case_text: I should mention, however, that in this case the hypothesis relied upon is not itself limited to the time and duration of exposure to benzene, to which I will refer as the temporal issues. Whilst I have come to the view that there is sufficient evidence to support the findings of the Tribunal even on the basis of the temporal issues, the necessity for such evidence is not to be assumed. As was said in East v Repatriation Commission (1987) 16 FCR 517 at 533: The necessity for quantitative evidence in a particular case must depend upon the nature of the hypothesis being expounded. For example, if a Tribunal accepts medical evidence that condition B may be caused by any degree of exposure to factor A, that the veteran was exposed to factor A and that he or she subsequently developed condition B, it would be wrong to reject the claim because of an absence of evidence as to the extent of the exposure. The hypothesis itself makes quantity irrelevant. If, on the other hand, the evidence is that exposure to quantity X of factor A may cause condition B, the hypothesis cannot be described as reasonable unless there is reason to believe that the veteran was exposed to factor A to the extent of quantity X. 19 I turn to the evidence before the Tribunal. Two experts were called by the applicant Professor Fox (a haematologist) and Professor Peach (an epidemiologist). I need not rehearse their evidence except to say they both held the view that there was no connection between exposure to benzene and the contraction of myelofibrosis, especially in the circumstances of the temporal issues raised in this case. I accept that their evidence (without more) could have led to the conclusion that the hypothesis considered by the Tribunal would not have been reasonable. The Tribunal similarly regarded that as the likely position. As the Tribunal observed at [91]: On the evidence of Professors Fox and Peach alone, it might be thought that medical and/or scientific opinion would not support the hypothesis, and that there was an absence of support within the medical profession and other scientists for the connection between benzene and myelofibrosis. 20 However, as the Tribunal went on to observe, more information was available and was before the Tribunal. 21 The applicant contended that this further material cannot support the hypothesis, particularly when one considers the temporal issues, and that the Tribunal failed to consider, as s 120(3) of the VE Act requires, whether the whole of the material before it raised a reasonable hypothesis connecting the veteran's death with the circumstances of the particular service rendered by the veteran. Undoubtedly s 120(3) of the VE Act requires the Tribunal to consider that connection. In my view, the Tribunal did undertake that enquiry and it was open for the Tribunal on the whole of the material before it to reach its conclusions. 22 In my view, the applicant underestimated the impact of the other material (in addition to the evidence of Professors Peach and Fox) before the Tribunal and, in particular, the evidence of Dr Collins who was called by the respondent. In fact, if accepted, the evidence of Dr Collins could in itself sufficiently point to the connecting hypothesis, even taking into account the temporal issues. 35 In addition there was the survey material from Sweden referred to in the Tondel article, and the United Kingdom survey referred to (although also discounted) by Professor Peach, and the bundle of documents produced by the respondent which were specifically relied upon by the Tribunal. Even accepting the criticisms of the applicant in respect of the content of the material, it does nevertheless show that the hypothesis (putting aside temporal issues) was not contrary to known scientific facts, nor was so obviously fanciful, impossible, incredible or untenable, or too remote or too tenuous: see Bushell v Repatriation Commission [1992] HCA 47 ; (1992) 175 CLR 408 at 414 and East 16 FCR at 533. 57 I cannot accept that submission. After considering the evidence, particularly of Professors Fox and Peach, the Tribunal stated: 95. As may be seen from the foregoing, a hypothesis may be reasonable despite the fact that it might be unproved, may have little support within the medical profession and may be dependent upon assumption. I cannot find on the material read and heard in these proceedings, that the raised facts are unreliable. Nor can I find that the evidence of Professors Fox and Peach is of such a superior reliability that there is no sufficient ground to determine that death in the present application was war-caused. At the conclusion of the evidence but before the conclusion of the hearing, Mr De Marchi produced a bundle of extracts from internet web sites, without specific attention or submission being directed to any of them. An analysis of those sites indicates that there is some support within the profession for an association between benzene and myelofibrosis refer www.merck.com/mmhe/sec14 and www.caremark.com/wps/portal. Additionally, one of the documents forming part of the " web " exhibits the copy of which is so poor that the web address cannot be identified refers to an increased incidence of myelofibrosis in the case of firemen who have been exposed to benzene. Regard for this material may appear unorthodox however it does highlight that contrary to the opinion of Professor Peach, in 'world medical literature' there does exist a body of literature raising a connection between benzene and myelofibrosis. 96. I readily acknowledge that those documents were not the subject of examination by the respondent, nor were they put to Professors Fox or Peach. However, the opinions expressed in those documents found at web sites of reputable medical organisations, do indicate that the hypothesis is reasonable because the connection between benzene and myelofibrosis is more than a possibility. Veterans and their widows need not establish a hypothesis as reasonable by a "causal connection" (refer Professor Peach) or a "definitive causal connection" (refer evidence of Dr Byron Collins). The finding of the reasonableness of the hypothesis does not depend on a resolution of or choice between competing medical theories. The contents of the report of Dr Byron Collins, the survey material from Sweden referred to in the report of Tondel (including his own survey), the United Kingdom survey referred to by Professor Peach and the information found from the internet sources as tendered does point to material raising a reasonable hypothesis connecting the operational service of the deceased, his exposure to benzene by petroleum products and myelofibrosis. The hypothesis is not "obviously fanciful, impossible, incredible, or not tenable or too remote or too tenuous" (refer East v Repatriation Commission (1987) 74 ALR 518 at 533). 58 An analysis of the Tribunal's reasons show, in my view, the bundle of documents was relied upon in at least two respects. One was to impact particularly upon the acceptance of the evidence given by Professor Peach. The other was to show the connection between benzene and myelofibrosis was "more than a possibility", which was a critical issue. 59 It may be said that in view of Dr Collins' evidence and the other material referred to by the Tribunal supporting the relevant connection, the acceptance or otherwise of Professor Peach's evidence has immaterial. However, it does seem to me that the Tribunal did look into the relative strengths of the expert evidence, and could not find the evidence of either Professors Fox or Peach of such a "superior reliability" to persuade it that there was no sufficient ground to determine that the death of the veteran was war-caused. The bundle of documents was used by the Tribunal to highlight a view which was contrary to Professor Peach's in relation to the existence of world medical literature, and impacted upon the Tribunal's assessment of Professor Peach adversely to the applicant.


