case_text: third decision to which Interville referred was the decision of Emmett J in Kam Lai-Ha v McCusker [2000] FCA 1174 ; (2000) 49 IPR 44 at [9] . There, Emmett J observed that when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total it is always necessary for the Court to take a last look at the total to see whether "it looks wrong." The Court must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all of the offences. His Honour there referred to the decision of the High Court in Mill v The Queen [1988] HCA 70 ; (1988) 166 CLR 59 at 63, where the High Court made reference to the principle of totality stated in the leading text of Thomas, Principles of Sentencing. It seems to me that in the present case, the essential error which was made by the Magistrate was that his Honour failed to have regard to the principle of totality. His Honour took into account most of the matters which were put to him by Mr Lancaster, but he fell into error, albeit inadvertently, at least in part because of the inadvertent mistakes made in the submissions of the Crown. One of the matters which the learned Magistrate failed to take into account was the publicity which was given to Interville's offences. Mr Lancaster asked me to take that into the account on the question of deterrence. Whilst it has some bearing, it seems to me that I must, in accordance with the well-known principles referred to above, give some weight to the need for the factor of general deterrence to be taken into account in determining the appropriate penalty, notwithstanding the deterrent effect of the publicity. The Magistrate was also asked to take into account the fact that changes had been made in the administration and conduct of Interville's business. It appears that his Honour had regard to this. It is also important to bear in mind that Mr Phae is now, and was at the time when the matter came before the Magistrate, the only operating director. The other director, Mr Lee, had resigned from the company, and Mr Phae had implemented measures to prevent a recurrence of the offences. These measures included steps taken to prevent downloads and education of staff members. Mr Lancaster also asked me to take into account the fact that the company is not a large company, and that whilst the offences are to be dealt with upon the basis that the company is a corporate offender, I should approach the matter upon the basis of the size of the company. However, this raises a point to which the Crown referred, namely, that in the case of personal offenders, there is a greater range of punishments, which include imprisonment and community service. I therefore have to take this into account in assessing the appropriate penalty. Mr Lancaster accepted that the offence is a serious one. He submitted that the figure initially contemplated by the Magistrate of $17,000 was an appropriate approach because it starts with the $33,000 maximum figure and applies the relevant discounts. He also submitted that the figure of $500 per additional offence was appropriate. On the other hand, the Crown submitted that the sequence 21 offence should carry a larger penalty and that the other penalties of $2000 for sequences 22 to 40 were within the range and should remain. In my view, taking into account all of the matters which have been put to me this morning, the approach which I ought to take is that to which Emmett J referred in Kam Lai-Ha . I think this exposes the error in the Magistrate's reasoning and I would have thought that taking all these matters into account the appropriate penalty ought to be $30,000. In arriving at that figure, I have determined that the appropriate penalty for sequence 21 should be $20,000 and that the amount for each of sequences 22 to 40 should be $1,000. This would bring the total to $39,000 but I will reduce it to $30,000 because, in my view, to order more than $30,000 in total would "look wrong". In coming to this view I have taken into account the fact that Interville has incurred additional legal expenses as a result of the Magistrate's inadvertent error. I do not think it is necessary to engage in a mathematical exercise for the reasons that I have referred to above.


case_outcome: referred to

case_text: also referred to Le v R [2007] FCA 1463 ; (2007) 74 IPR 1 at [20] , in which the Court recorded the submissions of the Crown in relation to the matters to be taken into account. In particular, reference was made at subparagraph 29 of [20] to the need to weigh all relevant factors and in doing so to avoid a mathematical approach in which there are increments to or decrements from a predetermined range of sentences.


case_text: have been a number of observations by the courts on the fact that a plea of guilty is ordinarily a matter to be taken into account in mitigation, because it is usually some evidence of remorse, and in particular, the community is spared the expense of a contested trial: see, eg, Siganto v the Queen [1998] HCA 74 ; (1998) 194 CLR 656 at 663-4, Cameron v The Queen [2002] HCA 6 ; (2002) 209 CLR 339 at [22] .


case_text: the written submissions for Interville, reference was made to three decisions which are of assistance in determining the appeal. The first is a decision of Rares J in Vu v New South Wales Police Service [2007] FCA 1508 ; (2007) 73 IPR 531. At [57] , his Honour there observed that it is impossible to have regard to each of the matters referred to in section 16A(2) separately. Rather, the Court has to approach the determination of a sentence by taking into account all of the matters that are relevant. His Honour also said that in general, the sentencing court will reach a conclusion that a particular penalty is the one that should be imposed after weighing all of the relevant factors.


case_outcome: cited

case_text: applicant contended that this approach was contrary to the evidence and contrary to the principles in Lees , which have not been disturbed by the decision in Telstra Corporation Ltd v Hannaford [2006] FCAFC 87 ; (2006) 151 FCR 253 and which have been followed in Australian Postal Corporation v Mowbray & Anor [2003] FCA 1258 ; (2003) 77 ALD 440, Oudyn and Duong v Australian Postal Corporation (2005) 41 AAR 288.


case_text: first question is said to be sourced in the ground that the Tribunal should have found, on the proper application of s 25 of the AAT Act and ss 61 and 62 of the SRC Act, that its jurisdiction was limited to reviewing a decision made pursuant to ss 16 and 20 of the SRC Act in respect of the cessation, as at 1 December 2004, of compensation payments for an accepted injury of the applicant of 'adjustment disorder with features of anxiety and depression and chronic soft tissue injury': Lees v Comcare (1999) 56 ALD 84 and Australian Postal Corporation v Oudyn (2003) 73 ALD 659. In short, it should have found that it did not have jurisdiction at large to hear and determine whether an injury, other than the accepted injury, was compensable under s 14 of the SRC Act. Where the Tribunal has no jurisdiction under s 25 of the AAT Act to make or review a determination under s 14 of the SRC Act, the parties cannot consent to the Tribunal being vested with such jurisdiction: R v Moodie; Ex parte Mithen (1977) 17 ALR 219 and Rosillo v Telstra Corporation Ltd (2003) 77 ALD 396 . The applicant contended that this approach was contrary to the evidence and contrary to the principles in Lees , which have not been disturbed by the decision in Telstra Corporation Ltd v Hannaford [2006] FCAFC 87 ; (2006) 151 FCR 253 and which have been followed in Australian Postal Corporation v Mowbray & Anor [2003] FCA 1258 ; (2003) 77 ALD 440, Oudyn and Duong v Australian Postal Corporation (2005) 41 AAR 288. The closest one comes to a finding of the kind raised in question 3 is in [25] of the Tribunal's reasons, however, read carefully, what is said there is a long way short of a finding that the applicant's claim for which Comcare accepted liability gave rise to a liability for compensation under s 14 of the SRC Act. Indeed, the Tribunal made no finding, in express terms, that liability for the adjustment disorder had been accepted specifically under the SRC Act. There is, but only arguably, an implication of such a finding in the Tribunal's reference to Oudyn in the context that the finding that the applicant's claim for his current psychological condition is not compensable under s 14 and does not override any continuing liability for the accepted condition of adjustment disorder, but that is as far as it goes. It is not, in my view, sufficient to sustain an error of law on the part of the Tribunal of the kind raised in question 3.


case_outcome: approved

case_text: I have already indicated, I also agree with his submission that the essence of the applicant's appeal on this ground is based on the use of the word 'progressed' in [25] of the Tribunal's reasons. However, he further submits that particular words in a decision-maker's reasons should not be read in isolation. If ambiguity is present, the words should be interpreted 'beneficially' to the decision-maker: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272, approving Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287.


case_text: question is said to be sourced in the ground that having found that the applicant's condition progressed from the earliest accepted 'injury' of 'adjustment disorder with features of anxiety and depression' to a delusional/paranoid disorder condition (at [25] of the Tribunal's reasons), the Tribunal should have found that the applicant's subsequent condition formed part of his compensable injury under the 1971 Act: Comcare Australia (Department of Defence) v Madia (2002) 36 AAR 69. In making its finding that the applicant's condition had progressed, the Tribunal implicitly accepted that the underlying patho-physiological condition, which caused the accepted injury and the subsequent condition, had not changed. On this basis it was not a new injury for which liability under s 14 of the SRC Act had to be established or accepted. My difficulty with this ground is that it seems to be predicated on the proposition that what was said by the Tribunal at [25] of its reasons, in particular its use of the phrase: 'The condition had progressed ...', amounts to a finding that the 'adjustment disorder with features of anxiety and depression led, of itself, to the delusional disorder'. In the face of the evidence referred to at [15] and [16] of the Tribunal's reasons and the Tribunal's actual findings at [29] and [31] [33] of its reasons, I cannot accept that what the Tribunal said at [25] amounts to such a finding. And if there is no such finding, the ground and its inherent question of law do not arise. Dealing first with evidence 1. The psychiatrist who first diagnosed the applicant as suffering from a delusional disorder, Dr Brown, considered it was a constitutional condition. He based the diagnosis on a claim by the applicant that he had been injected in the neck by his supervisor at the Gosford DSS in 1990. 2. On the other hand, the applicant's treating psychiatrist, Dr Greenway, linked the applicant's delusional disorder to his treatment at the Gosford DSS. 3. Dr Lambeth, called on behalf of the applicant, also considered the delusional disorder was contributed to by events at the Gosford DSS. He did not think it was related to the applicant's employment at the ATO. 4. It was also clear from the medical evidence that the diagnosis of a delusional disorder was a quite distinct ailment from that of 'an adjustment disorder with features of anxiety and depression'. The delusional disorder had its own DSM-IV classification and diagnostic criteria.


