case_text: submission of Santos, Delhi Petroleum and the State that the application has no reasonable prospects of success is, in summary: (a) the Applicants do not seek a determination of native title in the present proceeding; (b) the definition of "future act" in s 233(1) of the NTA is that it is an act which, apart from the NTA, either validly affects (in the sense that word is to be understood in light of in s 227 of the NTA) native title in relation to the land or would, if valid, affect native title; (c) in light of Full Court's judgment in The Lardil Peoples v Queensland [2001] FCA 414 ; (2001) 108 FCR 453 ( Lardil ), to secure final relief of the kind sought by the Applicants it is not sufficient to establish only that an act might affect native title if native title were found to exist; (d) a corollary of this is that mere status as a registered native title claimant can never supply the requisite element in the definition of future act, which is also an element in any entitlement to the relief sought. The Applicants, in summary, make the following submission in response: (a) Lardil is distinguishable because it related to procedural rights conferred by s 24HA and s 24NA of the NTA and not the right to negotiate under Subdiv P of Div 2 of Pt 3 of that Act; (b) in any event, the declaration that the grant of a petroleum lease would not constitute a pre-existing rights based act does not require the Applicants to establish that they have native title because, if there is no valid ATP, it necessarily follows that there could be no valid grant of a petroleum lease. The latter submission entails some exploration of the ability of this Court to make any pronouncement in relation to the validity of an administrative actions arising only under State law. That is best considered in conjunction with the separate, jurisdictional challenge which Santos and Delhi Petroleum make. Lardil is not distinguishable. To the contrary, that case confirms, in a binding way, what a reading of the definition of "future act" in s 233 of the NTA would in any event suggest. That is, materially, that a future act is one which "affects" native title, not an act which, if native title existed, "might" affect it. To construe the definition in the latter way would, as French J (as the Chief Justice then was) observed in Lardil (at 473, [59]), "require a re-writing of the statutory definition in s 233 which would significantly alter the operation of the act. Such a course is not justified by the language of a statute". Similar sentiments are evident in the judgments of the other members of the Full Court in Lardil see p 476, [70] per Merkel J and p 486, [114] per Dowsett J. The "right to negotiate" claimed by the Applicants forms part (Subdiv P) of Div 3 of Pt 2 of the NTA. Regard to the overview of Div 3 of Pt 2 of the NTA, offered by s 24AA, also exposes the flaw in the Applicants' position. Thus, s 24AA(1) accurately informs the reader that Div 3 "deals mainly with future acts, which are defined in s 233" and that, " Acts that do not affect native title are not future acts; therefore this Division does not deal with them " (emphasis added). In turn, s 24AA(2) of the NTA offers the accurate general observation that, "to the extent that a future act affects native title, it will be valid if covered by certain provisions of the Division, and invalid if not". These general propositions, evident from the overview of Div 3, are expressly articulated in s 24OA of the NTA, which provides: 24OA Future acts invalid unless otherwise provided. Unless a provision of this Act provides otherwise, a future act is invalid to the extent that it affects native title. This section does not attend with invalidity a future act which might affect native title, were the same to exist. As in Lardil , the relief sought by the Applicants is final relief in a proceeding where no claim for native title is advanced. They rely on their status as the "registered native title claimant". Yet the advancing and successful vindication of a native title claim, not status as the "registered native title claimant", is, given the definition of "future act", just as central to the application of provisions upon which the Applicants rely as it was to those under consideration in Lardil . To seek to distinguish Lardil on the basis that the rights within Div 3 of Pt 2 with which that case was concerned were "procedural rights" ignores this centrality. For the purposes of s 31A of the FCA Act the Respondents have established that the Applicants have no reasonable prospect of securing any of the declaratory and injunctive relief which they seek, insofar as they rely on other than State law for any part of that relief. Jurisdiction & Standing Section 81 of the NTA confers on the Court jurisdiction to hear and determine applications that "relate to native title". Read in isolation and as a matter of first impression and language, the jurisdiction conferred by this section appears to require nothing more or less than a relevant connection between the subject matter of an application and native title. In Lardil though (108 FCR at [156] and [68]), the conclusion was reached, after a consideration of the context in which s 81 appears in the NTA, that the section confers jurisdiction only in respect of applications under Pt 3 of that Act. This is not such an application. Perhaps recognising this, the Applicants did not point to s 81 as a source of jurisdiction to entertain their application. Instead, they adverted to s 213(2) of the NTA, to s 39B(1A)(c) of the Judiciary Act 1903 (Cth) (Judiciary Act) and to s 21 of the FCA Act. Subject to the operation and effect of the other provisions of the NTA, s 213(2) confers jurisdiction on the Court "in relation to matters arising under the Act". For its part, s 39B(1A)(c) of the Judiciary Act confers jurisdiction with respect to "matters arising under any laws made by the Parliament". The reference to s 21 of the FCA Act as a source of jurisdiction is misconceived. That section operates where some other provision has conferred original jurisdiction on the Court and, in such circumstances, empowers the Court to "make binding declarations of right, whether or not any consequential relief is or could be claimed". In other words, s 21 is a source of power, not jurisdiction. Common to each of s 39B(1A)(c) of the Judiciary Act and s 213(2) of the NTA is that the jurisdiction they confer is confined to the "matters" which those sections respectively specify. No point was taken in Lardil as to the absence in that case of a "matter". In the present case the amended statement of claim contains the following allegations: The applicants on behalf of the Wongkumara People are the registered native title claimant within the meaning of s 253 of the Native Title Act 1993 (Cth) (the NTA) in respect of land in south-west Queensland and north-west New South Wales, which land ("the Claimed Land") is more particularly described in attachment B to Native Title Determination Application QUD52 of 2008 (as amended by leave granted by Dowsett J on 12 April 2008). The first respondent and third respondent are recorded in the register kept under s 80A of the Petroleum Act 1923 (Qld) (the Petroleum Act ) as the holder of an Authority to Prospect (ATP) 259P dated 31 January 1979 pursuant to the Petroleum Act in respect of land in south-west Queensland (the ATP Land), which land lies wholly within the boundaries of the Claimed Land. The second respondent is a Government party within the meaning of s 26(1) of the NTA for lands and water within the state of Queensland. 3A. Since the grant of ATP 259P the first and third respondents have prospected and continue to prospect for petroleum on the ATP Land including the Claimed Land. From about late 2005, representatives of the Wongkumara People and of the first respondent on behalf of the itself and the third respondent and other companies being joint venture partners of the first and third respondents have been engaged in negotiations for an indigenous land use agreement ("the proposed ILUA") under the Native Title Act 1993 (Cth) (NTA), which negotiations relate, inter alia, to proposed future acts under the NTA in respect of the Claimed Land covered by the ATP. 4A. The proposed ILUA is to replace an Indigenous Land Use Agreement ("the former ILUA") that was part of an Implementation Agreement dated 16 January 2001 and which was in force for a term of five years. 4B. The former ILUA was never registered under the NTA. In the course of negotiations for the former ILUA and for the proposed ILUA the first respondent on behalf of itself and its joint venture partners has claimed that because ATP 259P predates the NTA and the grant of a petroleum lease under the Petroleum Act is a pre-existing rights based act (PERBA) within the meaning of Subdivision I of Division 3 of Part 2 of the NTA and as such is not subject to the right to negotiate provisions of Subdivision P of Division 3 of Part 2 of the NTA and should not be part of the negotiations for the proposed ILUA. Particulars Clause 9.4 of the former ILUA Letter dated 4 November 2005 from the first respondent to representatives of the Wongkumara People. The applicants have maintained that they are entitled to the right to negotiate under the NTA in respect of the grant of petroleum lease over the Claimed Land covered by the ATP and that the grant of a petroleum lease should be part of the negotiations for the proposed ILUA. Particulars Clause 9.4 of the former ILUA Letter dated 18 June 2008 from Eddy Neumann Lawyers, solicitors for the applicant, to the first respondent. ATP 259P was originally issued on 31 January 1979 for a term of four years commencing n 1 January 1979. From time to time thereafter, the term of ATP 259P has purportedly been varied, extended or renewed. Particulars (a) 22 December 1982: variation by which the term was renewed for four years commencing on 1 January 1983. (b) 18 December 1986: variation by which the term was extended for four years commencing on 1 January 1987. (c) 7 May 1991: renewal by which the ATP was renewed for a term of four years commencing on 1 January 1991. (d) 20 September 1995: renewal by which the ATP was renewed for a term of four years commencing on 1 January 1995. (e) 24 June 1999: renewal by which the ATP was renewed for a term of four years commencing on 1 January 1999. (f) 12 December 2003: variation by which the term of the ATP was extended for four years commencing on 1 January 2003. (g) 3 January 2008: renewal by which the term of the ATP was renewed for a term of four years commencing January 2007. Read with the relief sought by the Applicants, the amended statement of claim offers, in my opinion, a paradigm example of an impermissible attempt to secure an advisory opinion. What is revealed is nothing more than a difference in contractual negotiating positions between the Applicants, who claim in other proceedings, but have not yet been determined to hold, native title in respect of the claimed land and Santos and Delhi Petroleum who may one day seek to obtain from the State a petroleum lease in respect over part of the claimed land on the strength of ATP259P. It is not pleaded that any such lease has been granted or is even imminently to be granted. In effect, what the Applicants seek is advice as to whether, were it to be determined that they hold native title and were a petroleum lease to be sought by and granted to Santos or to Delhi Petroleum by the State, that lease, if otherwise valid, would be an invalid future act if the negotiation requirements found in Subdiv P of Div 3 of Pt 2 of the NTA were not complied with? The hypothetical nature of the application is self evident. To adapt the language employed by Zamir I and Lord Woolf in the passage quoted, the question would only be whether the Applicants, Santos and Delhi Petroleum were generally obliged to act in a certain way? Before anything more meaningful than an answer to that question could be given, the legal and factual issues just mentioned would have to be determined and occur. In Lardil (at 490, [136]), Dowsett J expressly adverted to the question of whether the Applicants in that case had standing to pursue the claim for relief insofar as it sought a declaration of invalidity under State law. His Honour doubted that they had standing. Nonetheless, he went on to consider the State law question, ultimately concluding that the decision sought to be impugned was valid. Of the other judges, French J, in the minority as to this aspect of the case, was of the view that there was no jurisdiction to determine the State law question. Though Merkel J expressed his agreement with the conclusion reached by Dowsett J as to the validity of the decision under State law, his Honour did not, in terms, expressly extend that agreement to the doubt as to standing which had been expressed by Dowsett J. In Lardil , the majority concluded that the Court had jurisdiction to decide the State law question of the validity of an act under that law because deciding that question was an essential step in any determination of whether there was a "future act" under the NTA. Here, the Applicants have commenced an application not materially distinguishable from Lardil which, in light of that case, is doomed to fail with respect to its Federal aspects. The essential connection with the Federal question provides the only jurisdiction which the Court could have to decide the State law question. In those circumstances, if there were jurisdiction to entertain the Federal question, the deciding of the State law question would be a matter of accrued jurisdiction in respect of which s 23 of the FCA Act would operate so as to confer jurisdiction. In light of Lardil and the fact that the present case is not materially distinguishable from that authority, the present case was doomed to fail. The Federal law aspect of the application was therefore, in the sense the term is used in the cases "colourable". That has the consequence that there is no jurisdiction to entertain the State law aspect of the claim, even if the Applicants had standing. Exercise of Discretion In the event that the foregoing conclusions are wrong, I should nonetheless not be disposed to the grant declaratory relief in respect of so much of the claim as remained and relied for its foundation on the State law question of whether it was lawfully possible to grant petroleum leases on the strength of ATP 259P. That would turn on a question as to whether on the particular dates pleaded there was a power of renewal in the Petroleum Act or otherwise under State law. Lardil indicates that jurisdiction would, in these contingent circumstances, exist to determine such a question in the accrued jurisdiction.