case_outcome: cited

case_title: Giretti v Deputy Commissioner of Taxation (1996) 70 FCR 151

case_text: I have a discretion under s 44(4) of the AAT Act, which includes not remitting the matter if that is appropriate. This is not a case where this Court can be sure what decision would have been reached had procedural fairness be accorded. I cannot be satisfied for the reasons given above that there is no possibility of a different result: see Giretti v Commissioner of Taxation (1996) 70 FCR 151 at 165-166; and O'Sullivan (2003) 128 FCR at [62].


case_text: Generally speaking, if a court decides that the Tribunal has erred in law, the Tribunal decision is set aside and the matter is remitted for determination according to law: see Morales v Minister for Immigration & Ethnic Affairs (1995) 60 FCR 550 and compare with Harradine v Secretary, Department of Social Security (1989) 25 FCR 35.


case_text: Section 39(1) of the AAT Act provided that, subject to provisions which are irrelevant for present purposes, the Tribunal must ensure that every party sitting before a Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision, and to make submissions in relation to those documents. It seems to be clear that the section provides that the Tribunal must apply notions of procedural fairness: see Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 per Mason J and O'Sullivan v Repatriation Commission [2003] FCA 387 ; (2003) 128 FCR 590 at [45] . Obviously the requirements will depend upon the particular circumstances of each case. It may be in some circumstances where a party is represented then there is some onus upon a party to be proactive in requesting from the Tribunal an opportunity to present its case such as, for instance, in seeking an adjournment: see, e.g. Schiffer v Pattison [2001] FCA 1094. However, as I have said, in this case the Tribunal and the respondent effectively represented there would be an opportunity for the applicant to present further submissions on the issue of the bundle of documents once those documents had been seen. That opportunity was not given.


case_text: No reliance can be placed upon s 119 of the VE Act to fill in gaps where there is insufficient evidence to assist the respondent's case: see Repatriation Commission v Bey (1997) 79 FCR 364 at 373-374 and Mason v Repatriation Commission [2000] FCA 1409. However, in my view there were no relevant gaps in the material before the Tribunal, and for the reasons I have indicated, the evidence before the Tribunal supported the Tribunal's conclusions.