case_title: Comcare v Hart (2004) 139 AAR 396 Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522

case_text: Tribunal then considered whether the claim made by the applicant for his current psychological condition was compensable under s 14 of the SRC Act. It concluded, by reason of the exclusion in the definition of 'injury' in subs 4(1) of the SRC Act that it 'does not include any such disease, injury or aggravation suffered by an employee as a result of ... failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment' and by reason of the construction of that exclusion by a Full Court of this Court in Hart v Comcare [2005] FCAFC 16 ; (2005) 145 FCR 29, affirming the first instance judgment of Whitlam J in Comcare v Hart (2004) 139 AAR 396, in particular at [11], [21] and [22], that it was not: [33]. At the outset, counsel for Comcare submitted that none of these questions was a question of law; at best, each of the questions involved mixed questions of fact and law and this was not sufficient to support an appeal pursuant to s 44 of the AAT Act. In this regard, counsel for Comcare referred to what was said by Branson J sitting in a Full Court of this Court in Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at [13] [16], with whose reasons Spender J and Nicholson J agreed, namely: '[13] The nature of an appeal under s 44(1) of the AAT Act was considered in Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 by Stone J and me particularly at [10]-[18]. We expressed our approval of the observation made by Gummow J in TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation (Cth) (1988) 19 ATR 1067 at 1069-1070 that an appeal "on a question of law" is narrower than an appeal that merely involves a question of law. As his Honour pointed out, where an appeal lies "on a question of law" the subject matter of the appeal is the question or questions of law. That is, the subject matter of the appeal is the question or questions of law stated as required by O 53, r 3(2)(b). [14] The legislature, by creating a statutory right of appeal to a party to a proceeding before the Tribunal in the narrow terms of s 44(1), disclosed an intention to limit the capacity of the Court on an appeal under s 44(1) to review factual findings of the Tribunal. An appeal pursuant to s 44(1) is thus quite different from an appeal from a judicial body under s 24 of the Federal Court Act. An appeal under s 24 is an appeal by way of rehearing (see, Poulet Frais Pty Ltd v Silver Fox Company Pty Ltd (2005) 220 ALR 211 at [35]-[47]). The subject matter of an appeal under s 44(1) of the AAT Act is (shorn of the requirement to determine what, if any, entitlement to relief flows from the answer to the question or questions of law) of the same character as the subject matter of a reference of a question of law to the Court made under s 45 of the AAT Act. [15] In Birdseye Stone J and I also expressed approval of the observation of Ryan J in Australian Telecommunications Corp v Lambroglou (1990) 12 AAR 515 at 527 that: If the question, properly analysed, is not a question of law no amount of formulary like "erred in law" or "was open as a matter of law" can make it into a question of law. [16] A mixed question of fact and law is not a question of law within the meaning of s 44(1) of the AAT Act. Stone J and I observed in Birdseye (at [18]): In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal.'


case_text: think Comcare's submission on this ground is correct and that it would not be inappropriate to dismiss the application. I have no doubt that questions 2, 3 and 4 are mixed questions of fact and law; my only doubt concerns question 1. Because I can foresee an argument that it is a question of law, rather than undertake a comparative assessment of the arguments for and against the correctness of that proposition, I propose to deal with all the questions on which the appeal is brought on the basis that they are questions of law. But as Gyles J recently said in Condell v Commissioner of Taxation [2007] FCAFC 44 at [20] : '... that does not convert the appeal into a full appeal or permit findings of mixed fact and law to be made. An appeal on a question of law can only succeed if legal error in the AAT decision is demonstrated.'


case_title: Duong v Australian Postal Corporation (2005) 41 AAR 288


case_text: Tribunal then considered whether the claim made by the applicant for his current psychological condition was compensable under s 14 of the SRC Act. It concluded, by reason of the exclusion in the definition of 'injury' in subs 4(1) of the SRC Act that it 'does not include any such disease, injury or aggravation suffered by an employee as a result of ... failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment' and by reason of the construction of that exclusion by a Full Court of this Court in Hart v Comcare [2005] FCAFC 16 ; (2005) 145 FCR 29, affirming the first instance judgment of Whitlam J in Comcare v Hart (2004) 139 AAR 396, in particular at [11], [21] and [22], that it was not: [33].


case_outcome: distinguished

case_title: Lees v Comcare (1999) 56 ALD 84

case_text: first question is said to be sourced in the ground that the Tribunal should have found, on the proper application of s 25 of the AAT Act and ss 61 and 62 of the SRC Act, that its jurisdiction was limited to reviewing a decision made pursuant to ss 16 and 20 of the SRC Act in respect of the cessation, as at 1 December 2004, of compensation payments for an accepted injury of the applicant of 'adjustment disorder with features of anxiety and depression and chronic soft tissue injury': Lees v Comcare (1999) 56 ALD 84 and Australian Postal Corporation v Oudyn (2003) 73 ALD 659. In short, it should have found that it did not have jurisdiction at large to hear and determine whether an injury, other than the accepted injury, was compensable under s 14 of the SRC Act. Where the Tribunal has no jurisdiction under s 25 of the AAT Act to make or review a determination under s 14 of the SRC Act, the parties cannot consent to the Tribunal being vested with such jurisdiction: R v Moodie; Ex parte Mithen (1977) 17 ALR 219 and Rosillo v Telstra Corporation Ltd (2003) 77 ALD 396 . The applicant contended that this approach was contrary to the evidence and contrary to the principles in Lees , which have not been disturbed by the decision in Telstra Corporation Ltd v Hannaford [2006] FCAFC 87 ; (2006) 151 FCR 253 and which have been followed in Australian Postal Corporation v Mowbray & Anor [2003] FCA 1258 ; (2003) 77 ALD 440, Oudyn and Duong v Australian Postal Corporation (2005) 41 AAR 288. Further, according to Comcare, it was unnecessary for this decision to address all of the matters see [35] of Lees that were necessary to give rise to liability under s 14 of the SRC Act. The delegate was satisfied that a relevant matter, namely whether the employee had suffered a work related 'injury', had not been established. This was sufficient, on the reasoning of the delegate, to deny liability for the delusional disorder. The contention in the applicant's submission that 'the first tier decision of the process found that as at 1 December 2004 the anxiety and depression had progressed to a delusional/paranoid disorder' is, according to Comcare, wrong. The decision simply found that as at 1 December 2004, on the medical evidence, benefits were not payable under ss 16 and 20 of the SRC Act for an 'adjustment disorder with features of anxiety and depression'; the decision also rejected liability for a work related delusional disorder. On 1 November 2004 the applicant's solicitors sought review of this decision. The applicant was entitled to do this pursuant to subs 62(2) of the SRC Act. Further, under subs 62(3), the applicant was required to set out reasons for the request. This the letter did. Although, in the main, the letter pressed the anxiety condition as requiring the continuation of benefits, it also argued that Comcare was liable for the applicant's delusional disorder which had been exacerbated by his employment. This question is said to be sourced in the ground that the Tribunal should have found that, on the proper construction of the scheme of the provisions of the SRC Act, as set out in Lees , that a pre-requisite to Comcare making a determination as to whether it had a liability for a delusional/paranoid disorder injury of the applicant was the making of a claim by the applicant, pursuant to s 54 of the SRC Act, for such an injury. The fact that a review decision concerning the applicant's eligibility for compensation payments under ss 16 and 20 of the SRC Act took into consideration the applicant's condition at the date of that decision did not give rise to a decision in respect of liability for a condition for which a claim had been made. There is a certain overlap between this ground and the first ground; both go to the question of whether the Tribunal had jurisdiction to consider and determine whether the applicant's delusional/paranoid disorder was a compensable injury under s 14 of the SRC Act although the first ground was predicated on the premise, implied if not express, that a claim for such an injury had been made. The present ground raises the anterior issue whether a claim for such an injury had been made. At [23] of its reasons, the Tribunal acknowledged that the applicant had not made a formal claim after the commencement of the SRC Act. But the Tribunal went on: '... [the applicant] did respond to an enquiry by Comcare after 1 December 1988 ... In my view Comcare treated Mr Buhr's complaint as if a formal claim had been lodged after commencement of the [SRC] Act ... Accordingly, I consider that the continuing correspondence from Mr Buhr and Comcare's responses and medical investigation of Mr Buhr's claim should be treated as a claim and acceptance of that claim under the [SRC] Act.' Comcare conceded that there is no dispute that Lees at [29] set out what ordinarily will be required of a claim under s 54 of the SRC Act. In particular, that it be in writing and that it should be supported by a medical certificate: s 54(2). However, it observed that Lees did not fully set out the terms of s 54. In particular, it noted that subs 54(5) of the SRC Act also states: 'Strict compliance with the approved form referred to in subsection (2) is not required and substantial compliance is sufficient.' Comcare further submitted that the Tribunal's conclusion at [23] is consistent with s 54 of the SRC Act. That is, notwithstanding the applicant's lack of a formal claim for a delusional disorder, the requirements of the section were, on the facts of this case, substantially complied with by him. Finally, reference was made to the rationale for ss 53 and 54 of the SRC Act, namely, to prevent prejudice to Comcare by late notification of events that could give rise to a claim. Comcare has long been aware of the general nature of the applicant's complaints about his work between 31 August 1989 and 26 November 1990. Neither the applicant nor Comcare adduced evidence that Comcare had been prejudiced by a claim being made in the way it was. I agree that the Tribunal's finding at [23] was open on the evidence and that, notwithstanding the lack of a formal claim for a delusional disorder, the requirements of s 54 were, on the facts of this case, substantially complied with by the applicant. I am therefore of the view that the Tribunal's finding at [23] does not raise a basis for an appeal on a question of law under s 44 of the AAT Act. The difficulty I have with this question is that I cannot identify in the Tribunal's reasons where it found the applicant's claim for compensation of 10 October 1988 for an injury of extreme anxiety and for which the respondent accepted liability on 24 February 1989 gave rise to liability for compensation under s 14 of the SRC Act. I do not read [6] of the Tribunal's reasons, in particular the sentences 'In relation to Mr Buhr's psychological disorder a preliminary question arose. The first question was whether Mr Buhr suffered an injury or disease compensable pursuant to s 14 of the 1988 Act' as being a reference to the applicant's claim for compensation of 10 October 1988 and for which Comcare accepted liability on 24 February 1989. These sentences clearly refer to the delusional or paranoid disorder that had disabled him from continuing to work. In any event, nothing in [6] amounts to a finding of the Tribunal; the paragraph is nothing more than a statement of the issues before the Tribunal, albeit an arguably ambiguous statement.