case_outcome: applied

case_text: root authority in respect of what constitutes a "matter" for the purposes of a law conferring Federal jurisdiction is Re Judiciary and Navigation Acts [1921] HCA 20 ; (1921) 29 CLR 257. In that case (at 265) the following pronouncement was made in relation to s 76 of the Constitution : It was suggested in argument that "matter" meant no more than legal proceeding, and that Parliament might at its discretion create or invent a legal proceeding in which this Court might be called on to interpret the Constitution by a declaration at large. We do not accept this contention; we do not think that the word "matter" in sec. 76 means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court. If the matter exists, the Legislature may no doubt prescribe the means by which the determination of the Court is to be obtained, and for that purpose may, we think, adopt any existing method of legal procedure or invent a new one. But it cannot authorize this Court to make a declaration of the law divorced from any attempt to administer that law. Put shortly, the giving of an advisory opinion is antithetical to an exercise of Federal jurisdiction. The Applicants do not (and could not) contest that the relevant test reposes in this pronouncement. Rather, they submit that, in terms of the course of authority with respect to that pronouncement, a "matter" does exist. They point to the existence of present negotiations and submit that there is an issue between them and the Respondents, evident from the relief sought, which is and will remain real and not hypothetical unless and until: (a) Santos and Delhi Petroleum disclaim any right to have the State grant to them as a pre-existing rights based act a petroleum lease in respect of the claimed land under the Petroleum Act or indicate that they will not be seeking the grant of such a lease; or (b) The State indicates that it agreed with the Applicants that the grant of such a lease was not a pre-existing rights based act and that it would not grant such a lease to Santos and Delhi Petroleum.


case_outcome: considered

case_text: and Delhi Petroleum contend that there is an absence of any pleading in this case of material facts giving rise to a specific dispute. In that absence, they submit, is to be found a crucial difference between a "matter", albeit one arising in respect of conduct yet to take place, in which declaratory relief may permissibly be sought in the exercise of Federal jurisdiction and the seeking of such relief on a purely hypothetical basis. An example of the presence of such a difference telling against the existence of jurisdiction is, they submit, to be found in Australian Institute of Private Detectives Ltd v Privacy Commissioner [2004] FCA 1440 ; (2004) 139 FCR 394 ( Private Detectives Case ).


case_text: Private Detectives Case is but a particular example of the application of the principles expounded in the joint judgment in Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334 as to the means of differentiating between a permissible invocation of judicial power and the impermissible posing of an academic or hypothetical question. That exposition is of particular importance because of the way in which "matter" has come to be understood for the purposes of Federal jurisdiction. The following propositions emerge from that exposition: (a) The purpose of a judicial determination is the making of a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy (at 355, [44]); (b) In light of that purpose, courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions (at 355-356, [47]); (c) It does not violate this proposition for a declaration to be sought as to whether conduct which has not yet taken place will not be in breach of contract or a law (at 356, [47]); and (d) The crucial difference between the seeking of such a declaration and an advisory opinion is whether what is sought is based on a concrete situation as opposed to being divorced from the facts (at 356, [48]). The last of these propositions was illustrated by the High Court in that case (at 356, [48]) by reference, with evident approval, to the following passage from Zamir I and Lord Woolf, The Declaratory Judgement, (2 nd ed, 1993) at 132: "If ... the dispute is not attached to specific facts, and the question is only whether the plaintiff is generally entitled to act in a certain way, the issue will still be considered theoretical. The main reason for this is that there may be no certainty that such a general declaration will settle the dispute finally. Subsequent to that declaration a person (the defendant himself or someone else) may be adversely affected by a particular act of the plaintiff. It may then be doubtful whether this act is covered by the declaration. In such a case the affected person will probably be entitled to raise the issue again on its special facts. Indeed, such a declaration will in effect be a mere advisory opinion." [Emphasis in original] In the Private Detectives Case (at 401-402, [29]-[32]) Sackville J analysed the nature and effect of the pleaded case in the following way: In the present case, a reading of the Statement of Claim makes it plain that the Institute seeks the declarations it claims independently of any specific factual allegations. The pleading does not allege that the Institute or its members have sought specific information from an identified organisation for a particular purpose. Nor is it alleged that the organisation denied the request by reason of a particular provision of the Privacy Act or determination of the Commissioner. As I have noted, the Institute seeks no relief in respect of any refusal by the Commissioner to make a determination under s 72 of the Privacy Act. The Statement of Claim merely alleges that the Institute 'through its members' undertakes investigations on behalf of clients in connection with 'litigation, potential litigation and matters related to litigation' and that the investigations involve obtaining personal information from organisations which record the information for their own business purposes (pars 4, 6). It is then said that the Privacy Act proscribes the disclosure by organisations of personal information to the Institute and its members unless the disclosure is 'required or authorised by or under law'. The Statement of Claim does not identify the circumstances in which particular investigations have taken place, the organisations requested for information or the particular use to which the information was intended to be put. The difficulty is not that declarations sought by the Institute go merely to future events or circumstances. The difficulty is that they cannot quell any existing controversy between the Institute and the Commissioner. The first declaration, before it can be meaningful, requires a number of factual and legal issues to be determined. It must be established that the disclosing entity is an 'organisation' within the meaning of the Privacy Act and that the organisation is subject to the National Privacy Principles. The disclosure must be of 'personal information', as defined in the Privacy Act . It also must be for the purpose of enabling the Institute or a member to investigate on behalf of citizens in corporations 'matters concerning litigation, or potential litigation' (whose purpose is not made clear). The second declaration creates the same difficulties. The conclusion which his Honour reached as a result of that analysis (at 402, [32]) was that, "in effect, the Institute seeks an advisory opinion from the Court without reference to any concrete facts". That conclusion was fatal for the Applicant Institute in that case. Applying the propositions evident in Bass v Permanent Trustee Co Ltd , Sackville J held that the proceeding did not involve a "matter" and hence that the Court lacked jurisdiction under s 39B(1A)(c) of the Judiciary Act to entertain the Institute's claim for declaratory relief.


case_outcome: distinguished

case_text: unlike in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 , the Applicants do not have the benefit of any provision affording them any particular standing to seek any of the relief claimed in the application. While the position would be different if they had the benefit of a native title determination in their favour or even if the relief were sought in the context of an application for a determination of native title, the Applicants are strangers to any dealings between the State and Santos and Delhi Petroleum with respect to the granting of a particular petroleum lease. Their mere status as a registered native title claimant does not, in my opinion, give them standing to claim any of the relief sought, including any part which relies only on State law.