case_title: Morales v Minister for Immigration & Ethnic Affairs (1995) 60 FCR 550


case_text: Section 39(1) of the AAT Act provided that, subject to provisions which are irrelevant for present purposes, the Tribunal must ensure that every party sitting before a Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision, and to make submissions in relation to those documents. It seems to be clear that the section provides that the Tribunal must apply notions of procedural fairness: see Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 per Mason J and O'Sullivan v Repatriation Commission [2003] FCA 387 ; (2003) 128 FCR 590 at [45] . Obviously the requirements will depend upon the particular circumstances of each case. It may be in some circumstances where a party is represented then there is some onus upon a party to be proactive in requesting from the Tribunal an opportunity to present its case such as, for instance, in seeking an adjournment: see, e.g. Schiffer v Pattison [2001] FCA 1094. However, as I have said, in this case the Tribunal and the respondent effectively represented there would be an opportunity for the applicant to present further submissions on the issue of the bundle of documents once those documents had been seen. That opportunity was not given. 63 Another way to approach the present issue is to treat the actions of the Tribunal as a breach of s 39(1) of the AAT Act, and thus there was a failure to comply with its statutory duty. This would itself be an error of law: see O'Sullivan (2003) 128 FCR at [60]. 64 I have a discretion under s 44(4) of the AAT Act, which includes not remitting the matter if that is appropriate. This is not a case where this Court can be sure what decision would have been reached had procedural fairness be accorded. I cannot be satisfied for the reasons given above that there is no possibility of a different result: see Giretti v Commissioner of Taxation (1996) 70 FCR 151 at 165-166; and O'Sullivan (2003) 128 FCR at [62].


case_title: Repatriation Commission v Bey (1997) 149 ALR 721


case_text: The threshold question posed by s 120(3) requires a consideration of the whole of the material before the decision-maker and the raised hypothesis connecting the death with the circumstances of the particular service rendered by the veteran: see Repatriation Commission v Owens (1996) 70 ALJR 904. Further, it is mandatory to find in favour of an applicant unless the decision-maker forms an opinion that the whole of the material does not raise the reasonable hypothesis referred to in the statute: see Repatriation Commission v Whetton (1991) 31 FCR 513 at 521.


case_text: The question as to the kind of death suffered by a veteran is to be determined by applying the standard of proof in s 120(4) of the VE Act; that is, to the reasonable satisfaction of the decision-maker. That section imports the civil standard of proof: see Repatriation Commission v Smith (1987) 15 FCR 327 at 335. 9 Section 120(1), so far as is relevant, provides: Where a claim under Part II for a pension in respect of...the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the death of the veteran was war-caused...unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. 10 Relevantly, s 120(3) provides: In applying subsection (1)...in respect of the...death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining: ... (c) that the death was war-caused or defence-caused; ...if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the...death with the circumstances of the particular service rendered by the person.


case_text: The threshold question posed by s 120(3) requires a consideration of the whole of the material before the decision-maker and the raised hypothesis connecting the death with the circumstances of the particular service rendered by the veteran: see Repatriation Commission v Owens (1996) 70 ALJR 904. Further, it is mandatory to find in favour of an applicant unless the decision-maker forms an opinion that the whole of the material does not raise the reasonable hypothesis referred to in the statute: see Repatriation Commission v Whetton (1991) 31 FCR 513 at 521. 17 The question for me is whether there was sufficient material before the Tribunal pointing to or supporting a reasonable hypothesis connecting the veteran's death with the circumstances of his service having regard to these facts. I say having regard to these facts because the reasonableness of the hypothesis is to be considered in the context of the relevant factual scenario. This includes that exposure to benzene occurred some 52 years before the veteran contracted myelofibrosis, and was at best intermittent whilst cleaning guns and machinery over a period of approximately 12 months: see, e.g. the approach taken in Whetton 31 FCR 513. This is not to say that proof of any of these facts is necessary at this stage, just that they needed to be considered in connection with the hypothesis before the Tribunal.


case_title: Schiffer v Pattison [2001] FCA 1094


case_outcome: considered

case_text: I published my reasons for judgment in respect of these taxation appeals on 30 October 2009 I directed the parties to bring in proposed short minutes of orders to give effect to the conclusions which I had reached. These reasons for judgment should be read in conjunction with those which I published that day: Russell v Commissioner of Taxation of the Commonwealth of Australia [2009] FCA 1224. As those reasons reveal, a particular motivation for not then pronouncing final orders was an apprehension on my part that procedural fairness required the affording of an opportunity to the parties to make submissions as to whether the jurisdiction conferred upon the Court by the Taxation Administration Act 1953 (Cth) (TAA) in relation to the hearing and determination of a taxation appeal extended to the remission of a matter to the Commissioner of Taxation (Commissioner) for the purpose of amending an income tax assessment so as to increase the amount of the appellant taxpayer's taxable income for a given income year. Another motivation was the need for the parties to have an opportunity to assimilate lengthy reasons for judgment in respect of appeals raising a plethora of issues in respect of which each party had enjoyed mixed success before making submissions in respect of costs. The parties have now made submissions with respect to the question of the powers exercisable on a taxation appeal, costs and the form of orders disposing of the appeals. I shall deal with each in turn. Power to make orders authorising an assessment increasing taxable income