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


case_text: applicant contended that this approach was contrary to the evidence and contrary to the principles in Lees , which have not been disturbed by the decision in Telstra Corporation Ltd v Hannaford [2006] FCAFC 87 ; (2006) 151 FCR 253 and which have been followed in Australian Postal Corporation v Mowbray & Anor [2003] FCA 1258 ; (2003) 77 ALD 440, Oudyn and Duong v Australian Postal Corporation (2005) 41 AAR 288. Finally, Comcare submitted that, on any view, the Tribunal had before it a reviewable decision that presently refused the applicant compensation under ss 16 and 20 of the SRC Act for the condition of 'adjustment disorder with features of anxiety and depression'. The Tribunal was not simply limited to considering the case within the four corners of a diagnosis that had been accepted previously if it was no longer apt. It was entitled to consider the evidence available to it and assess whether or not liability should be found for another mental condition that had emerged in the ongoing progress of the case: Hannaford , per Heerey J at [10] and [11]. There is no doubt, in my view, that the first tier decision-maker, Ms Failla, in making her determinations of 25 October 2005, relied on and embraced as reasons for her decision, the 'Statement of Reasons' referred to in and accompanying her proposal letter to the applicant of 3 February 2004. That statement contained the following relevant observations and findings: '56. Dr Brown further opined on the balance of probabilities Mr Buhr's Delusional Disorder is not related to his employment with the Commonwealth, but rather the expression of a constitutional predisposition prior to his employment with the Commonwealth and a progression of that psychological constitution's reaction to ongoing situations as he perceived them. The only connection to his Commonwealth employment is that his delusions are focused on this and he would be sensitive to any perception that he was rejected, considered inferior, was under threat or discriminated against. In terms of fitness for employment Dr Brown was of the opinion that Mr Buhr is not psychologically fit for any employment due to his Delusional Disorder. ... 60. In order for compensation to be payable under the SRC Act, it must be established that an employee:- (i) suffered an injury arising out of, or in the course of, that employment: or (ii) suffered an ailment or the aggravation of any such ailment that was contributed to in a material degree by the employment. 61. The weight of the evidence suggests that Mr Buhr is no longer suffering a condition that arose out of or materially contributed by his Commonwealth employment. The condition Mr Buhr now suffers from is as a result of constitutionally acquired paranoid personality disorder, which has manifested into a Delusional Disorder. Both specialist Dr Brown and Dr Greenway are of the opinion that Mr Buhr suffers from a Delusional Disorder that has been brought about by his own perception regarding events associated with his Commonwealth employment. ... 62. With regard to the mental condition I note that a number of allegations made regarding the cause of Mr Buhr's mental condition have been refuted or have been unfounded (refer point 15 & 42) and therefore supports the fact that it is his own perception of the events. Examples of these include conspiracy within the Public Service against him, audited by the tax department as a gesture of victimisation, persecuted by denying him a transfer on medical grounds, refused training. Including (as reported to Dr Brown and Dr Greenway) that he was threatened and that the Assistant Manager placed a needle in his arm and injected a material which would cause him to develop cancer. 63. ... I accept on the basis of the medical doctors and specialist opinion that Mr Buhr may have suffered from this condition, however the "adjustment disorder" that was caused by his Commonwealth employment has now ceased and the condition Mr Buhr now currently suffers from namely "Delusional Disorder" is as a result of a constitutional predisposition. ... 69. Based on the evidence above and the requirements of the SRC Act 1988 I propose to determine that Mr Buhr suffered an "adjustment disorder" and a "strained neck" as a result of his Commonwealth employment. However the conditions suffered have since ceased and the condition Mr Buhr now currently suffers from is a "delusional disorder" which is constitutional rendering him totally unfit for employment.' In my view, a fair reading of the Statement of Reasons, in particular the passages extracted in [33] above, would lead one to conclude that Ms Failla, as the first tier decision-maker, did determine that Comcare had no liability under s 14 of the SRC Act for the applicant's current (at that time) injury of delusional/paranoid disorder because it was '... not related to his employment with the Commonwealth, but rather the expression of a constitutional predisposition prior to his employment by the Commonwealth and a progression of that psychological constitution's reaction to ongoing situations as he perceived them'.


case_outcome: considered

case_text: In his reasons at [19] and following, the Federal Magistrate set out the submissions made on the appellant's behalf concerning why the Tribunal had fallen into jurisdictional error. The same submissions are made in this appeal and will be referred to shortly. The Federal Magistrate identified the principles to be applied when exercising the discretion as follows (at [26] and [27]): "The Court has a discretion to dismiss an application for a constitutional writ in cases where there has been unwarrantable delay. This discretion can be exercised against an applicant without determining whether there has been any jurisdictional error (see R v Australian Broadcasting Tribunal; Ex parte Fowler (1980) 31 ALR 565; Naguit & Anor v Minister for Immigration [2005] FMCA 930 ; S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283). Unwarrantable delay justifies the withholding of relief (see The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389 at 400). A delay of more than a year should ordinarily lead to relief being refused in the exercise of the Court's discretion (see RE Commonwealth of Australia: Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491 per McHugh J at 495-6)." 15 One of the cases cited by his Honour in support of the proposition that he was not required in the circumstances to determine whether there was jurisdictional error was R v Australian Broadcasting Tribunal; ex parte Fowler (1980) 31 ALR 565 (" Fowler "). In that case, the High Court ordered that an application for constitutional writs be dismissed because of the unwarrantable delay in commencing the proceedings. The Court expressly did so (at 570) "whether or not the prosecutors would otherwise have been entitled to relief, a question on which it [was] unnecessary to express any views". The approach of the High Court does not sit entirely comfortably with the reasoning of the Full Court in S58 . However, I doubt that the High Court was intending, by this judgment, to establish a principle that it was unnecessary for a court to consider the strength of the applicant's case when dismissing an application for constitutional writs because of unwarrantable delay. Later High Court authority is clear on the link between delay as a consideration in the exercise of a discretionary power which might preclude a party from litigating a case, and the strength of that party's case: see for example Gallo v Dawson [1990] HCA 30 ; (1990) 93 ALR 479 at 480.