case_outcome: cited

case_text: the mere assertion of a cause of action under the NTA would not sufficient to bring the State law causes of action sought to be raised in the amended statement of claim within the "accrued jurisdiction" of the Court if the NTA claim were "colourable" and "not genuine": Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457 at 498-499; Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219; Fitzroy Motors Pty Ltd v Hyundai Automotive Distributors Australia Pty Ltd (1995) 133 ALR 445 at 450; WG & B Manufacturing Pty Ltd v Tesla Farad Pty Ltd [1999] FCA 1776 ; (1999) 48 IPR 111 at [11] ; Cook v Pasminco Ltd [2000] FCA 677 ; (2000) 99 FCR 548 at 550; and see Lane's Commentary on the Australian Constitution (1997), pp 516-517.


case_title: Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212


case_title: Fitzroy Motors Pty Ltd v Hyundai Automotive Distributors Australia Pty Ltd (1995) 133 ALR 445


case_title: WG & B Manufacturing Pty Ltd v Tesla Farad Pty Ltd [1999] FCA 1776 ; (1999) 48 IPR 111


case_text: the mere assertion of a cause of action under the NTA would not sufficient to bring the State law causes of action sought to be raised in the amended statement of claim within the "accrued jurisdiction" of the Court if the NTA claim were "colourable" and "not genuine": Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457 at 498-499; Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219; Fitzroy Motors Pty Ltd v Hyundai Automotive Distributors Australia Pty Ltd (1995) 133 ALR 445 at 450; WG & B Manufacturing Pty Ltd v Tesla Farad Pty Ltd [1999] FCA 1776 ; (1999) 48 IPR 111 at [11] ; Cook v Pasminco Ltd [2000] FCA 677 ; (2000) 99 FCR 548 at 550; and see Lane's Commentary on the Australian Constitution (1997), pp 516-517. Claims purporting to give the Court jurisdiction are "colourable" and "not genuine" if they are obviously doomed to fail: Cook v Pasminco Ltd [2000] FCA 677 ; (2000) 99 FCR 548 at 550. To invoke the Court's jurisdiction, claims must be "real and not mere pleading allegations" Hopper v Egg and Egg Pulp Marketing Board of Victoria [1939] HCA 24 ; (1939) 61 CLR 665 at 677 (Starke J).


case_text: purporting to give the Court jurisdiction are "colourable" and "not genuine" if they are obviously doomed to fail: Cook v Pasminco Ltd [2000] FCA 677 ; (2000) 99 FCR 548 at 550. To invoke the Court's jurisdiction, claims must be "real and not mere pleading allegations" Hopper v Egg and Egg Pulp Marketing Board of Victoria [1939] HCA 24 ; (1939) 61 CLR 665 at 677 (Starke J).


case_outcome: followed

case_text: is one thing; whether or not it is appropriate to exercise it is another. There is no right to declaratory relief. In Platypus Leasing Inc v Commissioner of Taxation (No 2) (2005) 189 FLR 411 Gzell J of the New South Wales Supreme Court referred (at [81]) to the undesirability of the use of declaratory relief as a "staging post" in litigation. In refusing, as a matter of discretion, to grant declaratory relief in respect of a goods and services tax controversy not yet the subject of an assessment his Honour referred with approval to the following observation made by Young J in McKeown v Cavalier Yachts Pty Ltd (1988) 13 NSWLR 303 at 312: The plaintiff's summons asks for a declaration that the yacht is the property of the plaintiff. I do not believe that such a declaration should be made. Declarations should not be made as a staging post in litigation, and in a case where some executive orders have to be made, it is usually best to proceed to consider those executive orders rather than making declarations. I share the diffidence of Young J and Gzell J in relation to the use of declaratory relief as a "staging post". On behalf of Santos and Delhi Petroleum it was submitted that the declarations sought by the Applicants in paragraphs 1 and 2 of the Amended Application were staging posts to the end of an assertion in the future of a right to negotiate. I agree that this is, in any event, the true way of conceiving the declarations sought. Therefore, even if for that reason alone, I should not be disposed, as a matter of discretion, to grant that relief. Outcome Given the conclusions which I have reached, the appropriate course to take in the circumstances is to dismiss the application. The alternative suggested, striking out of the amended statement of claim, is not appropriate. The only way to address the fundamental jurisdictional difficulty presently attending the application would be to plead a claim for native title. That would be pregnant with a potential for embarrassment derived from different findings given that the Applicants already claim a native title determination in respect of the claim land in other proceedings in the Court. Further, I have in any event concluded that it is not appropriate, as a matter of discretion, to grant the declaratory relief sought. For these reasons, I should not be disposed to allow any such amendment. I shall hear from the parties as to costs, including whether costs should merely follow the event or whether s 85A of the NTA operates so as to require each party to bear their own costs. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 18 December 2009 Counsel for the Applicant: Mr J McCarthy QC with Mr J Kildea Solicitor for the Applicant: Eddy Neumann Lawyers Counsel for the First and Third Respondents: Mr S Lloyd SC with Mr S Cooper Solicitor for the First and Third Respondents: Blake Dawson Counsel for the Second Respondent: Mr P Flannagan SC with Mr G Del Villar Counsel for the Second Respondent: Crown Law Date of Hearing: 23 June 2009 Date of Judgment: 18 December 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1532.html


case_text: is one thing; whether or not it is appropriate to exercise it is another. There is no right to declaratory relief. In Platypus Leasing Inc v Commissioner of Taxation (No 2) (2005) 189 FLR 411 Gzell J of the New South Wales Supreme Court referred (at [81]) to the undesirability of the use of declaratory relief as a "staging post" in litigation. In refusing, as a matter of discretion, to grant declaratory relief in respect of a goods and services tax controversy not yet the subject of an assessment his Honour referred with approval to the following observation made by Young J in McKeown v Cavalier Yachts Pty Ltd (1988) 13 NSWLR 303 at 312: The plaintiff's summons asks for a declaration that the yacht is the property of the plaintiff. I do not believe that such a declaration should be made. Declarations should not be made as a staging post in litigation, and in a case where some executive orders have to be made, it is usually best to proceed to consider those executive orders rather than making declarations.