case_text: he had, similarly, earlier also not sought in the High Court in Commissioner of Taxation v ANZ Savings Bank Ltd [1994] HCA 58 ; (1994) 181 CLR 466 at 481 ( ANZ Savings Bank Case ), the Commissioner did not seek to rely upon the legislative stipulation, previously found in s 200B(1) of the Income Tax Assessment Act 1936 (Cth) (ITAA 1936), now found in s 14ZZQ(1) of the TAA, that "when the order of the Federal Court in relation to the decision becomes final, the Commissioner must, within 60 days, take such action, including amending any assessment or determination concerned, as is necessary to give effect to the decision". Thus, in the present case, the Commissioner did not contend that this section authorised the issuing of an amended assessment so as to give effect to the conclusion which I had reached as to the income tax assessment for the 2001 income year had not been shown to be excessive because it understated Mr Russell's true taxable income for that year. That position was adopted even though then, as now, this Court is empowered on the hearing and determination of an appeal against an objection decision, to "make such order in relation to the decision as it thinks fit, including an order confirming or varying the decision": see s 14ZZP of the TAA, which replicates a like conferral of power found at the time of the ANZ Savings Bank Case in the then s 199 of the ITAA 1936. It is, on further reflection prompted by consideration of these supplementary submissions, by no means impossible to conceive of a basis upon which, in the circumstances of the present case, power would exist to order remission to the Commissioner for the purpose of making the requisite amendment. Section 200B of the ITAA 1936 was one of the provisions introduced into the ITAA 1936 by the Taxation Boards of Review (Transfer of Jurisdiction) Act 1986 (Cth) (Transfer of Jurisdiction Act) to which I made reference in my earlier reasons for judgment. In their joint judgment in the ANZ Savings Bank Case (at 481), Brennan, Deane, Dawson and Toohey JJ observed of it that it "has an essentially mechanical operation, aimed at ensuring that in the absence of a power in the Tribunal or a court itself to amend an assessment the Commissioner will do so in order to implement a decision of the Tribunal or a court". In a footnote to this passage their Honours note that such a power was removed from the courts by the Transfer of Jurisdiction Act. The way in which their Honours describe this section and the tenor of their joint judgment in relation to the then s 190(b) and s 199(1) of the ITAA 1936 does not, with respect, suggest that they apprehended that a consequence of the amendments made by the Transfer of Jurisdiction Act was that a sequel to the Commissioner's being able to support an assessment on a taxation appeal on a ground not taken into account at the time of assessment might be that it was no longer possible for that assessment to be amended so as to give effect to the basis upon which the Commissioner had successfully supported the assessment before a court. Rather, all it suggests is that they considered that the change wrought by the Transfer of Jurisdiction Act was, in substance, nothing more than to the way in which necessary amendment of the assessment was to occur, ie by administrative action by the Commissioner instead of, as had hitherto been the case, by court order; hence the description, "mechanical".


case_text: taxation legislation must necessarily provide for a taxpayer to have the ability to have recourse to an exercise of judicial power so as to contest a decision by the Commissioner that he is subject to a taxation liability: see the High Court authorities to which I refer in Russell v Commissioner of Taxation [2008] FCA 343 ; (2008) 168 FCR 330 at 333, [13] . The administrative decision by which that liability is ascertained is an assessment, not an objection decision. The latter decision might result in the confirmation or varying of an assessment but it remains an assessment by which the taxable income and the tax payable thereon is, in the absence of further challenge, fixed for a given income year. The exercise of judicial power having in this case been sought, there is, at least on reflection, something rather odd about the notion that, even though, in the exercise of that judicial power, a conclusion has been reached that an assessment is not excessive because, as the Commissioner has permissibly and successfully contended that, in truth, the assessment understates the taxable income, and even though s 14ZZP of the TAA is broadly expressed, warrant for the making of an amended assessment is to be found only in s 170 of the ITAA 1936 (but not s 170(7)), assuming that conditions then obtain for the administrative exercise of that power. That would leave open the prospect of a further objection and appeal or review proceeding in respect of that amended assessment. That would also mean that the exercise of judicial power had not resulted in the final determination, as between the Commissioner and the taxpayer, of the latter's assessed taxation liability for a given income year. In truth, it is as yet an open question as to whether there is power to order remission for the purpose of amendment so as to increase a taxation liability. Mr Russell also enjoyed success in an interlocutory controversy in respect of which I gave directions on 14 March 2008: Russell v Commissioner of Taxation [2008] FCA 343 ; (2008) 168 FCR 330. The costs of and incidental to that interlocutory proceeding should not form part of the Commissioner's costs. There are also other reserved costs. The Commissioner should have two thirds of these as well as those two thirds of the appeal hearing costs. Orders Mr Russell agrees with the draft short minute of orders for the disposing of the appeals proposed by the Commissioner. These, in turn, have evidently been drawn by reference to my earlier reasons for judgment. I was initially inclined to think that, in respect of the 2001 income year, I should make an order confirming the objection decision insofar as it concluded that the assessment in respect of the 2001 year was not excessive but on the basis that Mr Russell's taxable income for that year was $1869.23 higher than that assessed and thus his assessed tax was in fact lower than that payable in respect of that higher taxable income. The draft proposes the making of such an order.