case_outcome: applied

case_text: In his reasons at [19] and following, the Federal Magistrate set out the submissions made on the appellant's behalf concerning why the Tribunal had fallen into jurisdictional error. The same submissions are made in this appeal and will be referred to shortly. The Federal Magistrate identified the principles to be applied when exercising the discretion as follows (at [26] and [27]): "The Court has a discretion to dismiss an application for a constitutional writ in cases where there has been unwarrantable delay. This discretion can be exercised against an applicant without determining whether there has been any jurisdictional error (see R v Australian Broadcasting Tribunal; Ex parte Fowler (1980) 31 ALR 565; Naguit & Anor v Minister for Immigration [2005] FMCA 930 ; S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283). Unwarrantable delay justifies the withholding of relief (see The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389 at 400). A delay of more than a year should ordinarily lead to relief being refused in the exercise of the Court's discretion (see RE Commonwealth of Australia: Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491 per McHugh J at 495-6)." 12 Immediately after these passages, the Federal Magistrate discussed the appellants' delay in bringing the proceedings and various authorities in which delay had been considered as a basis for refusing relief. At no point in his reasons did the Federal Magistrate assess whether the ground sought to be raised by the appellants was arguable. In the passage set out above, his Honour referred to the Full Court judgment of this Court in S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283. In that matter, the Full Court said (at [12] and [13]): "Mr Silva, who appeared as solicitor for the appellant on the hearing of the appeal also contended that the learned primary Judge had erred in exercising the discretion without reaching a final conclusion on the substantive merits of the case for the grant of a protection visa. He referred in support of this argument to these observations of Heerey J in VQAN v Minister for Immigration and Multicultural and Ethnic Affairs [2003] FCA 1541 (19 December 2003); '21 Goldberg J [in M162 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1146] did not proceed on the basis that delay could be the sole consideration in exercising the discretion to refuse relief. His Honour in fact considered the merits of the proposed application at some length: see [24]-[34]. 22 I conclude therefore that it would not be a proper exercise of discretion to completely ignore the applicant's prospects of success. This was not in fact done in the cases relied upon by counsel for the Minister. Moreover, his argument seems to be, practically speaking, inconsistent with the course adopted by the Full Court in Ngu . 23 If, as I therefore hold, the substantive merits must be considered, two approaches are possible. The substantive arguability might be considered as part of a balancing exercise, so that the longer the delay without reasonable explanation, the stronger would need to be the argument on the substantive merits. Alternatively, the court should proceed to reach a final conclusion one way or the other on the substantive merits and, if satisfied that a case of jurisdictional error is made out, then consider whether relief should be refused because of delay or other discretionary factors. This question was not argued. It is not necessary to express a conclusion because in the view I take the same ultimate result would be reached whichever approach were adopted. I would express a tentative preference for the latter, which seems more consistent with the reasoning of Gaudron and Gummow JJ in Aala at [54] et seq.' However, we do not understand Heerey J in that passage to have done more than express a preference for one of two judicial approaches. He clearly did not go so far as to say that it was legally impermissible to reach only a provisional view about the applicant's prospects of success on the substantive merits and then take that provisional view into account in exercising the discretion. Moreover, the learned primary Judge in the present case was precluded from reaching a concluded view on the substantive merits because the circumstances which the appellant claimed constituted the denial of procedural fairness discussed below meant that matters which might have tended in favour of acceptance of the appellant's case were not before the Tribunal or the Court. It is clear that his Honour evaluated separately from the exercise of the discretion to extend time the appellant's claim that the Tribunal denied him procedural fairness." 15 One of the cases cited by his Honour in support of the proposition that he was not required in the circumstances to determine whether there was jurisdictional error was R v Australian Broadcasting Tribunal; ex parte Fowler (1980) 31 ALR 565 (" Fowler "). In that case, the High Court ordered that an application for constitutional writs be dismissed because of the unwarrantable delay in commencing the proceedings. The Court expressly did so (at 570) "whether or not the prosecutors would otherwise have been entitled to relief, a question on which it [was] unnecessary to express any views". The approach of the High Court does not sit entirely comfortably with the reasoning of the Full Court in S58 . However, I doubt that the High Court was intending, by this judgment, to establish a principle that it was unnecessary for a court to consider the strength of the applicant's case when dismissing an application for constitutional writs because of unwarrantable delay. Later High Court authority is clear on the link between delay as a consideration in the exercise of a discretionary power which might preclude a party from litigating a case, and the strength of that party's case: see for example Gallo v Dawson [1990] HCA 30 ; (1990) 93 ALR 479 at 480.


case_text: The Sobey interests did not contend that the material referred to in the affidavit of Mr Lockett was not in admissible form. There was a submission that certain of the material available to Mr Nicol arose from the erroneous disclosure of other privileged material, but there was no evidence from the Sobey interests to support that claim, and it was also accepted that the disclosure of that material was made in circumstances where in practical terms the privilege in that material could not now be maintained: see Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1. In other words, even if that material had been privileged, it had been disclosed and it was too late to do anything about it. 18 Apart from the blanket claim that client legal privilege in the documents in PT.1, PT.2 and PT.4 does not exist because of the 'fraud' exception to the entitlement to have communications treated as subject to legal professional privilege, Mr Nicol contended that there were particular documents in respect of which client legal privilege was not made out because: (a) the documents were not described in a way which supported the claim for privilege and were not otherwise proved to be privileged; (b) the documents comprised communications which were either not confidential, or where privilege had been waived by disclosure to a third party; (c) the documents were not, or were not shown to be, made for the dominant purpose of obtaining legal advice; (d) the documents were invoices for the provision of legal services which did not contain privileged information or were not prepared for the dominant purpose of giving or receiving legal advice. 19 I attach to these reasons a schedule identifying the documents over which privilege has not been claimed or, where privilege was claimed and disputed, in respect of which the Sobey interests adduced no evidence in support of the claim. An example is PT.2.51. It also separately identifies in Part 2 the documents over which privilege is claimed and which Mr Nicol (save for the contention based on the 'fraud' exception) does not dispute. In Part 3 it identifies the documents about which there is a dispute (the disputed documents). I have addressed those documents separately. The fourth part of the schedule reflects my rulings on the disputed documents in the light of my reasons below, and again subject to consideration of 'the fraud exception'. I have in the fifth part of the schedule reflected my rulings on the documents in parts two and four (that is, documents over which I have found privilege to exist subject to consideration of the fraud exception) in the light of my conclusions on the contentions about 'the fraud exception'.


case_text: The parties did not dispute the principles generally applicable to the determination of whether a document is subject to legal professional privilege. At this interlocutory point, the common law governs the determination of whether the disputed documents are the subject of legal professional privilege: Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49 at [23] . 22 Legal professional privilege protects from disclosure any material brought into existence for the dominant purpose of obtaining or providing legal advice or for the dominant purpose of use in existing or reasonably participated legal proceedings: Esso at [38]. The privilege is that of the client, rather than that of the legal practitioner.


case_text: The party asserting the privilege in relation to a particular document or documents has the onus of establishing, by admissible evidence, that the privilege is properly claimed: Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 688-689. In Trade Practices Commission v Sterling (1979) 36 FLR 244 at 245-246 Lockhart J helpfully described classes of documents to which the privilege will attach. It is not the function of the Court to trawl through voluminous material without the party which claims privilege having adduced evidence in support of the claim. In the face of contested evidence, the Court may examine particular documents to assist in deciding whether the privilege is properly claimed. Consequently, where there is no evidence in support of the claim in respect of a particular document, I have treated the document as not privileged. see e.g. per Bleby J in Health & Life Care Ltd v Price Waterhouse (1997) 69 SASR 362 ( HLC ) at 373.


case_title: Trade Practices Commission v Sterling (1979) 36 FLR 244


case_outcome: followed

case_title: Health & Life Care Ltd v Price Waterhouse (1997) 69 SASR 362


case_text: Bills of costs will be privileged if they record the progress of legal advice or its nature, but documents of that nature which do not disclose the nature or content of privileged material are not: Ainsworth v Wilding (No 2) [1900] 2 Ch 315; Allen Allen & Hemsley v Deputy Commissioner of Taxation (New South Wales) (1989) 86 ALR 597; R v Manchester Crown Court; Ex parte Rogers [1999] 4 All ER 35. Similarly, an engagement letter between a solicitor and a client is not privileged except to the extent that it records legal advice or material touching upon legal advice to be given: Cook v Pasminco Ltd (No 2) [2000] FCA 1819 ; (2000) 107 FCR 44 at [45] - [48] .


case_title: Allen Allen & Hemsley v Deputy Commissioner of Taxation (New South Wales) (1989) 86 ALR 597


case_title: R v Manchester Crown Court; Ex parte Rogers [1999] 4 All ER 35


case_text: Consequently, such communications if contrary to public policy are not so protected. A clear example is a communication to further the commission of a crime or fraud: Varawa v Howard Smith & Co Ltd [1910] HCA 11 ; (1910) 10 CLR 382; Attorney-General (Northern Territory) v Kearney [1985] HCA 60 ; (1985) 158 CLR 500 ( Kearney ); Commissioner of Australian Federal Police v Propend Finance Pty Limited [1997] HCA 3 ; (1997) 188 CLR 501 ( Propend ).


case_outcome: discussed

case_text: Consequently, such communications if contrary to public policy are not so protected. A clear example is a communication to further the commission of a crime or fraud: Varawa v Howard Smith & Co Ltd [1910] HCA 11 ; (1910) 10 CLR 382; Attorney-General (Northern Territory) v Kearney [1985] HCA 60 ; (1985) 158 CLR 500 ( Kearney ); Commissioner of Australian Federal Police v Propend Finance Pty Limited [1997] HCA 3 ; (1997) 188 CLR 501 ( Propend ). 28 The exception is not confined to cases where the communication is in furtherance of the commission of a crime or fraud. Kearney provides an example: privilege did not apply to communications between the Northern Territory Government and its legal advisers which were directed to making a regulation which would defeat an Aboriginal land claim. Gibbs CJ at 514 said the exception extended 'to include anything that might be described as a fraud on justice'. See also R v Bell; Ex parte Lees [1980] HCA 26 ; (1980) 146 CLR 141 where the communication as to the client's address was not regarded as confidential because it would be against public interest to so regard it: the communication of the address to the legal adviser was said expressly to be confidential so as to frustrate the efficacy of a custody order. Such a purpose would now result in the disclosure of the address under s 121(2) of the Evidence Act 1995 (Cth).