case_text: this case there is evidence that the respondent has sold or attempted to sell Super Bubble to third parties. 24 Prima facie , it appears that the respondent has infringed the applicant's patent. In my view, there is a serious question to be tried. Irreparable harm In both written and oral submissions, the applicant has asserted: 1. The applicant commercially exploits the patent by producing an insulation product known as 'Glareshield'. According to the affidavit of Mr Nicholas Martinovich, the National Sales Manager for the applicant, filed 28 June 2006, Glareshield is by far the single biggest selling product of the applicant, accounting for approximately 85 per cent of the total insulation product sales of the applicant in Australia. 2. Already two of its shed customers, Action Garages and another entity identified as Coastal Garages, are no longer purchasing Glareshield from the applicant's New South Wales distributor, however these customers continue in business. The applicant believes that at least one of these former customers is purchasing Super Bubble from the respondent. 3. The applicant's New South Wales licensee has suffered losses in excess of $30 000 for the period March to May 2006, which losses are also affecting the business of the applicant. 4. The threat to the loss of sales of Glareshield may result in a diminished ability of the applicant to undertake research and development which would place the ongoing viability of the applicant at risk. From the evidence presented this morning it is likely that damages in this case would be an inadequate remedy should the applicant be successful at trial. Alleged 'poaching' of customers by the respondent, the importance of the Glareshield product to the applicant's business, and goodwill associated with the product indicate that irreparable harm is a possible consequence of continuation of the respondent's activities. I also note the submission of the applicant that the respondent appears to have a paid-up capital of $10, rendering a damages award potentially worthless. Balance of convenience Through the affidavit of Mr Scott Gibson, the managing director of the applicant, filed 28 June 2006, the applicant has offered an undertaking as to damages in the event of success in obtaining interlocutory relief. In view of this undertaking, in addition to the harm the applicant says that it is experiencing from the respondent's conduct and the fact that there is a serious question to be tried, the relief sought by the applicant is appropriate. COSTS The applicant has made a number of submissions to me in relation to costs in this matter. In essence the applicant seeks costs on an indemnity basis, or, alternatively, an order under Federal Court Rules O 62 r 3, that costs be taxed and paid forthwith. Indemnity costs In oral and written submissions Mr Logan for the applicant relied on two points in support of an order for indemnity costs. First, the applicant relied on what it describes as a pattern of deliberate and calculated conduct in cynical and flagrant disregard of the applicant's intellectual property rights which has resulted in the need to appear before me today. Counsel cited Masha Nominees v Mobil Oil Australia Pty Ltd [2006] VSC 56 as authority that pre-litigation conduct may be considered in the context of determining whether the circumstances as a whole warrant the making of an indemnity costs order. Second, citing Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, the applicant states that where an applicant has commenced a proceeding in circumstances where, properly advised, it should have known that there was no chance of success then that is a circumstance which would justify an indemnity costs order. Counsel for the applicant submits that, by analogy to a respondent , such order would be justified where there is no defence asserted, but the respondent continues its conduct so as to put the applicant in a position where it can do nothing other than commence proceedings and incur substantial expense in mounting an interlocutory relief application, where, in effect, properly advised it ought always to have known that there was no answer to the application. Whilst I note the applicant's submissions in relation to indemnity costs I am not persuaded at this stage that this is a case in which there are special or unusual features such as to justify the Court departing from the ordinary practice. Whilst I accept that there is a serious question to be tried and that an interlocutory injunction should be granted I am not of the view that, in the absence of submissions from the respondent, I can be certain that the respondent has no defence and is acting in such a way as having its only purpose ensuring the applicant incurs substantial expense. I note that the respondent currently has different legal representatives to those which were retained when the applicant first commenced raising concerns with the respondent over the patent, and apparently the parties have been engaged in discussions over the past few weeks. I am unaware of how long its current legal representatives have been acting on the respondent's behalf. In these circumstances I am not of the view that an order for costs on an indemnity basis would be just and appropriate. Order 62 rule 3 In oral submissions, Mr Logan pressed that a costs order of some nature ought to be made today and that this is a case where an order allowing the applicant to tax its costs forthwith is warranted. The applicant submits that due to the conduct of the respondent significant additional costs in preparation for the interlocutory hearing have been incurred. Federal Court Rules O 62 r 3 provides: 'An order for costs of an interlocutory proceeding shall not, unless the Court otherwise orders, entitle a party to have a bill of costs taxed until the principal proceedings in which the interlocutory order is made is concluded or further order.' I am not persuaded that this is an appropriate circumstance in which to order that costs be taxed and paid forthwith. I note the observations of Emmett J in Brasington v Overton Investments Pty Ltd [2001] FCA 571 where his Honour considered the rationale for the rule: 'The rationale for such a provision appears to me to be that, since an interlocutory proceeding does not resolve the final issue between the parties, it would, in ordinary circumstances, be inappropriate that an unsuccessful party in an interlocutory proceeding be required to pay costs immediately, as that party might ultimately be entitled to an order for costs in the substantive proceeding. The general principle appears to be that costs ought to be resolved when the proceeding has been concluded, and the rights of the parties have been finally determined.' The rule, of course anticipates that there will be some circumstances where the general principle should be diverted from. As discussed earlier in this judgment I am not persuaded that this is a case where the applicant has incurred significant additional costs by reason of the respondent's conduct in respect of this litigation. While the respondent has failed to appear today and has not entered a notice of appearance I am not persuaded that the applicant would have incurred less costs if the respondent had appeared before me today. While the applicant has incurred considerable costs in this matter in relation to its intellectual property rights the situation is not one of special circumstances such as to divert from the general principles. The future course of this litigation may shed more light on the conduct of the respondent such as to justify special orders as to costs however, in my view, having not had the benefit of submissions from the respondent today, the appropriate order is that the issue of costs be reserved. CONCLUSION It is unfortunate that the respondent has not appeared today. However in view of the evidence presented by the applicant, I am persuaded that it would be appropriate to grant the applicant the interlocutory relief it seeks. In oral submissions, the applicant pressed for permanent relief to be granted by the Court today. However I am not persuaded on the facts that it would be an appropriate order. Notwithstanding the failure of the respondent to appear today, I note that the matter has been treated by all parties and indeed conducted by the applicant in the lead up to the hearing this morning as an application for interlocutory relief. On that basis, it is reasonable to presume that the respondent was expecting to have its day in court when the application for permanent relief was heard. Accordingly, I make orders as follows: 1. Upon the undertaking of the applicant: (a) to submit to such order (if any) as the Court may consider to be just for the payment of compensation, in an amount to be assessed by the Court or as it may direct, to the respondent should it be found that it has been adversely affected by the operation of the interlocutory order set out in par 2 below or any continuation (with or without variation) thereof; and (b) to pay such compensation referred to in par 1(a) above and as directed by the Court; 2. Until the trial of this proceeding, or further order, an interlocutory injunction to restrain the respondent whether by itself, its directors, officers, servants, agents or otherwise howsoever during the term of Australian Innovation Patent No 200310063 ('the patent') or any extension thereof from infringing the patent, including by the importing, making, offering to make, selling, offering for sale, disposing of, offering to dispose of, using, or keeping for the purpose of doing any of those things, the insulation product known as Super Bubble, or authorising the doing of any of those acts. 3. Costs be reserved. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 24 August 2006 Counsel for the Applicant: David M Logan Solicitor for the Applicant: Gilshenan & Luton Counsel for the Respondent: The Respondent did not appear Date of Hearing: 21 August 2006 Date of Judgment: 21 August 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1117.html


case_text: Federal Court has power to grant interlocutory relief pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) and s 122(1) Patents Act 1990 (Cth). The principles relevant to the exercise of that power are: 1. There must be a serious question to be tried or a prima facie such that if the evidence remains the same there is a probability that at a final hearing it will be entitled to relief. 2. The applicant will suffer irreparable harm for which damages will not be an adequate compensation, unless an injunction is granted. 3. The balance of convenience favours the granting of an injunction. ( Hexall Australia Pty Ltd v Roche Therapeutics Inc [2005] FCA 1218 ; Pharmacia Italia SPA v Interpharma Pty Ltd [2005] FCA 1675 , and Castlemaine Tooheys v The State of South Australia [1986] HCA 58 ; (1986) 161 CLR 148 per Mason ACJ at 153.)


case_title: Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225


case_text: I have already noted, the applicant is the registered proprietor of a patent which has been certified and remains in force. In order to establish infringement of the patent, the applicant must show that the respondent has taken each and every one of the essential integers of the relevant claims. This principle was considered by the Full Court in Fresenius Medical Care Australia Pty Ltd v Gambro Pty Ltd (2005) FCAFC 220 at par 49 where their Honours said, referring to the earlier Full Court decision in Populin v HB Nominees Pty Ltd (1982) 59 FLR 37: 'There is no infringement if the patentee has, by the form of the claim, left open what the alleged infringer has done. Their Honours [in Populin] stated, as a fundamental rule, the test for infringement as set out in Rodi & Wienenbirger AG v Henry Showell Ltd [1969] RPC 367 that there will be no infringement unless the alleged infringer has taken all of the essential features or integers of the patentee's claim. This principle was reaffirmed by Gummow J in Nicaro Holdings v Martin Engineering (1990) 91 ALR 513 at 527 (par 49).'


case_title: Hexall Australia Pty Ltd v Roche Therapeutics Inc [2005] FCA 1218


case_title: Masha Nominees v Mobil Oil Australia Pty Ltd [2006] VSC 56


case_title: Pharmacia Italia SPA v Interpharma Pty Ltd [2005] FCA 1675


case_title: Populin v HB Nominees Pty Ltd (1982) 59 FLR 37


case_text: of the administration of justice is one thing; the ability freely to inspect every document on the Court's file is another. So much is evident from the structure of O 46 r 6. Rule 6(2) lists out those types of document which may be inspected as of right with r 6(3) then providing that the ability to inspect other types of document requires a grant of leave. As to the latter, while there may be a general disposition to permit a non-party to have access to such non-confidential affidavits and exhibits as are admitted into evidence: Seven Network Ltd v News Ltd (No 9) [2005] FCA 1394 ; (2005) 148 FCR 1 , at [26], the extent of further access must in each case be considered on its merits. That is so even in relation to material read in open court or referred to by a judge: Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 3) (2002) ATPR 41-873 at [7]. One factor which can be relevant to the withholding of access is the approach adopted by the parties to objections to evidence.


case_text: public administration of justice and the consequent ability for the public freely to observe it and for the media readily to report it is a safeguard against the abuse of the very considerable authority entailed in the exercise of the judicial power of the Commonwealth: R v Davis [1995] FCA 1321 ; (1995) 57 FCR 512 at 514.


case_title: Seven Network Ltd v News Ltd (No 9) [2005] FCA 1394 ; (2005) 148 FCR 1


case_outcome: referred to

case_text: This is an appeal from a judgment of the Federal Magistrates Court (Phipps FM): Moran v Lydiard Financial Services Pty Ltd [2005] FMCA 1821. In hearing and determining the appeal, I am exercising the powers of the Full Court pursuant to a determination by the Chief Justice under s 25(1A) of the Federal Court of Australia Act 1976 (Cth). 2 Phipps FM dismissed the appellant's application to set aside a bankruptcy notice served on him by the respondent. Before the Magistrate, the appellant put forward three bases for the setting aside of the notice. 3 The first basis was that the notice was based on a debt that had been paid. 24 Leaving aside the gratuitous insult in ground (h), the Magistrate was hardly obliged to deal with an issue that was not raised before him. It follows that I also do not need to deal with it. Grounds (b) and (h) must fail. In any case, I agree with what Hayne J said to the appellant about the issue in Moran v Lydiard Financial Services Pty Ltd [2004] HCATrans 562: "These arguments are variants on arguments that have sometimes been put in the Court. They are arguments that always end up proving far too much, Mr Moran, as they are arguments that, if they had any legs which they do not it would demonstrate that there was no ownership of land, there was no Corporations Law, and the arguments of a kind commonly deployed to demonstrate that somebody does not owe taxation. It always proved too much." 25 Ground of appeal (c) relates to the note. It must also fail. 26 The Magistrate said at [5] that: "A promissory note does not constitute payment for costs, It was returned by [solicitors for the respondent] by return mail in which they said it did not constitute legal tender. A promissory note cannot constitute payment in the absence of acceptance of the promissory note or agreement that payment is to be made by promissory note. Neither of those two things exist here. In addition, there is no evidence of an ability to satisfy the promissory note. Finally, it needs to be said, the order for costs made by the Court of Appeal contained no stay, nor did the Master's order fixing the amount of the costs. The promissory note, on its face, is payable at 4pm on 31 January 2025. ..."