case_text: this as it may, the position which obtains is that, though he has now been offered the opportunity to seek the same, the Commissioner has expressly not sought the making of any order which would have the effect of authorising him to amend Mr Russell's 2001 income tax assessment so as to increase his taxable income and, necessarily, the tax payable thereon. Further, Mr Russell has not sought the making of any such order. That being so, and like Sackville J in DB Rreef Funds Management Ltd v Commissioner of Taxation [2005] FCA 509 ; (2005) 218 ALR 144 at 149, [19] , I consider that the following observations made by the High Court in Australian Communication Exchange Ltd v Deputy Commissioner of Taxation [2003] HCA 55 ; (2003) 77 ALJR 1806 at 1813-1814, [41] are apposite: We appreciate the width of the power conferred upon the Federal Court by s 14ZZP of the [TAA] to vary the disallowance of objections to assessments. Nevertheless, we question, at least in the circumstances of this particular case, the appropriateness of the adoption by the Full Court of an approach, and a conclusion, that neither party has sought. Perhaps it is desirable in the public interest that contributions be made to an approved fund calculated in accordance with the Full Court's compromise formula. But even though that may be so, which we are inclined to doubt as the respondent as the party responsible for the administration of the Acts advanced no such proposition, this remains civil litigation between parties who have identified the issues upon which they are joined. Even if we thought the reasoning of the Full Court correct, we would still entertain doubt whether we should uphold its conclusion, unwanted as it is by each side. I shall not therefore make an order remitting the matter to the Commissioner for the purpose of amending the 2001 income tax assessment so as to increase the amount of the taxable income and the tax payable thereon. I expressly refrain from voicing any opinion as to whether, either in light of the position he has adopted in this case or otherwise, the Commissioner has any other power to raise such an amended assessment. Costs


case_outcome: applied

case_title: Australian Communication Exchange Ltd v Deputy Commissioner of Taxation [2003] HCA 55 ; (2003) 77 ALJR 1806


