indicate that the RRT used the file in the applicant's favour as to credibility. Accordingly, the primary obligation of s 424A(1) to make information that may be used by the RRT to affirm the decision under review available to the applicant has not been established in the present case. Therefore, there has been no breach of s 424A. 15 A second question that requires consideration in relation to s 424A is whether it can be said that the applicant or her agent have incorporated, adopted, or relied on the material in the departmental file before the RRT so that it can be said that the departmental file was information which the applicant gave to the RRT in the review application. 16 In the applicant's Application for Review to the RRT, there is a reference to the departmental file number and to reasons given by the applicant as to why she considers herself to be a refugee. In those reasons, she asserts that the case officer deprived her of the opportunity of an interview to enable her to explain her situation and the persecution she had suffered in Fiji. She says the case officer, on the application and information before him, was not able to fully understand the degree and seriousness of her claims. In my view, the fact of the file reference, of itself, does not amount to incorporation, adoption, or re-presentation of the material in the departmental file by the applicant or on her behalf to the RRT. The Appeal Book in this matter contains a letter from the solicitors and migration agents for the applicant wherein the following statements are made: 'We note that the delegate refused [the applicant's] protection visa application primarily on the ground that the persecution that [she] claims to have suffered was not Convention related. The RRT will note that this information is consistent with the claims put forward by [the applicant] in her original statement as confirmed by the statutory declaration presented by her siblings at the hearing.'


case_title: Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27

case_text: The relevant principles are those applied in Minister for Immigration and Multicultural v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27, NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 at [36] - [39] and SZEGY v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [8] and [20].


case_title: NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744


case_title: SZEGY v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2


case_text: Before moving to apply these considerations to the facts set out in the Primary Reasons, two further points must be made. First, the Court has a discretion whether or not to impose a penalty: s 719 of the WR Act and see also Australasian Meat Industry Employees' Union v Australia Meat Holdings (1998) 82 IR 76 at 78 and Victoria University of Technology v Australian Education Union (1999) 91 IR 96 at [33] (which considered the discretion to impose penalty under s 178 of the WR Act prior to substantial amendments to the WR Act in 2005). In other words, there is no principle that a Court must, in all cases of proven breach, impose a penalty: Victoria University of Technology v Australian Education Union (1999) 91 IR 96 at [33].


case_text: Secondly, although there were technically two breaches by Telstra (one of the 2005 Enterprise Agreement and one of the TRA), as the analysis of the facts in the Primary Reasons demonstrate, this is a case where the breaches arose out of substantially the same conduct, being conduct that "impose[d] cumulative obligations or obligations that substantially overlap[ed]": cf Gibbs v The Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216 at 223 and Clothing & Allied Trades Union of Australia v J & J Saggio Clothing Manufacturers Pty Ltd (1990) 34 IR 26 at 37.