case_text: Consequently, such communications if contrary to public policy are not so protected. A clear example is a communication to further the commission of a crime or fraud: Varawa v Howard Smith & Co Ltd [1910] HCA 11 ; (1910) 10 CLR 382; Attorney-General (Northern Territory) v Kearney [1985] HCA 60 ; (1985) 158 CLR 500 ( Kearney ); Commissioner of Australian Federal Police v Propend Finance Pty Limited [1997] HCA 3 ; (1997) 188 CLR 501 ( Propend ). 34 The Court, when addressing such issues, does not need to be satisfied on the balance of probabilities of the conduct alleged. In Propend at 514, the test was expressed as being whether there are 'reasonable grounds for believing' that the relevant communication or record was for the illegal or improper purpose. In O'Rourke v Darbishire [1920] AC 581 at 604 it was said that there must be 'something to give colour to the charge. The statement must be made in clear and definite terms, and there must further be some prima facie evidence that it has some foundation in fact.' In Baker v Evans (1987) 77 ALR 565 at 574 the expression 'prima facie case' of illegal or improper conduct was used. 54 In HLC , the Full Court of the Supreme Court of South Australia (Doyle CJ, Lander and Bleby JJ) held that a document recording information provided by a potential witness in litigation was privileged from production on the ground of legal professional privilege. There is no reason to regard 'litigation privilege' in that context differently from privilege arising from communications for the purpose of giving advice: see Propend , and per Doyle CJ in HLC at 364. That privilege was found to exist in HLC even though, at least arguably, the communication between the witness and the solicitor was not privileged. It existed because the document recording the statement was a communication by the solicitor who had taken the statement of the information provided by the witness, and had the necessary purpose (in that case, for use in existing litigation). See also Lander J at 370, and Bleby J at 371.


case_text: The exception is not confined to cases where the communication is in furtherance of the commission of a crime or fraud. Kearney provides an example: privilege did not apply to communications between the Northern Territory Government and its legal advisers which were directed to making a regulation which would defeat an Aboriginal land claim. Gibbs CJ at 514 said the exception extended 'to include anything that might be described as a fraud on justice'. See also R v Bell; Ex parte Lees [1980] HCA 26 ; (1980) 146 CLR 141 where the communication as to the client's address was not regarded as confidential because it would be against public interest to so regard it: the communication of the address to the legal adviser was said expressly to be confidential so as to frustrate the efficacy of a custody order. Such a purpose would now result in the disclosure of the address under s 121(2) of the Evidence Act 1995 (Cth).


case_title: Southern Equities Corporation Ltd (in liq) v Arthur Andersen & Co (1997) 70 SASR 166

case_text: In Southern Equities Corporation Ltd (in liq) v Arthur Andersen (1997) 70 SASR 166 at 174 Doyle CJ said: 'I conclude from this reference to authority that the claim of privilege will fail only if there is material raising an arguable case that the relevant communications were made for the purpose of furthering or assisting a crime or fraud, and that fraud in this context embraces a range of legal wrongs that have deception, deliberate abuse of or misuse of legal powers, or deliberate breach of a legal duty at their heart. It is not enough, I consider, that one could simply say that a transaction constituted sharp practice, or fell below the normal standard of commercial probity. It is not enough, I consider, that one would regard a transaction on which advice was sought as artificial, or as deliberately structured to take advantage of the law on a topic. In light of the authorities, one cannot be more precise than that. It is not necessary to show that the solicitor in question is implicated. What is in issue is the purpose of the client.' 32 Senior counsel for both the Sobey interests and for Mr Nicol said that his Honour's observations reflected the current state of the law. 33 They disagreed firstly as to whether the evidence on this application, in essence the affidavit of Mr Lockett, raised an arguable case that the relevant communications between the Sobey interests and Mr Tanti or other legal advisers from TP and the TP internal records were made for any identifiable purpose. They disagreed secondly upon whether, whatever the purpose for obtaining that legal advice may be, it would engage public policy so that the communications in issue would not be privileged from disclosure. 54 In HLC , the Full Court of the Supreme Court of South Australia (Doyle CJ, Lander and Bleby JJ) held that a document recording information provided by a potential witness in litigation was privileged from production on the ground of legal professional privilege. There is no reason to regard 'litigation privilege' in that context differently from privilege arising from communications for the purpose of giving advice: see Propend , and per Doyle CJ in HLC at 364. That privilege was found to exist in HLC even though, at least arguably, the communication between the witness and the solicitor was not privileged. It existed because the document recording the statement was a communication by the solicitor who had taken the statement of the information provided by the witness, and had the necessary purpose (in that case, for use in existing litigation). See also Lander J at 370, and Bleby J at 371.


case_title: O'Rourke v Darbishire [1920] AC 581

case_text: The Court, when addressing such issues, does not need to be satisfied on the balance of probabilities of the conduct alleged. In Propend at 514, the test was expressed as being whether there are 'reasonable grounds for believing' that the relevant communication or record was for the illegal or improper purpose. In O'Rourke v Darbishire [1920] AC 581 at 604 it was said that there must be 'something to give colour to the charge. The statement must be made in clear and definite terms, and there must further be some prima facie evidence that it has some foundation in fact.' In Baker v Evans (1987) 77 ALR 565 at 574 the expression 'prima facie case' of illegal or improper conduct was used.


case_title: Baker v Evans (1987) 77 ALR 565


case_text: It is of course only communications which were brought into existence in furtherance of the illegal or improper purpose which are removed from the shield of privilege: Re Moage Ltd (in liq); Sheahan v Pitterino (1998) 82 FCR 10 at 19-20. Those which are for the purpose of advice about (for example) the enforceability of security instruments would be protected, even if those concerning the creation of those instruments were not. 37 There are a number of documents where Mr Nicol says their description and the supporting evidence of Mr Lee does not support the claim of privilege or where the description indicates the documents are not privileged. Senior counsel for Mr Nicol submitted that Mr Lee's affidavits did not generally go any distance to supporting the claim for legal professional privilege. His affidavit of 10 March 2006 does not say that he has examined the documents in PT.1 and PT.2, but I infer from its contents that he has done so. He addresses sequentially the documents in issue (or most of them) and expands a little upon their description in the List of Documents. It asserts a purpose for many of the documents; I do not place much weight on that evidence as the affidavit does not indicate that he has made any inquiries beyond himself examining the documents. He has not deposed to any knowledge of the circumstances of the work carried out by TP or to any other matters which might enhance the weight to be given to his assertions. His affidavit of 27 March 2006 concerning the documents in PT.4 is structured the same way, although it expressly states he has inspected the documents and that he sets out 'the basis for our client's claim for privilege'. In effect, his affidavits do little more than provide a description of most of the documents in issue, and make an assertion or submission as to why each should be privileged. 38 I have looked at the documents in PT.1 and PT.4 to ensure I understand as much as possible of Mr Lee's evidence.


case_title: Kennedy v Lyell (1883) 23 Ch D 387

case_text: It does not necessarily follow that a document which records the communication may not be privileged. The recording of the communication may have been made for the dominant purpose of giving legal advice to the Sobey interests. In the cases of a document which records only, and apparently fully, the communication, one view is that the record is not itself privileged because it records no more than non-confidential information: Kennedy v Lyell (1883) 23 Ch D 387 at 405. Where a document selectively records the communication, its terms may reflect a perception of significance of the parts recorded which may therefore have the character of confidentiality: Handley v Baddock [1987] WAR 98. The public interest in protecting the document from disclosure becomes stronger if the record includes commentary of the note taker.


case_title: Handley v Baddock [1987] WAR 98


case_title: DSE (Holdings) Pty Ltd v Intertan Inc (2003)135 FCR 151

case_text: Where the document in issue is itself a communication between TP and another person, if that person is a third party or counterparty in the sense referred to, I regard the document as not privileged as the communication itself is not privileged. If it was between TP and other solicitors also acting for the Sobey interests, I think it is a privileged communication. If it is a communication between TP and the accountant then acting for the Sobey interests in that capacity, so that the communication was part of the process of keeping TP informed so as to give legal advice, such communications are also privileged: DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 1191 ; (2003) 135 FCR 151; Mitsubishi Electric Australia Pty Ltd v Victorian Work Cover Authority [2002] VSCA 59 ; (2002) 4 VR 332. Stone J in Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 ; (2004) 136 FCR 357 at 387 explained the need for evidence to indicate the function of communications with an expert such as an accountant, either by the client or by the expert to the lawyer, to show the dominant purpose of the communication was one which attracted privilege.