case_text: was his right, Mr Russell appeared on his own behalf. In so doing, he did not thereby become entitled to any award of costs in respect of the time which he spent in the preparation for and presentation of his case. The reason why that is so was explained by the High Court in Cachia v Hanes [1994] HCA 14 ; (1993-1994) 179 CLR 403 at 410-411: It has not been doubted since 1278, when the Statute of Gloucester ((4) 6 Edw.I c.1.) introduced the notion of costs to the common law, that costs are awarded by way of indemnity (or, more accurately, partial indemnity) for professional legal costs actually incurred in the conduct of litigation. They were never intended to be comprehensive compensation for any loss suffered by a litigant. As Coke observed of the Statute of Gloucester , the costs which might be awarded to a litigant extended to the legal costs of the suit, "but not to the costs and expences of his travell and losse of time" ((5) Coke, Second part of the Institutes of the Laws of England at 288. See also Howes v Barber [1852] EngR 15 ; (1852) 18 QB 588 at 592 [1852] EngR 15 ; (118 ER 222 at 224); Dowdell v The Australian Royal Mail Co. (1854) 3 El and Bl 902 at 906 [1854] EngR 604 ; (118 ER 1379 at 1381).) These types of costs do not therefore fall within the terms of the power to award costs conferred on the Court by s 43 of the Federal Court of Australia Act . Absent such statutory authority, the Court has no power to award any costs. Mr Russell did not seek an award of costs in respect of the time which he spent in the preparation for and presentation of his case but he did seek disbursements related to his appearance. The latter though are what Coke termed in the passage quoted "the expences of his travell". In my opinion, there is no power to award Mr Russell such costs. This must follow from the proposition that he is not entitled to any award in respect of the costs of the appearance itself. Such travel expenses were not allowed in Cachia v Hanes [1994] HCA 14 ; (1993-1994) 179 CLR 403 at 417, although that outcome is there described as one within the discretion of the taxing officer. Having regard to Coke's observation, the disentitlement might, with respect, have been regarded as absolute rather than discretionary. The position is different in respect of the disbursements incurred by Mr Russell in securing the attendance of Mr McKenzie. These are disbursements in respect of a witness. There is power to make an award in Mr Russell's favour in respect of them. The amounts claimed in this regard strike me as reasonable, even modest. I therefore intend to make an order in Mr Russell's favour in respect of these disbursements. I shall also order that the amount thereof be set off against the percentage costs which I am disposed to award to the Commissioner. I conceive that the interests of justice are best served by an express recognition in Mr Russell's favour of disbursements intimately associated with an issue upon which he enjoyed conspicuous success rather than by some arbitrary adjustment of a percentage of costs otherwise appropriate to award in favour of the Commissioner. It will be apparent from the indication in the preceding paragraph as to the awarding to the Commissioner of a percentage of his costs that I am not disposed to make no order as to costs. Such an order is sometimes made as a matter of discretion in, for example, a case where each party is legally represented and each has enjoyed degrees of success and failure on issues such that, albeit as a matter of advance impression, were there to be issues or percentage based taxations of their respective costs and mutual set off of the resultant awards the end result might be that neither party came to owe the other anything in respect of costs. Even assuming that the parties had enjoyed roughly equal measure of success, to adopt that approach in this instance would be but a different way of giving impermissible recognition by way of set off to costs associated with Mr Russell's case preparation and appearance.


case_title: Scanlan v Swan (1982) 61 FLR 468

case_text: may, with respect, be that a degree of rigidity of thinking and misconception attended the objection decisions insofar as they affirmed the penalty uplift for obstruction. This is not the first occasion either when in practice or thereafter when I have seen an obstruction based penalty uplift imposed on assessment and maintained on objection only to be abandoned in appeal or review proceedings. Those within the Commissioner's office who conceive such a penalty uplift is applicable on assessment or who review the same on objection would be well advised to read the observations made by Helman DCJ (as his Honour then was) on the subject of what does and does not amount to obstruction in Scanlan v Swan (1982) 61 FLR 468 at 472-473 (Special leave to appeal to the High Court from this decision was granted but then revoked on the hearing of the appeal), a judgment described by Gray J in Australian Federation of Air Pilots v Ansett Transport Industries (Operations) Pty Ltd (No 1) [1991] FCA 61 ; (1991) 28 FCR 379 at 385 as, "helpful". What is relevant for present purposes though is that, in these proceedings, the Commissioner readily and at an early stage conceded that Mr Russell ought to succeed in respect of this aspect of his appeals. That is hardly behaviour consistent with an absence of good faith on the Commissioner's part. The same may be said in respect of the Commissioner's ready and voluntary concession that the amount assessed in the 2002 income year was excessive and in respect of his conceding that the goods and services tax and related penalty assessments were excessive insofar as they related to the "resident agent amount".


case_title: Australian Federation of Air Pilots v Ansett Transport Industries (Operations) Pty Ltd (No 1) [1991] FCA 61 ; (1991) 28 FCR 379


case_outcome: followed

case_text: It was only during the hearing of the latter matter that I became aware of the dictum of French and Stone JJ in Comcare v Canute [2005] FCAFC 262 ; (2005) 148 FCR 232 at [63] - [66] with which, with respect, I agreed, but which nonetheless was inconsistent with the test that I had applied in Wiegand . 6 The question of construction I decided in Sahu-Khan concerned the proper construction to be given the phrase "in a material degree" in the definition of "disease" in s 4(1) of the SRC Act. Put shortly "disease" is defined to mean any ailment or aggravation of any ailment suffered by an employee "that was contributed to in a material degree by the employee's employment by the Commonwealth". In conformity with the dictum in Canute , I held that the phrase imposed a more demanding requirement of contribution than had conventionally been considered to be the case, largely because of misplaced reliance upon observations made in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323 (a decision under earlier and differently worded legislation).