case_text: According to the appellant, grounds of appeal (a) and (g) fix on what the Magistrate said at [15] and [16]: "[The appellant] is seeking to satisfy the Court that he has a counter-claim, set-off or cross-demand as those terms are used in s 40(1)(g) of the Bankruptcy Act 1966 (Cth). It is not sufficient for a debtor to assert that he has a claim and then set out the basis for the claim. He must satisfy the Court that he has a genuine demand. The Court must be satisfied it has a reasonable prospect of success. I refer to Bhagat v Global Custodians Ltd [2002] FCA 223 at [52] as one of the authorities for that proposition. The debtor must show that he has a prima face case even if he does not adduce the admissible evidence which would make out a prima facie case (Ebert v Union Trustee Co of Australia Ltd [1960] HCA 50 ; (1960) 104 CLR 346 at 350). The [appellant] does not show that he has a claim to pursue. He has attempted to establish a claim in the Supreme Court of Victoria and the proceeding has been dismissed. He has lodged an appeal against the decision of Mandie J, but that does not establish that his claim has any merit or any prospects of success, whether he has a prima facie case or a reasonable prospect of success." As noted at [6], the appeal against the decision of Mandie J is stayed pending the provision of security for costs. 12 Ground of appeal (a) is misconceived. The Magistrate did not "assume the outcome of [that] appeal". He did what the authorities (ie Bhagat and Ebert ) called upon him to do: namely, make an assessment solely for the purposes of the application before him of the prospects of success of the appeal. In making that assessment, he did not purport to decide the outcome of that appeal: the Court of Appeal is not bound to agree with that assessment if and when it comes to decide the appeal. Further, the Magistrate could only have made that assessment on the basis of "submissions and affidavit material".


case_title: Ebert v Union Trustee Co of Australia Ltd [1960] HCA 50 ; (1960) 104 CLR 346


case_text: As to the first proposition set out at [14], the appellant contends that the Magistrate cannot exercise the jurisdiction of a state court. (Presumably, that contention is made in reliance on Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511.) However, the Magistrate did not purport to do that. All he did was record as part of the task described at [12] what Master Evans had said about the claim. In so doing, he referred to an affidavit of Robert McGirr of solicitors for the respondent which reference is the subject of the second proposition set out at [14]. However, the appellant relied on Mr McGirr's affidavit before the Magistrate having exhibited it to an affidavit of his own. It does not lie in the appellant's mouth to now complain that Mr McGirr's affidavit was used against him even if he only intended to rely on it in some respects and not others. 17 Grounds of appeal (e) and (f) relate to the substance of the claim which the Magistrate described at [8] to [11]. 18 According to the appellant, ground of appeal (e) fixes on what the Magistrate said in the last sentence at [12]: "The only avenue open to [the appellant] was as a lessee, but that would only be if his lease was granted with the approval of the first mortgagee, which it was not." The appellant complains that this amounts to a ruling on a crucial issue in the claim: namely, who was the first mortgagee of a property located at Clarkes Hill that was sold by the respondent.


case_text: The appellant relies on the following passage in PP McQuade and MGR Gronow, McDonald , Henry and Meek: Bankruptcy Law and Practice (5 th edn, 1996) at [40.1.335]: "A creditor who, after he or she has served a bankruptcy notice, takes from the debtor a bill of exchange or promissory note for the debt, cannot, during the currency of the bill or the note, obtain a sequestration order founded on the notice, since, until the bill or note is dishonoured, it must be treated as payment (Ex parte Matthew; Re Matthew (1884) 12 QBD 506) and the position is the same, if, although dishonoured, it is in the hands of a third person to whom it has been endorsed for value by the creditor: Re Debtor [1908] 1 KB 344." That passage does not assist the appellant. It assumes that the creditor has accepted the note. That the author uses the word "take" in that sense is made clear when one reads the two cases to which he refers. In each of those cases, the note had been accepted. For the same reason, each of those cases can be distinguished from the instant case.


case_title: Re Debtor [1908] 1 KB 344


case_title: Aboriginal Legal Service of Western Australia Inc v Lawrence [2007] WAIRC 435

case_text: Those submissions also referred to decisions in the Federal Court and other superior courts. Those cases were concerned with entities such as charities: E v Australian Red Cross Society [1991] FCA 20 ; (1991) 27 FCR 310 ; statutory corporations set up under State legislation which conduct various business activities: United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board (1998) 83 FCR 346 ; corporations that conduct universities: Quickenden v O'Connor [2001] FCA 303 ; (2001) 109 FCR 243 ; and schools: Educang Limited v Queensland Industrial Relations Commission (2006) 154 IR 436; yachting organisations: Forbes & Anor v Australian Yachting Federation Inc. (1996) 131 FLR 241; legal aid bodies: Aboriginal Legal Service of Western Australia Inc. v Lawrence [2007] WAIRC 435 ; and animal welfare organisations: Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals [2002] FCA 860 ; (2002) 120 FCR 191.


case_outcome: discussed

case_title: Actors and Announcers Equity Association v Fontana Films Pty Ltd [1982] HCA 46 ; (1982) 150 CLR 160

case_text: The majority also referred to the judgment of Gibbs CJ in Actors and Announcers Equity Association v Fontana Films Pty Ltd [1982] HCA 23 ; (1982) 150 CLR 169 ( Fontana Films ) . The majority said at [163]: Gibbs CJ pointed out [Fontana Films [1982] HCA 23 ; (1982) 150 CLR 169 at 181; [1982] HCA 23 ; 40 ALR 609 at 615] that, like the aliens power (s 51 (xix)), the corporations power is conferred "by reference to persons". He continued [1982] HCA 23 ; [(1982) 150 CLR 169 at 181-2; [1982] HCA 23 ; 40 ALR 609 at 616]: However, having regard to the federal nature of the Constitution , it is difficult to suppose that the powers conferred by pars (xix) and (xx) were intended to extend to the enactment of a complete code of laws, on all subjects, applicable to the persons named in those paragraphs ... [I]n the case of the corporations described in s 51 (xx), extraordinary consequences would result if the Parliament had power to make any kind of law on any subject affecting such corporations ... Other difficulties in relation to s 51 (xx) are caused by the need to construe the Constitution as a whole, and thus to reconcile par (xx) with other parts of s 51. Although Gibbs CJ concluded [1982] HCA 23 ; [(1982) 150 CLR 169 at 182; [1982] HCA 23 ; 40 ALR 609 at 616] that it was both unnecessary and undesirable to attempt to define the outer limits of s 51(xx) , he did say [1982] HCA 23 ; [(1982) 150 CLR 169 at 182; [1982] HCA 23 ; 40 ALR 609 at 616] that: The words of par (xx) suggest that the nature of the corporation to which the laws relate must be significant as an element in the nature or character of the laws, if they are to be valid ... In other words, in the case of trading and financial corporations, laws which relate to their trading and financial activities will be within the power. As to foreign corporations, he added [1982] HCA 23 ; [(1982) 150 CLR 169 at 183; [1982] HCA 23 ; 40 ALR 609 at 616-17] that "the fact that the corporation is a foreign corporation should be significant in the way in which the law relates to it". 16 The majority noted in [165]: ... the statements made by Gibbs CJ about laws relating to the trading and financial activities of trading and financial corporations being within power are to be understood as responding to the arguments advanced in that case. They are not to be read as attempting an exhaustive statement of the ambit of the power. Gibbs CJ explicitly denied [1982] HCA 23 ; [(1982) 150 CLR 169 at 182; [1982] HCA 23 ; 40 ALR 609 at 616] any intention of doing that. That said, it must be recognised that Gibbs CJ emphasised the importance of giving due weight to the words "foreign", "trading", and "financial" in considering the application of s 51(xx). 25 The majority said, at [55]: The challenge to the validity of the legislation enacted in reliance on the corporations power does not put in issue directly the characteristics of corporations covered by s 51(xx). It does not call directly for an examination of what is a trading or financial corporation formed within the limits of the Commonwealth. (Plainly, a foreign corporation is a corporation formed outside the limits of the Commonwealth.) No party or intervener called in question what was said about trading and financial corporations in R v Federal Court of Australia; Ex parte WA National Football League [1979] HCA 6 ; [(1979) 143 CLR 190 ; 23 ALR 439] , Actors and Announcers Equity Association v Fontana Films Pty Ltd [1982] HCA 23 ; [(1982) 150 CLR 169 ; 40 ALR 609] , State Superannuation Board v Trade Practices Commission [(1982) [1982] HCA 72 ; 150 CLR 282 ; 44 ALR 1] or Fencott v Muller [1983] HCA 12 ; [(1983) 152 CLR 570 ; 46 ALR 41].