case_title: Mitsubishi Electric Australia Pty Ltd v Victorian Work Cover Authority [2002] VSCA 59 ; (2002) 4 VR 332


case_title: Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 ; (2004) 136 FCR 357


case_text: In Gartner v Carter; In the Matter of Gartner Wines Pty Ltd [2004] FCA 258 , Lander J concluded that communications between a client and a legal adviser for the purpose of the client putting assets beyond the reach of the legitimate claims of secured creditors is a 'fraud on justice'. His Honour at [130] said that such a purpose 'is a fraud on the creditor and there is no public interest in protecting that communication'. Lander J followed the decision in Barclays Bank Plc v Eustice [1995] 4 All ER 511. Schiemann LJ (with whom the other members of the Court of Appeal agreed) said at 524 that, because the relevant transactions involving the disposition of assets at undervalue were intended to prejudice the interests of the secured creditor, the '... purpose [was] sufficiently iniquitous for public policy to require that communications between [the client] and his solicitor in relation to the setting up of these transactions be discoverable. If that view be correct, then it matters not whether either the client or the solicitor shared that view. They may well have thought that the transactions would not fall to be set aside ... either because they thought that the transactions were not at an undervalue or because they thought that the court would not find that the purpose of the transactions was to prejudice the bank. But if this is what they thought then there is a strong prima facie case that they were wrong. Public policy does not require the communications of those who misapprehend the law to be privileged in circumstances where no privilege attaches to those who correctly understand the situation.'


case_title: Barclays Bank Plc v Eustice [1995] 4 All ER 511


case_title: Richardson v Mellish (1824) 2 Bing 229

case_text: Burrough J said in Richardson v Mellish (1824) 2 Bing 229 at 252 that public policy 'is a very unruly horse, and when once you get astride it you never know where it will carry you'. Public policy reflects the ideas which from time to time prevail in the community, so it is not a fixed and stable concept. See the discussion by Jordan CJ in Re Jacob Morris (deceased) (1943) 43 SR (NSW) 352 at 355-356. It can inform, and arise, in a wide range of contexts, e.g. how it should 'respond to the practicability of eugenics' (per Spigelman CJ in Harriton v Stephens [2004] NSWCA 93 ; (2004) 59 NSWLR 694 at 702); see also Waller v James [2006] HCA 16 ; Harriton v Stephens [2006] HCA 15. In Cattanach v Melchior [2003] HCA 38 ; (2003) 215 CLR 1 McHugh and Gummow JJ at [58]-[75] discussed a number of decisions and texts concerning the nature and significance of 'public policy' to judicial decision-making. Their Honours' observations provide a salutary caution against too ready an acceptance of current or contemporary perceptions of public policy as a tool in judicial decision-making.


case_title: Re Jacob Morris (deceased) (1943) 43 SR (NSW) 352


case_title: Harriton v Stephens [2004] NSWCA 93 ; (2004) 59 NSWLR 694


case_title: Waller v James [2006] HCA 16


case_title: Harriton v Stephens [2006] HCA 15


case_title: Cattanach v Melchior [2003] HCA 38 ; (2003) 215 CLR 1


case_text: power of the Court to strike out a claim for determination of native title should be exercised cautiously; see McKenzie v South Australia (2005) 214 ALR 214; [2005] FCA 22 at [26], per Finn J and see also Lawson v NSW Minister for Land and Water Conservation [2007] FCA 8 at [22] per Stone J.


case_text: power of the Court to strike out a claim for determination of native title should be exercised cautiously; see McKenzie v South Australia (2005) 214 ALR 214; [2005] FCA 22 at [26], per Finn J and see also Lawson v NSW Minister for Land and Water Conservation [2007] FCA 8 at [22] per Stone J. In Lawson , Stone J dismissed an application for compensation in circumstances where there was no reasonable prospect of evidence being adduced to advance the claim. Justice Kiefel took a similar approach in Beattie on behalf of Western Wakka Wakka Peoples v Queensland [2007] FCA 596 at [23]. Her Honour referred to a lack of response to the orders of the Court and the lack of any purpose served by the continuation of the proceeding.


case_text: Lawson , Stone J dismissed an application for compensation in circumstances where there was no reasonable prospect of evidence being adduced to advance the claim. Justice Kiefel took a similar approach in Beattie on behalf of Western Wakka Wakka Peoples v Queensland [2007] FCA 596 at [23]. Her Honour referred to a lack of response to the orders of the Court and the lack of any purpose served by the continuation of the proceeding.


case_title: Adams v Adams [1971] P 188

case_text: Even in the absence of provisions such as s 18 of the 1977 Act and s 78A of the Judiciary Act , the Attorney-General has what has been described as " a right of intervention in a private suit whenever it may affect the prerogatives of the Crown ": Adams v Adams [1971] P 188 at 197. Sir Jocelyn Simon P there held at 197 8: In my view the Attorney-General has a right of intervention in a private suit whenever it may affect the prerogatives of the Crown, including its relations with foreign states ... and he certainly has in such circumstances a locus standi at the invitation of the court... I think that the Attorney-General also has the right of intervention at the invitation or with the permission of the court where the suit raises any question of public policy on which the executive may have a view which it may desire to bring to the notice of the court.... See also: Auckland Area Health Board v Attorney-General, [1993] 1 NZLR 235; Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391 at 400 2 per Hutley JA (Reynolds and Glass JJA agreeing). Such decisions remain of assistance in providing instances as to those circumstances in which Courts have recognised the right of an Attorney-General to intervene as a party to proceedings.


case_title: Auckland Area Health Board v Attorney-General [1993] 1 NZLR 235


case_title: Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391


case_title: Eastman v Miles [2004] ACTSC 32 ; (2004) 181 FLR 418

case_text: Although the Attorney-General initially sought " leave to intervene ", it is considered that s 18(1) of the 1977 Act confers a right to intervene in proceedings. The right to intervene has been invoked by the Attorney-General upon prior occasions: eg Finch v Goldstein (1981) 55 FLR 257 at 270, 36 ALR 287 at 298. The right conferred by s 78A of the Judiciary Act , it may be noted, is a right frequently exercised by the Attorney-General in Constitutional cases before the High Court of Australia: see Campbell, Intervention in Constitutional Cases (1998) 9 Pub L Rev 255 at 256. Where the Attorney-General seeks to intervene in proceedings in this Court, he is deemed to be a party to the proceeding pursuant to s 18(3): see Eastman v Miles [2004] ACTSC 32 at [92] , [2004] ACTSC 32 ; 181 FLR 418 at 445 6 per Gray J.


case_title: Finch v Goldstein (1981) 55 FLR 257


case_title: R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13

case_text: Even had leave been required, leave would have been granted. The basis upon which the Attorney-General sought to intervene was to avoid the prospect of the First, Second and Third Respondents having to " defend " their own conduct or decisions made: cf R v Australian Broadcasting Tribunal, Ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13; 29 ALR 289.


case_text: The circumstances in which the Attorney-General may exercise the right conferred by s 18(1) to intervene " on behalf of the Commonwealth " are not, however, confined to those in which named respondents may otherwise be placed in the position of having to defend their own decisions or conduct. The ultimate objective of the Administrative Decisions (Judicial Review) Act 1977 (Cth), it will be recalled: ...is to ensure that decisions of public servants and others which affect the rights, prospects and property of citizens, are made after giving careful consideration to the questions involved in the particular case, so that it is more likely that the decision will be right and justice done to the persons affected by it: Toy Centre Agencies Pty Ltd v Spencer (1983) 67 FLR 458 at 466 per Lockhart J. The manner in which the 1977 Act may impact upon the Commonwealth is thus diverse. Equally diverse are the circumstances in which the Attorney-General may seek to intervene to represent the interests of the Commonwealth. It would thus be far from prudent to attempt to define or categorise in advance those interests of the Commonwealth which would permit the Attorney-General to exercise his right of intervention.


case_text: is an application for leave to appeal from my decision given on 26 May 2006: see Churche v Australian Prudential Regulation Authority [2006] FCA 613 ('the May decision'). Leave is necessary because the decision was delivered in respect of an interlocutory application: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The facts are set out in the May decision, and I will not repeat them at length here. In summary, the judgment related to an application to set aside two paragraphs of a notice to produce which had been issued on an application for preliminary discovery. The two paragraphs sought production of draft versions of a report produced by the respondent ('APRA') under s 60 of the Insurance Act 1973 (Cth). I set aside such paragraphs on two grounds: firstly, that the production of the documents was prohibited under s 56 of the Australian Prudential Regulation Authority Act 1998 (Cth) ('APRA Act'); and secondly, that the reports were not properly the subject of a notice to produce in an application for preliminary discovery under O 15A r 6 of the Federal Court Rules .