case_title: Comcare v Sahu-Khan [2007] FCA 15

case_text: On 19 January 2007 I delivered judgment in the latter matter. I upheld the construction of the s 4(1) definition propounded by Comcare, but dismissed the application on the basis that it would be futile to remit the matter having regard to the findings made by the Tribunal: Comcare v Sahu-Khan [2007] FCA 15. 5 I subsequently heard the parties in this matter on the question whether my judgment should be set aside and the orders made that I had foreshadowed. On 16 February 2007 I made those orders. Accepting that the discretion to set aside a judgment not entered should be exercised with caution, I am satisfied that the circumstances of this matter warrant the course I have taken. A miscarriage of justice is being averted. 6 The question of construction I decided in Sahu-Khan concerned the proper construction to be given the phrase "in a material degree" in the definition of "disease" in s 4(1) of the SRC Act. Put shortly "disease" is defined to mean any ailment or aggravation of any ailment suffered by an employee "that was contributed to in a material degree by the employee's employment by the Commonwealth". In conformity with the dictum in Canute , I held that the phrase imposed a more demanding requirement of contribution than had conventionally been considered to be the case, largely because of misplaced reliance upon observations made in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323 (a decision under earlier and differently worded legislation).


case_text: The question of construction I decided in Sahu-Khan concerned the proper construction to be given the phrase "in a material degree" in the definition of "disease" in s 4(1) of the SRC Act. Put shortly "disease" is defined to mean any ailment or aggravation of any ailment suffered by an employee "that was contributed to in a material degree by the employee's employment by the Commonwealth". In conformity with the dictum in Canute , I held that the phrase imposed a more demanding requirement of contribution than had conventionally been considered to be the case, largely because of misplaced reliance upon observations made in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323 (a decision under earlier and differently worded legislation). 7 It clearly was the case in the present matter that Dr Coyte, the medical practitioner whose evidence the Tribunal accepted, gave his evidence concerning what matters contributed in a material degree to Mr Wiegand's condition after being directed by the Tribunal in accordance with the less exacting Treloar test. That direction was given after Dr Coyte had been asked by Mr Wiegand in oral examination about whether his employment did or did not contribute materially to his condition, to which Dr Coyte replied: "one would have to define what degree of contribution is material". 8 I am satisfied that Dr Coyte's evidence was contrived by the Treloar direction. I am not satisfied that it would not have been different and more discerning if he had been properly directed. Given the significance attributed to Dr Coyte's evidence in the Tribunal's reasons, I am not prepared to say that it would be futile to remit the matter to the Tribunal because if it applied the proper test it would nonetheless be driven ineluctably to the same conclusion. 9 Accordingly, I have made the orders I earlier foreshadowed. I would add that, in my view, Comcare should have appropriate procedures in place to ensure consistency in the stances it takes on matters of statutory interpretation. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 1 March 2007 Counsel for the Applicant: The Applicant appeared in person. Counsel for the Respondent: Mr S Cole Solicitor for the Respondent: Sparke Helmore Date of Hearing: 16 February 2007 Date of Judgment: 1 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/237.html


case_text: As Weinberg J observed in Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 ; (2005) 148 FCR 446 at 587, [577] , s 5(3)(a) of the AD(JR) Act "seems merely to restate the doctrine of jurisdictional fact". Where the material "jurisdictional fact" is a state of administrative satisfaction that does not leave much scope for the operation of s 5(3)(a). When one recalls the impact of the use of the word "considers" in relation to the "second condition" for which s 24CL provides and that it is evident from the Delegate's reasons that she "considered" that the second condition was satisfied, the "particular matter" to which s 5(3)(a) of the AD(JR) Act refers is, in that language of that paragraph, "established". 45 In Australian Retailers Association v Reserve Bank of Australia , Weinberg J also offered (148 FCR at 587, [578]), a succinct summary of the views expressed by Black CJ (with whom Spender and Gummow JJ agreed) in Curragh Queensland Coal Mining Ltd v Daniel [1992] FCA 44 ; (1992) 34 FCR 212 in what has become a seminal judgment as to the effect of s 5(3)(b) of the AD(JR) Act. It was there held that s 5(3)(b) could only be satisfied if: • the decision was "based on" the existence of a "particular fact", meaning a fact that was "critical to the making of the decision"; • there was no evidence or other material to support the finding of that particular fact; and • it could be shown that the particular fact did not exist.