case_text: In Bank of New South Wales v Commonwealth [1948] HCA 7 ; (1948) 76 CLR 1 , Dixon J said, at 381: It has been said that "trade" strictly means the buying and selling of goods. That, however, is a specialized meaning of the word. The present primary meaning is much wider, covering as it does the pursuit of a calling or handicraft, and its history emphasizes rather use, regularity and course of conduct, than concern with commodities. 132 Counsel for the Etheridge Shire Council submitted the activities of the council in the following areas, constituted trading: Operation of the Terrestrial Centre. [The Terrestrial Centre is described as "a visiting information centre and tourism facility which displays the Ted Elliott mineral collection". It is operated as a tourist attraction in the shire.] Road works for the Department of Works . [It may be recalled that Section 36 of the LGA provides that local governments in Queensland may enter into contracts and charge for services at facilities it supplies, and s 29 of the Transport Infrastructure Act 1994 provides that the Chief Executive of Main Roads may enter into contracts for the State of Queensland with other persons, including local governments, for the carrying out of road works on a state controlled road.] 133 Mr K. Watson of Counsel, for the Etheridge Shire Council, submitted as his primary submission that, as at 21 October 2006, these activities together with "the receipt of investment income" either alone, or some, or all in combination, were significant or substantial trading and financial activities of the Etheridge Shire Council, and with the consequence that the Etheridge Shire Council was an "employer" pursuant to s 6 of the WRA.


case_title: Commonwealth v State of Tasmania (Tasmanian Dam Case) [1983] HCA 21 ; (1983) 158 CLR 1

case_text: The submissions on behalf of the applicants in QUD 481 of 2006 refer to cases decided by the High Court that have considered the question of whether particular entities are trading or financial corporations: a football club in Adamson's case ; a statutory corporation generating and selling electricity in Commonwealth v State of Tasmania [1983] HCA 21 ; (1983) 158 CLR 1 ( Tasmanian Dams case); a State Corporation conducting financial trading activities in order to finance and operate a superannuation scheme in State Superannuation Board v Trade Practices Commission [1982] HCA 72 ; (1982) 150 CLR 282 ; and a dormant shelf company which had not yet commenced to trade in any capacity in Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570. 72 Toohey J in Hughes summarised the position up until 1986, saying, at 20: The last few years have seen several decisions, particularly by the High Court, in which the notion of a trading corporation has been examined. It is not my intention to refer to those decisions in great detail but rather to state the principles that appear to emerge from them and then to apply those principles to the facts of the present case. 1. The mere fact that a corporation trades does not mean that it is a trading corporation: R v Trade Practices Tribunal; Ex parte St George County Council [1974] HCA 7 ; (1974) 130 CLR 533 at 543, 562 (St George County Council); R v Federal Court of Australia; Ex parte Western Australian National Football League [1979] HCA 6 ; (1979) 143 CLR 190 at 219, 234 (Adamson). 2. The purpose of incorporation, propounded in St George County Council, is no longer a valid test. The test is one of the current activities of the corporation: Adamson; State Superannuation Board v Trade Practices Commission [1982] HCA 72 ; (1982) 150 CLR 282 at 304; (1982) ATPR 40-326 at 43,976-43,977 (State Superannuation Board). 3. But the current activities test is not the sole criterion for determining whether a corporation is a trading corporation. Thus where a corporation has not begun to trade, its character may be found in its constitution. Even when there are current activities, the corporation's constitution is not completely irrelevant: Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 at 602; (1983) ATPR 40-350 at 44,218. 4. Views as to the necessary extent of trading activity have varied. It must be a substantial corporate activity (Barwick CJ in Adamson at 208); the trading activities must form a sufficiently significant proportion of the corporation's overall activities (Mason J in Adamson at 233, with Jacobs J concurring at 237); the trading activities should not be insubstantial (Murphy J in Adamson at 239); the corporation must carry on trading activities on a significant scale: (Mason, Murphy and Deane JJ in State Superannuation Board at 304; 43,976-43,977; Deane J in Commonwealth v Tasmania [1983] HCA 21 ; (1983) 57 ALJR 450 at 559-560. 5. An incorporated sporting body can be a trading corporation if its activities meet the required test: Adamson. 6. In particular, incorporation under a statute such as the Associations Incorporation Act does not prevent a corporate body from being a trading corporation if its activities warrant that description: Adamson at 232. 7. Trading denotes the activity of providing, for reward, goods or services: Re Ku-ring-gai Co-operative Building Society (No 12) Ltd (1978) 36 FLR 134 at 139; St George County Council at 569-570; Bevanere Pty Ltd v Lubidineuse [1985] FCA 134 ; (1985) 7 FCR 325 at 330-331; (1985) ATPR 40-565 at 46,568. 8. The Trade Practices Act itself draws a distinction between trading corporations and financial corporations; nevertheless the two classes are not mutually exclusive: State Superannuation Board at 303.


case_text: Those submissions also referred to decisions in the Federal Court and other superior courts. Those cases were concerned with entities such as charities: E v Australian Red Cross Society [1991] FCA 20 ; (1991) 27 FCR 310 ; statutory corporations set up under State legislation which conduct various business activities: United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board (1998) 83 FCR 346 ; corporations that conduct universities: Quickenden v O'Connor [2001] FCA 303 ; (2001) 109 FCR 243 ; and schools: Educang Limited v Queensland Industrial Relations Commission (2006) 154 IR 436; yachting organisations: Forbes & Anor v Australian Yachting Federation Inc. (1996) 131 FLR 241; legal aid bodies: Aboriginal Legal Service of Western Australia Inc. v Lawrence [2007] WAIRC 435 ; and animal welfare organisations: Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals [2002] FCA 860 ; (2002) 120 FCR 191. 140 The written submissions on behalf of the Etheridge Shire Council ask the question " How is the significance or substantiality of the trading activities to be assessed?" (a) It is undoubtedly a fact of fact and degree (Adamson at 234); (b) A measurement of what is received from the alleged trading activities against total receipts as an indication of substantiality and significance has been accepted and adopted in a number of cases including:- (i) E v Red Cross [1991] FCA 20 ; (1991) 27 FCR 310 at 345; (ii) United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board (1998) 83 FCR 346 at 351; (iii) Orion Pet Products v RSPCA [2002] FCA 860 ; (2002) 120 FCR 191 at 219; (iv) Quickenden v O'Connor [2001] FCA 303 ; (2001) 109 FCR 243 at 272 and 273.


case_title: Educang Limited v Queensland Industrial Relations Commission (2006) 154 IR 436


case_text: The majority said, at [55]: The challenge to the validity of the legislation enacted in reliance on the corporations power does not put in issue directly the characteristics of corporations covered by s 51(xx). It does not call directly for an examination of what is a trading or financial corporation formed within the limits of the Commonwealth. (Plainly, a foreign corporation is a corporation formed outside the limits of the Commonwealth.) No party or intervener called in question what was said about trading and financial corporations in R v Federal Court of Australia; Ex parte WA National Football League [1979] HCA 6 ; [(1979) 143 CLR 190 ; 23 ALR 439] , Actors and Announcers Equity Association v Fontana Films Pty Ltd [1982] HCA 23 ; [(1982) 150 CLR 169 ; 40 ALR 609] , State Superannuation Board v Trade Practices Commission [(1982) [1982] HCA 72 ; 150 CLR 282 ; 44 ALR 1] or Fencott v Muller [1983] HCA 12 ; [(1983) 152 CLR 570 ; 46 ALR 41]. 69 The submissions on behalf of the applicants in QUD 481 of 2006 refer to cases decided by the High Court that have considered the question of whether particular entities are trading or financial corporations: a football club in Adamson's case ; a statutory corporation generating and selling electricity in Commonwealth v State of Tasmania [1983] HCA 21 ; (1983) 158 CLR 1 ( Tasmanian Dams case); a State Corporation conducting financial trading activities in order to finance and operate a superannuation scheme in State Superannuation Board v Trade Practices Commission [1982] HCA 72 ; (1982) 150 CLR 282 ; and a dormant shelf company which had not yet commenced to trade in any capacity in Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570. 72 Toohey J in Hughes summarised the position up until 1986, saying, at 20: The last few years have seen several decisions, particularly by the High Court, in which the notion of a trading corporation has been examined. It is not my intention to refer to those decisions in great detail but rather to state the principles that appear to emerge from them and then to apply those principles to the facts of the present case. 1. The mere fact that a corporation trades does not mean that it is a trading corporation: R v Trade Practices Tribunal; Ex parte St George County Council [1974] HCA 7 ; (1974) 130 CLR 533 at 543, 562 (St George County Council); R v Federal Court of Australia; Ex parte Western Australian National Football League [1979] HCA 6 ; (1979) 143 CLR 190 at 219, 234 (Adamson). 2. The purpose of incorporation, propounded in St George County Council, is no longer a valid test. The test is one of the current activities of the corporation: Adamson; State Superannuation Board v Trade Practices Commission [1982] HCA 72 ; (1982) 150 CLR 282 at 304; (1982) ATPR 40-326 at 43,976-43,977 (State Superannuation Board). 3. But the current activities test is not the sole criterion for determining whether a corporation is a trading corporation. Thus where a corporation has not begun to trade, its character may be found in its constitution. Even when there are current activities, the corporation's constitution is not completely irrelevant: Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 at 602; (1983) ATPR 40-350 at 44,218. 4. Views as to the necessary extent of trading activity have varied. It must be a substantial corporate activity (Barwick CJ in Adamson at 208); the trading activities must form a sufficiently significant proportion of the corporation's overall activities (Mason J in Adamson at 233, with Jacobs J concurring at 237); the trading activities should not be insubstantial (Murphy J in Adamson at 239); the corporation must carry on trading activities on a significant scale: (Mason, Murphy and Deane JJ in State Superannuation Board at 304; 43,976-43,977; Deane J in Commonwealth v Tasmania [1983] HCA 21 ; (1983) 57 ALJR 450 at 559-560. 5. An incorporated sporting body can be a trading corporation if its activities meet the required test: Adamson. 6. In particular, incorporation under a statute such as the Associations Incorporation Act does not prevent a corporate body from being a trading corporation if its activities warrant that description: Adamson at 232. 7. Trading denotes the activity of providing, for reward, goods or services: Re Ku-ring-gai Co-operative Building Society (No 12) Ltd (1978) 36 FLR 134 at 139; St George County Council at 569-570; Bevanere Pty Ltd v Lubidineuse [1985] FCA 134 ; (1985) 7 FCR 325 at 330-331; (1985) ATPR 40-565 at 46,568. 8. The Trade Practices Act itself draws a distinction between trading corporations and financial corporations; nevertheless the two classes are not mutually exclusive: State Superannuation Board at 303.