case_text: principles relating to leave to appeal from an interlocutory judgment were discussed in Decor Corporation Pty Ltd and Anor v Dart Industries Inc (1991) 33 FCR 397 at 398-9. The Court there accepted that the major considerations in determining whether leave should be granted are: 1) whether the decision is attended by sufficient doubt to warrant its being reconsidered; and 2) whether substantial injustice would result if leave were to be refused, supposing the decision to be wrong. However, the Court in Decor added (at 399-400): 'However, there will continue to be cases raising special considerations, and the court should not regard its hands as tied in any case beyond this; that by s 24(1A) the legislature has evinced a policy against the bringing of interlocutory appeals except where the court, acting judicially, finds reason to grant leave. When the court comes to exercise its discretion on a particular application, an important distinction to be observed is that between the common interlocutory decision on a point of practice concerning which the High Court has given (see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39 ; (1981) 148 CLR 170 at 177) a strong warning that "a tight rein" should be kept on appeals and an interlocutory decision determining a substantive right where leave will more readily be granted. ' The applicant submits that the May decision in respect of the operation of s 56(8) of the APRA Act is attended by sufficient doubt to warrant leave being granted. In the May decision, I held that s 56(8) of the APRA Act prevented disclosure of the draft reports to the Court. The applicant says the doubt arises because the issue is essentially a matter of statutory construction, and there is no other authority dealing with the issue. The applicant submits that the question involves resolving a tension between the apparent prohibition under the APRA Act and the rights of an applicant pursuant to the ADJR Act. The respondent submits that there is clearly no doubt that the May decision is correct and that s 56(8) evinces a clear legislative intention to prohibit production of these documents. It submits that the purposes of the Insurance Act would be subverted if the documents were produced. It refers to s 125 of the Insurance Act which acknowledges that s 56 of the APRA Act prohibits certain disclosures of information under the Insurance Act .


case_text: applicant further submits that there is a factual dispute between the parties relating to whether the applicant was subjected to differential treatment. The reports are sought for the purpose of providing evidence to support the applicant's claim. The applicant submits that the Full Federal Court decision in Tyco Australia Pty Ltd v Leighton Contractors Pty Ltd [2005] FCAFC 115 ; (2005) 142 FCR 428 is authority for the proposition that notices to produce may be issued in respect of factual disputes on preliminary discovery applications. In the May decision, I found that there was no relevant factual dispute between the parties. I remain of the opinion that the 'factual dispute' alleged by the applicant is in fact a legal dispute about the effect of facts which are not in dispute, and that the sole purpose of the notice to produce is to elicit further facts on which it can rely and not to resolve any factual disagreement. Nonetheless, I accept that Hill J's judgment in Tyco does not explicitly address the nature and extent of factual disputes which would allow a notice to produce to be issued on an application for preliminary discovery. To my knowledge, there is no other significant authority on this issue and it is a question which is likely to arise in the future. I also accept the respondent's submission that, given the applicant's submission that it has sufficient information to substantiate O 15A r 6(a), it is difficult to see how the applicant could suffer any prejudice if leave to appeal were not granted with respect to the May decision on this point. Further, I consider that the question raised by the applicant on this point is a matter of procedure, for which leave would usually not be granted. If leave were being sought upon this point alone, I would decline to grant leave. However, for the reasons expressed above, I consider it to be appropriate that leave be granted in respect of the s 56(8) point. If leave were granted on that point but not in relation to the notice to produce question, it would make the appeal before the Full Court an academic exercise, because the May decision would be ultimately unaffected regardless of the findings of the Full Court.


case_text: The Tribunal came to the view that the suggested group uses the persecution feared, ie victimisation by guerrillas, to define the group, and that this was not permissible; reference was made to Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 (" Applicant A") per Dawson J at 242, McHugh J at 263-4 and Gummow J at 285-6. 18 At [16] the Magistrate considered the test of determining a particular social group, for the purposes of the Convention, as stated by the High Court in Applicant A which was considered and clarified in Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2004) 206 ALR 242. 27 The appellant seeks to distinguish Applicant A , upon which the Tribunal relied in reaching its decision, on the grounds that there, the harm feared came from the State, and the persecution feared defined the group; this fear being the only characteristic defining the group. 30 Applicant A is authority for the proposition that an applicant for refugee status under Article 1A(2) of the Convention must demonstrate that the form of persecution that he or she fears is not a defining characteristic of the "particular social group" of which the person claims membership; see at 242 per Dawson J, 263 per McHugh J and 285-286 per Gummow J. That is to say, the common characteristic or element that defines the particular social group cannot be a shared fear of persecution. 34 A formulation of the particular social group in the present case as "victims of guerrilla groups" would not satisfy the test stated in Applicant A because the defining characteristic is people who have a shared fear of harm. 36 However, if the failure of State protection is not motivated by a Convention reason and is merely because the group is one that the State cannot protect, that is simply an aspect of the fear of harm. It is true that the fear is more potent. But the group is defined by its common fear of harm. It is therefore not a particular social group within the test stated in Applicant A . 37 Mr Archibald submitted that the harm which was feared was stated more broadly. He pointed in particular to the portions of his statement which I have emphasised in the passage set out at [4] above. He submitted that the words "being for political or other reasons" were referrable to the inability of the State to protect him. If that were so, the failure of protection would be for a Convention reason. 46 The appeal fails because the harm that the appellant fears was aimed at him as an individual and not for a Convention reason. As McHugh J said in Applicant A at 257, such a claim is not within the Convention definition of a refugee, "no matter how terrible its impact on that person happens to be". 47 Here the Tribunal seems to have accepted that the appellant was the victim of extortion threats by guerrillas and that the State is unable to protect against such threats. It may therefore be that this is an appropriate case for the exercise of discretion by the first respondent under s 417 of the Migration Act 1958 (Cth). I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 16 February 2006 Counsel for the Appellant: Mr Archibald Solicitor for the Appellant: Michaela Byers Solicitor Counsel for the Respondent: Mr Kennett Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 8 February 2006 Date of Judgment: 16 February 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/92.html


case_title: Applicant S v Minister for Immigration, Multicultural and Indigenous Affairs [2004] HCA 25 ; (2004) 206 ALR 242

case_text: At [16] the Magistrate considered the test of determining a particular social group, for the purposes of the Convention, as stated by the High Court in Applicant A which was considered and clarified in Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2004) 206 ALR 242.


case_text: It is true that in the present case the Tribunal's finding on relocation was an independent line of reasoning. It rests upon a finding of fact that the appellant would be able to find safety elsewhere in Colombo from those guerrillas who threatened him with death in his home area. Findings of fact are of course not open to review, but if the Tribunal failed to address an integer of the appellant's claim for protection or misunderstood it, those considerations may infect the approach taken to the question of relocation; see Bhupinder Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1014 at [30] ; see also Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1706 at [10] .


case_title: Minister for Immigration, Multicultural and Indigenous Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1

case_text: In relation to the issue of adequate State protection, Nicholls FM referred to the appellant's reliance on Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1 (" Khawar") . The Magistrate distinguished Khawar at [22], observing that:- "In the 'Khawar' case, which was authority for the proposition that even though the applicant was persecuted by private individuals, and in that case it was domestic violence that she feared from her husband and members of her husband's family, if the authorities condone or tolerate such action then it could be said that women who are the objects of such a violence from private individuals in circumstances where this is tolerated or condoned by the authorities, then such women could constitute a particular social group. Mr. Archibald's comment that there is some resonance, in that the harm in that case and in the case before me came from private individuals and not from the government is correct in so far as it goes, but the case before me can be clearly distinguished on the basis that the facts pertaining to Mrs Khawar's case were clearly and plainly before the Tribunal and it was in that context that the High Court said that the Tribunal needed to consider it. Further, there was nothing before the Tribunal in the case before me on the issue of whether the authorities would tolerate or condone any such harm in the way as found to occur in the case of Mrs. Khawar." 22 The Federal Magistrate concluded that none of the grounds pressed by the appellant were made out, and found no jurisdictional error by the Tribunal. 23 The notice of appeal, filed on 3 August 2005, contains three grounds of appeal. The appellant only seeks to rely on the first ground, which is that "...in the circumstances of the [appellant's] case, these being that:- a. the harm which the appellant fears is from non-State agents. b. the evidence before the Tribunal was that the State was unwilling or unable to protect the applicant from harm for a Convention reason. c. the Convention reason relied on by the applicant was that the applicant is a member of a particular social group. d. the particular social group was 'victims of guerrilla groups'. [FM Nicholls erred in failing to find that]... the authority deriving from Applicant A ... is to be distinguished from that deriving from... Khawar... such that the harm which the applicant fears by reason of the failure of State protection is for a Convention reason." 25 The appellant argues that even if the relevant particular social group is 'victims of guerrilla groups' (as found by the Tribunal and Magistrate), the lack of State protection of this group in the circumstances, and following Khawar , constitutes persecutory conduct for a Convention reason. 26 The appellant submits that the Tribunal misstated the persecution which was feared; that whilst the appellant feared harm from the guerrilla group, the persecutory conduct was the inability or unwillingness of the Columbian government to protect 'victims of guerrilla groups' as a group. The appellant observes that this was submitted by the appellant in his statement supporting his application to the Tribunal. 28 The appellant draws analogies with Khawar , arguing that the harm which was inflicted otherwise from non-State agents was tolerated or condoned by State authorities in a discriminatory manner, and that the persecutory conduct derives from a failure by the State to protect the group from harm. 29 The appellant submits both the Tribunal and the Magistrate erred in failing to consider this form of persecution, and incorrectly dealt with the application. The appellant submits that the Federal Magistrate erred in distinguishing Khawar in the way that he did, as the appellant's statement in support of his application to the Tribunal went directly to the State's unwillingness to intervene to protect victims of guerrilla groups. 31 In Khawar , the applicant feared domestic violence from her husband and his family, harm which, in itself, occurred for personal reasons and did not have a Convention nexus. The majority Justices accepted that, if the applicant could establish that the violence was tolerated and condoned by the authorities who selectively enforced the law so as not to provide protection to women, it would then become arguable that she faced persecution as a member of a "particular social group" (ie, women or perhaps married women being in a household which did not include a male blood relation to whom she could look for protection). 32 It follows from the reasons of the majority Justices in Khawar that where an applicant is at a real risk of harm at the hands of a non-State agent who is motivated by non-Convention reasons, but there is a failure of State protection motivated by a Convention reason, the necessary nexus between the persecution and the Convention is established. This is clearly expressed in the judgments of Gleeson CJ at [25] [26], McHugh and Gummow JJ at [84] [85] and [87] and Kirby J at [120] [121]. 35 Mr Archibald, for the appellant, seeks to add a further layer to the claim by expressing the group as victims of guerrillas whom the State could or would not protect. If the motivation of the State for its failure to provide protection is a Convention reason, the case would fall within the principle stated in Khawar.