case_title: Forbes & Anor v Australian Yachting Federation Inc (1996) 131 FLR 241


case_title: Huddart Parker & Co Pty Ltd v Moorehead [1909] HCA 36 ; (1908) 8 CLR 330

case_text: Later, at 552-553, Menzies J said: The difference between a trading corporation and a municipal corporation was noticed in this Court as early as 1908 in Huddart Parker & Co. Pty. Ltd. v. Moorehead when Isaacs J., in considering the language of s. 51(xx.) of the Constitution , said [1909] HCA 36 ; [(1908) 8 C.L.R. 330 , at p.393]: ". . . it is always a preliminary question whether a given company is a trading or financial corporation or a foreign corporation. This leaves entirely outside the range of federal power, as being in themselves objects of the power, all those domestic corporations, for instance, which are constituted for municipal, mining, manufacturing, religious, scholastic, charitable, scientific, and literary purposes, and possibly others more nearly approximating a character of trading; a strong circumstance to show how and to what extent the autonomy of the States was intended to be safe-guarded. The federal power was sufficiently limited by specific enumeration, and there is no need to place further limits on the words of the legislature."


case_text: Reference should also be made to the judgment of Toohey J in Hughes v Western Australian Cricket Association (Inc) (1986) 19 FCR 10 ( Hughes ). 72 Toohey J in Hughes summarised the position up until 1986, saying, at 20: The last few years have seen several decisions, particularly by the High Court, in which the notion of a trading corporation has been examined. It is not my intention to refer to those decisions in great detail but rather to state the principles that appear to emerge from them and then to apply those principles to the facts of the present case. 1. The mere fact that a corporation trades does not mean that it is a trading corporation: R v Trade Practices Tribunal; Ex parte St George County Council [1974] HCA 7 ; (1974) 130 CLR 533 at 543, 562 (St George County Council); R v Federal Court of Australia; Ex parte Western Australian National Football League [1979] HCA 6 ; (1979) 143 CLR 190 at 219, 234 (Adamson). 2. The purpose of incorporation, propounded in St George County Council, is no longer a valid test. The test is one of the current activities of the corporation: Adamson; State Superannuation Board v Trade Practices Commission [1982] HCA 72 ; (1982) 150 CLR 282 at 304; (1982) ATPR 40-326 at 43,976-43,977 (State Superannuation Board). 3. But the current activities test is not the sole criterion for determining whether a corporation is a trading corporation. Thus where a corporation has not begun to trade, its character may be found in its constitution. Even when there are current activities, the corporation's constitution is not completely irrelevant: Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 at 602; (1983) ATPR 40-350 at 44,218. 4. Views as to the necessary extent of trading activity have varied. It must be a substantial corporate activity (Barwick CJ in Adamson at 208); the trading activities must form a sufficiently significant proportion of the corporation's overall activities (Mason J in Adamson at 233, with Jacobs J concurring at 237); the trading activities should not be insubstantial (Murphy J in Adamson at 239); the corporation must carry on trading activities on a significant scale: (Mason, Murphy and Deane JJ in State Superannuation Board at 304; 43,976-43,977; Deane J in Commonwealth v Tasmania [1983] HCA 21 ; (1983) 57 ALJR 450 at 559-560. 5. An incorporated sporting body can be a trading corporation if its activities meet the required test: Adamson. 6. In particular, incorporation under a statute such as the Associations Incorporation Act does not prevent a corporate body from being a trading corporation if its activities warrant that description: Adamson at 232. 7. Trading denotes the activity of providing, for reward, goods or services: Re Ku-ring-gai Co-operative Building Society (No 12) Ltd (1978) 36 FLR 134 at 139; St George County Council at 569-570; Bevanere Pty Ltd v Lubidineuse [1985] FCA 134 ; (1985) 7 FCR 325 at 330-331; (1985) ATPR 40-565 at 46,568. 8. The Trade Practices Act itself draws a distinction between trading corporations and financial corporations; nevertheless the two classes are not mutually exclusive: State Superannuation Board at 303.


case_text: Toohey J in Hughes summarised the position up until 1986, saying, at 20: The last few years have seen several decisions, particularly by the High Court, in which the notion of a trading corporation has been examined. It is not my intention to refer to those decisions in great detail but rather to state the principles that appear to emerge from them and then to apply those principles to the facts of the present case. 1. The mere fact that a corporation trades does not mean that it is a trading corporation: R v Trade Practices Tribunal; Ex parte St George County Council [1974] HCA 7 ; (1974) 130 CLR 533 at 543, 562 (St George County Council); R v Federal Court of Australia; Ex parte Western Australian National Football League [1979] HCA 6 ; (1979) 143 CLR 190 at 219, 234 (Adamson). 2. The purpose of incorporation, propounded in St George County Council, is no longer a valid test. The test is one of the current activities of the corporation: Adamson; State Superannuation Board v Trade Practices Commission [1982] HCA 72 ; (1982) 150 CLR 282 at 304; (1982) ATPR 40-326 at 43,976-43,977 (State Superannuation Board). 3. But the current activities test is not the sole criterion for determining whether a corporation is a trading corporation. Thus where a corporation has not begun to trade, its character may be found in its constitution. Even when there are current activities, the corporation's constitution is not completely irrelevant: Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 at 602; (1983) ATPR 40-350 at 44,218. 4. Views as to the necessary extent of trading activity have varied. It must be a substantial corporate activity (Barwick CJ in Adamson at 208); the trading activities must form a sufficiently significant proportion of the corporation's overall activities (Mason J in Adamson at 233, with Jacobs J concurring at 237); the trading activities should not be insubstantial (Murphy J in Adamson at 239); the corporation must carry on trading activities on a significant scale: (Mason, Murphy and Deane JJ in State Superannuation Board at 304; 43,976-43,977; Deane J in Commonwealth v Tasmania [1983] HCA 21 ; (1983) 57 ALJR 450 at 559-560. 5. An incorporated sporting body can be a trading corporation if its activities meet the required test: Adamson. 6. In particular, incorporation under a statute such as the Associations Incorporation Act does not prevent a corporate body from being a trading corporation if its activities warrant that description: Adamson at 232. 7. Trading denotes the activity of providing, for reward, goods or services: Re Ku-ring-gai Co-operative Building Society (No 12) Ltd (1978) 36 FLR 134 at 139; St George County Council at 569-570; Bevanere Pty Ltd v Lubidineuse [1985] FCA 134 ; (1985) 7 FCR 325 at 330-331; (1985) ATPR 40-565 at 46,568. 8. The Trade Practices Act itself draws a distinction between trading corporations and financial corporations; nevertheless the two classes are not mutually exclusive: State Superannuation Board at 303. 139 The Etheridge Shire Council submitted in its written submissions that a trading corporation: [I]nvolves the buying and selling for the purposes of receiving revenue Adamson at page 235 (Mason J) and is a broad concept. Quickenden v O'Connor [2001] FCA 303 ; (2001) 109 FCR 243 at 261. A corporation may trade even though it enjoys a monopoly. St George County Council's case at 539 or is not motivated by the decision to make a profit. Ku-ring-gai Co-operative Building Society (No. 12) Ltd (1978) 36 FLR 134 at 167.


case_text: Of these powers conferred by the LGA, it is worth noting that in Wingadee Shire Council v Willis [1910] HCA 35 ; (1910) 11 CLR 123 , Barton J, at 136, cited with approval the following passage of the judgment of Field J in the United States Supreme Court case of Meriwether v Garrett [1880] USSC 120 ; 102 US, 472 at 511: Municipal corporations are mere instrumentalities of the State for the more convenient administration of local government. Their powers are such as the legislature may confer, and these may be enlarged, abridged or entirely withdrawn at its pleasure.


case_text: It was alleged in Mid Density Development v Rockdale Municipal Council [1992] FCA 634 ; (1992) 39 FCR 579 that the council concerned was a trading corporation. The Federal Court rejected that claim, at 585, largely by application of the activities test: Davies J at 584. The judgment of Davies J was overturned on appeal to the Full Court of the Federal Court, but on other grounds. The Full Court did not consider the question of whether the Council was a trading corporation: Mid Density Developments v Rockdale Municipal Council [1993] FCA 408 ; (1993) 44 FCR 290 , per the Court, at 302.


case_title: Mid Density Developments v Rockdale Municipal Council [1993] FCA 408 ; (1993) 44 FCR 290


case_title: New South Wales v Commonwealth (Work Choices Case) [2006] HCA 52 ; (2006) 229 CLR 1

case_text: On 14 November 2006, the High Court delivered judgment in New South Wales v Commonwealth (2006) 229 CLR 1 ; [2006] HCA 52 ( Work Choices Case ) concerning the validity of the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (the Work Choices Act) as enacted in December 2005. The Work Choices Act changed the constitutional basis for the WRA. As a consequence of the Work Choices Act, the WRA is now substantially an exercise of the corporations power under s 51(xx) of the Constitution , rather than an exercise of the conciliation and arbitration power under s 51(xxxv). 5 The WRA, as amended, defines "employee" in s 5(1) as an individual so far as he or she is employed, or usually employed, by an employer as defined in s 6(1). 6 "Employer" is defined in s 6(1) as meaning: (a) a constitutional corporation, so far as it employs, or usually employs, an individual; or (b) the Commonwealth, so far as it employs, or usually employs, an individual; or (c) a Commonwealth authority, so far as it employs, or usually employs, an individual; or (d) a person or entity (which may be an unincorporated club) so far as the person or entity, in connection with constitutional trade or commerce, employs, or usually employs, an individual as: (i) a flight crew officer; or (ii) a maritime worker; or (iii) a waterside workers; or (e) a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or (f) a person or entity (which may be an unincorporated club) that carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person or entity employs, or usually employs, an individual in connection with the activity carried on in the Territory. 9 The High Court in the Work Choices Case , by a majority of five to two, held that the Work Choices Act was valid. The majority concluded that the understanding of the power conferred by s 51(xx) as explained by Mason CJ, Deane and Gaudron JJ in Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 ; 128 ALR 81 ; [1995] HCA 16 ( Re Dingjan) and amplified by Gaudron J in Re Pacific Coal Pty Ltd; Ex parte Construction, Forestry, Mining and Energy Union (2000) 203 CLR 346 ; 172 ALR 257 ; [2000] HCA 34 ( Pacific Coal ) should be adopted. 17 The majority in the Work Choices Case , in seeking to determine the ambit of laws which apply to constitutional corporations, referred to the dissenting members of the Court in Re Dingjan [1995] HCA 16 ; (1995) 183 CLR 323. The majority said, at [177]: ... Particular reference need now be made only to the reasons of Gaudron J (with which Deane J agreed). Her Honour's reasoning proceeded by the following steps. [1995] HCA 16 ; [(1995) 183 CLR 323 at 365; [1995] HCA 16 ; 128 ALR 81 at 111]. First, the business activities of corporations formed within Australia signify whether they are trading or financial corporations, and the main purpose of the power to legislate with respect to foreign corporations must be directed to their business activities in Australia. Second, it follows that the power conferred by s 51(xx) extends "at the very least" [1995] HCA 16 ; [(1995) 183 CLR 323 at 365; [1995] HCA 16 ; 128 ALR 81 at 111] to the business functions and activities of constitutional corporations and to their business relationships. Third, once the second step is accepted, it follows that the power "also extends to the persons by and through whom they carry out those functions and activities and with whom they enter into those relationships". [1995] HCA 16 ; [(1995) 183 CLR 323 at 365; [1995] HCA 16 ; 128 ALR 81 at 111]. 21 If it is, the acceptance by the majority in the Work Choices Case of the ambit of the power of the Commonwealth under s 51(xx) as described by Gaudron J in Pacific Coal , would mean that the Commonwealth has power to regulate the activities, functions, relationships and the business of the Etheridge Shire Council; the creation of rights and privileges belonging to the Etheridge Shire Council; the imposition of obligations on it; and, in respect of those matters, the regulation of the conduct of those through whom it acts, its employees, and also the regulation of those whose conduct is or is capable of affecting its activities, functions, relationships or business. 23 The constitutional framework erected by the Constitution referred to in the majority judgment in the Work Choices Case set out at para [12] above, including the observation from the Melbourne Corporation case, emphatically denies that possibility. 24 In the Work Choices Case , the majority of the High Court noted, at [9]: The term "constitutional corporation" is defined in s 4 to mean a corporation to which s 51(xx) of the Constitution applies. That paragraph refers to foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth. No doubt there may be room for dispute, in relation to some corporations, about whether they are constitutional corporations within the meaning of the new Act. However, in the application of para (a) of the basic definition of employer, and the corresponding definition of employee, to a given corporation, the hypothesis is that it is a constitutional corporation. 28 Subsequent to the judgment of the High Court in the Work Choices Case , the Australian Workers Union of Employees, Queensland (the applicant), filed an application in this Court on 6 December 2006. Subsequently, an amended application, which included the Queensland Services, Industrial Union of Employees as the second applicant, was filed on 22 December 2006. That application sought "declaratory orders pursuant to s 21 of The Federal Court of Australia Act 1976 (Cth)" declaring: ... the respective rights of the parties regarding a purported Workplace Agreement lodged by the First Respondent with the Second Respondent, purportedly in reliance upon sections 342 , 344 and 345 of the Workplace Relations Act 1996 on the 21st October 2006, and described as "Etheridge Shire Council Australia (Employee Collective) Workplace Agreement 2006" (hereinafter called "the Etheridge Agreement"). 29 The applicants sought that: It be declared: (i) that the First Respondent is not an "employer" within the meaning of section 6 of the Workplace Relations Act ; (ii) that the First Respondent was not lawfully entitled to lodge the Etheridge Agreement with the Second Respondent on 21 st October 2006, or at any time thereafter, under Part 8 of the Workplace Relations Act 1996 ; (iii) that the Etheridge Agreement did not come into operation as a workplace agreement in accordance with section 347(1) of the Workplace Relations Act 1996 on 21 st October 2006, nor any time thereafter. (iv) that the Etheridge Agreement has no force and effect as a workplace agreement under the Workplace Relations Act 1996 ; 30 On 5 February 2007, in proceedings QUD 39 of 2007, the State of Queensland sought similar declarations. 78 The observations of the High Court in the Work Choices Case , at [157] and [158] set out in [13]-[14] above, contrasts the view of the majority in St George City Council that the question of characterisation is to be determined by the purpose for which the corporation is formed, with the dissenting view of Barwick CJ that the "activities test" determines the character of a corporation, and that "a corporation whose predominant and characteristic activity is trading whether in goods or services" was a trading corporation. 79 The comment by the majority in the Work Choices Case that the view of Barwick CJ "did not then command the assent of the majority of the Court" is to be understood as indicating that the "activities test" propounded by Barwick CJ was later accepted by the High Court in Adamson as the applicable test, and is the proper test to apply. 80 Mason J, in Adamson, said of a "trading corporation": Essentially, it is a description or label given to a corporation when its trading activities form a sufficiently significant proportion of its overall activities as to merit its description as a trading corporation.


case_title: Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals [2002] FCA 860 ; (2002) 120 FCR 191


case_text: Those submissions also referred to decisions in the Federal Court and other superior courts. Those cases were concerned with entities such as charities: E v Australian Red Cross Society [1991] FCA 20 ; (1991) 27 FCR 310 ; statutory corporations set up under State legislation which conduct various business activities: United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board (1998) 83 FCR 346 ; corporations that conduct universities: Quickenden v O'Connor [2001] FCA 303 ; (2001) 109 FCR 243 ; and schools: Educang Limited v Queensland Industrial Relations Commission (2006) 154 IR 436; yachting organisations: Forbes & Anor v Australian Yachting Federation Inc. (1996) 131 FLR 241; legal aid bodies: Aboriginal Legal Service of Western Australia Inc. v Lawrence [2007] WAIRC 435 ; and animal welfare organisations: Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals [2002] FCA 860 ; (2002) 120 FCR 191. 139 The Etheridge Shire Council submitted in its written submissions that a trading corporation: [I]nvolves the buying and selling for the purposes of receiving revenue Adamson at page 235 (Mason J) and is a broad concept. Quickenden v O'Connor [2001] FCA 303 ; (2001) 109 FCR 243 at 261. A corporation may trade even though it enjoys a monopoly. St George County Council's case at 539 or is not motivated by the decision to make a profit. Ku-ring-gai Co-operative Building Society (No. 12) Ltd (1978) 36 FLR 134 at 167. 140 The written submissions on behalf of the Etheridge Shire Council ask the question " How is the significance or substantiality of the trading activities to be assessed?" (a) It is undoubtedly a fact of fact and degree (Adamson at 234); (b) A measurement of what is received from the alleged trading activities against total receipts as an indication of substantiality and significance has been accepted and adopted in a number of cases including:- (i) E v Red Cross [1991] FCA 20 ; (1991) 27 FCR 310 at 345; (ii) United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board (1998) 83 FCR 346 at 351; (iii) Orion Pet Products v RSPCA [2002] FCA 860 ; (2002) 120 FCR 191 at 219; (iv) Quickenden v O'Connor [2001] FCA 303 ; (2001) 109 FCR 243 at 272 and 273.