case_text: In reviewing the appellant's claim, the Tribunal was required to consider a claim that was "squarely" raised on the material before it. The claim must be sufficiently apparent on the material. What is or is not clearly raised is not to be determined by an exercise analogous to parsing and analysing a pleading. Nor is the Tribunal required to be constructive or creative in its approach to the material before it; see NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 ; (2004) 144 FCR 1 at [55] [62]. 38 However, it seems to me that this contention was not "squarely" before the Tribunal within the principles stated in NABE . The statement in the final paragraph of the passage quoted at [4] shows that what was put before the Tribunal was that, in a practical sense, the State was unable to provide protection. It is true that the appellant refers to the lack of resources, and to membership of a social group, but this serves to emphasise that it is the inability of the State to allocate resources to victims of guerrillas that explains the lack of protection. 39 The claim was not put to the Tribunal as one of singling out a group of people to whom protection would be available because of their common characteristics. It was, as submitted by Mr Kennett, counsel for the first respondent, the recognition of reality that the State cannot protect them. 40 Mr Kennett submitted that in any event the Tribunal rejected the claim on an alternative basis, namely that it would have been reasonably open to the appellant to relocate elsewhere in Columbia.


case_text: The Tribunal observed that there was nothing in the evidence to suggest that the appellant feared persecution by reason of his membership of any other "particular social group". The Tribunal did not accept that the persecution which the appellant fears, being "extortion by guerrillas" bears the requisite connection with one of the five Convention reasons. The Tribunal considered the appellant was targeted because he had a lot of money, so was perceived by guerrillas as a "suitable victim", citing Burchett J, with whom O'Loughlin and RD Nicholson JJ agreed, in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 (" Ram ") at 569. 19 He observed at [17] that these authorities clearly establish that persecutory conduct cannot define a particular group, and that the Tribunal found the appellant was targeted because he had a lot of money in cash as a result of his business. His Honour referred to the comment of Burchett J in Ram at 568-569 that if harmful acts are done purely on an individual basis because of what the individual has done or possesses, the Convention does not apply. The Magistrate stated at [18]:- "There is nothing in the material before the Tribunal to suggest to the Tribunal, or that should have suggested to the Tribunal, that the guerrillas' interest in the applicant was specifically because he was one of a group of business persons whose business generated significant quantities of cash... Clearly, as the Tribunal found, it was that this applicant had cash that was the attractor for the guerrillas. There is nothing to show that the attraction was because the applicant was a member of any wider group. It is this individual characteristic that was the basis for the guerrilla's interest in him..." 20 The Magistrate considered the appellant's submission that the Tribunal did not ask the appellant whether there were others in the same category as him, and observed at [19] that on the appellant's account, anyone with money could be a target of extortion, and there was nothing to indicate that it was specific to businesspersons. He stated at [20] that it was not for the Tribunal to "make an applicant's case for him".


case_text: Furthermore, the Tribunal observed that even if it were satisfied that the appellant had a well founded fear of persecution in his local area, it considered he could relocate to somewhere else in Colombia. The Tribunal noted that the appellant had done so in September 1998 and remained in this new location until February 1999, when he left the country. The Tribunal concluded that it would be reasonable in all the circumstances to expect the appellant to relocate elsewhere in Columbia, as there were no language or other practical barriers preventing the appellant from doing so, if he considered he could not continue to live safely in his local area: see Randhawa v Minister for Immigration, Local Government and Ethnic Affai rs (1994) 52 FCR 437 at 440 443. 11 The Tribunal concluded that the appellant did not have a well founded fear of persecution for a Convention reason. 12 The appellant's primary contention before the Federal Magistrate, which bears some relevance to the appeal though the appellant seeks to rely on a new ground on the appeal was that the Tribunal erred in that, having made a finding that the appellant was targeted because he was in possession of cash as a result of his business, it considered the appellant's claim as being based on membership of a social group of "victims of guerrilla groups". The appellant contended that the Tribunal ought to have considered the appellant's membership of another social group, that of "businessmen in cash producing businesses exposing them to increased risk of extortion".


case_title: Singh v Minister for Immigration and Multicultural and Indigenous Affairs (2000) FCA 1706


case_text: Where a decision of the Tribunal rests on two or more independent lines of reasoning, it is necessary for an applicant to demonstrate error in each line of reasoning in order to succeed on an application for review or on appeal; VBAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [25] , [33].


case_text: The argument on appeal was not run before the learned Federal Magistrate. However, the argument had some merit and I would give leave to run it in accordance with the principle stated by a Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] - [48] . 45 The orders of the Court will be that the appeal be dismissed with costs.


case_text: Court notes that Mr Wynne provided his evidence in chief based upon answers he gave to specific questions from Technicon's solicitors that sought his opinion relating to the differences and similarities between the Technicon pan and the registered design. However, it is not of assistance to catalogue the precise differences and similarities, as this is not the test to be applied. Rather, it is 'the overall appearance of the registered design and the alleged infringing article that must be compared' : see Autocaps (Aust) Pty Ltd and Others v Pro-Kit Pty Ltd and Another 46 IPR 339 per Finkelstein J at [83]; see also Tu and Another v Pakway Australia Pty Ltd (t/as Pakway Plastics) and Others (2004) 62 IPR 637 at [106]-[107]. In Autocaps Finkelstein J held at [83]: To determine whether there has been an obvious imitation (when there is not an exact replication) the question is whether, based on the overall impression to be gained from the design and the alleged infringing article, there is substantial similarity between them. On first impressions, the bases of the Technicon pan and the registered design, with the bolt holes located in the same position on each, are identical; the shrouds with rear humps are the same; and the bowls give the same appearance, as do the rims and the throats.


case_text: is no Statement of Novelty in the registered design. However, it has been recognised that certain features of an article may give rise to a distinct character in a design which may be the subject of registration: see D. Sebel & Co. Ltd. v National Art Metal Co. Pty. Ltd. (1965) 10 FLR 224 at 227-228. The principal distinguishing feature relied upon by Caroma is the distinctive curvilinear shape of its registered design. Section 30 of the 1906 Act provides: (1) A person shall be deemed to infringe the monopoly in a registered design if he, without the licence or authority of the owner of the design: (a) applies the design or any fraudulent or obvious imitation of it to any article in respect of which the design is registered; (b) imports into Australia for sale, or for use for the purposes of any trade or business, any article in respect of which the design is registered and to which the design or any fraudulent or obvious imitation of it has been applied outside Australia without the licence or authority of the person who was the owner of the registered design at the time when the design or imitation was so applied; or (c) sells, or offers or keeps for sale, or hires, or offers or keeps for hire, any article: (i) to which the design or any fraudulent or obvious imitation of it has been applied in infringement of the monopoly in the design; or (ii) in respect of which the design is registered and to which the design or any fraudulent or obvious imitation of it has been applied outside Australia without the licence or authority of the person who was the owner of the registered design at the time when the design or imitation was so applied. (2) If any person infringes the monopoly in a registered design, the owner of the design may bring an action or proceeding against him for infringement of the monopoly in the design.


case_text: chose not to specify any particular features of the representation in respect of which it claimed a monopoly nor did it designate any particular features of the representations which are to be disregarded in considering the extent of the monopoly protection. In Wanem Pty Ltd v John Tekiela and Another [1990] FCA 372 ; (1990) 19 IPR 435 Gummow J, after being referred to Dalgety Australia Operations Ltd v Seeley (FF) Nominees Pty Ltd (1986) 64 ALR 421 and Turbo Tek Enterprises Inc and Another v Sperling Enterprises Pty Ltd and Another (1989) 88 ALR 524 , said at 439-440: The authorities are collected there for the proposition that where the statement of monopoly does not identify particular features of shape or configuration of the design, the design applies to the appearance of the article as a whole and issues of infringement are to be approached with that in mind. See also Fisher & Paykel Healthcare Pty Ltd v Avion Engineering Pty Ltd [1991] FCA 434 ; (1991) 103 ALR 239 at 246-247; McCallum & Co Pty Ltd v Allen Manufacturing Co Pty Ltd and Another (2001) 52 IPR 550 at [17]-[18]. Accordingly, no aspect of the shape or configuration of the registered design is to be disregarded.