case_text: As a matter of construction, the use of the verb "considers" in s 24CL(3) has the effect of placing that subsection within "that category of laws whose operation is made conditional upon the opinion or satisfaction as to certain matters of a designated authority or person, with the consequence that the merits of the matter are not examinable upon judicial review": The Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10 ; (1997) 187 CLR 297 , at 303. As the High Court found in that case (ibid), the word "considers" was used to that end in the legislation then under consideration. Later, in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 650, [127] et seq, Gummow J, who had been a member of the Full Court which delivered the unanimous joint judgement in The Australian Heritage Commission Case , comprehensively analysed this type of statutory provision and the amenability of decisions made thereunder to judicial review. In the course of that analysis, Gummow J drew attention (at 653-654, [136]) to the following remarks made by Gibbs J (as his Honour then was) in Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 , at 118-119 in relation to the judicial review of a "satisfaction" based decision: In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. After citing this passage, Gummow J added (at 654, [137]): 137. This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.


case_text: A decision to register an agreement which was not an ILUA would be no decision under s 24CJ of the Native Title Act at all: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614-615, [51] per Gaudron and Gummow JJ. Contrary to the submission of QWI, a challenge on such a ground is quite different to a challenge on an alleged error of law said to arise in the failure of an administrative decision-maker to find a fact, which is not a "jurisdictional fact", where such a finding was never sought before the decision-maker and where its materiality is asserted for the first time on "appeal" or judicial review. Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901 ; (2000) 106 FCR 157 at 175-176, [86] [90] and the authorities there discussed by Carr J highlight the difficulty of contending that such a failure is an error of law but such cases are quite different from one where the power to register is only exercisable if what is presented for registration is indeed an ILUA.


case_text: The symmetry of language "hold or may hold" in the paragraphs of s 251A and s 24CG(3)(b) is striking, as are the references in s 251A to "authorise" and "indigenous land use agreement". It seems to me that this is one of those cases where the draftsman has made a mistake and that it is permissible to construe the reference in the preamble to s 251A to "persons holding native title" as if it read "persons holding or who may hold native title": Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation [1981] HCA 26 ; (1980-1981) 147 CLR 297. I therefore consider that the assumption made by the Applicants and QWI in relation to s 251A was not misplaced. 61 The findings of fact made by the Delegate were such that para (a) of s 251A of the Native Title Act had no application.


case_text: In Australian Retailers Association v Reserve Bank of Australia , Weinberg J also offered (148 FCR at 587, [578]), a succinct summary of the views expressed by Black CJ (with whom Spender and Gummow JJ agreed) in Curragh Queensland Coal Mining Ltd v Daniel [1992] FCA 44 ; (1992) 34 FCR 212 in what has become a seminal judgment as to the effect of s 5(3)(b) of the AD(JR) Act. It was there held that s 5(3)(b) could only be satisfied if: • the decision was "based on" the existence of a "particular fact", meaning a fact that was "critical to the making of the decision"; • there was no evidence or other material to support the finding of that particular fact; and • it could be shown that the particular fact did not exist. 46 The views expressed in Curragh Queensland Coal Mining in relation to s 5(3)(b) of the AD(JR) Act were cited with approval by various members of the High Court in Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 210 at 234. [33] per Gleeson CJ; at 257-258, [115] [118] per Kirby J; at 267, [140] per Callinan J. 47 Grounds 1(a), 1(c), 1(e) and 1(f) each seek to challenge the opinion of the Delegate that the "second condition" was met. 48 The Delegate's reasons reveal that she came to consider whether the "second condition" was met under two headings "Were 'all reasonable efforts' made?" and "Authorisation (s 24CG(3)(b)(ii))". In this commendably focussed fashion, the Delegate expressly directed herself to the very subjects consideration of which s 24CL(3) of the Native Title Act required, i.e. whether the twofold requirements of s 24CG(3)(b) were met. Again recalling the impact of the verb "considers" in s 24CL(3) , what that subsection required in this regard was the making of a value judgement by the Delegate on the basis of the material before her.


case_text: The Delegate was perfectly entitled, as a matter of good public administration, to reach a preliminary view about whether the agreement presented with the application was an ILUA, but the decision to register the same necessarily carried with it the maintenance of that preliminary view that the agreement was an ILUA. For it was only such an agreement that the Delegate was empowered to register. The only decision which falls to the Registrar (or a delegate) to make under Subdiv C of Div 3 of Pt 3 of the Native Title Act which has the requisite quality of statutory provision and affectation of legal rights to make it a "decision" for the purposes of the AD(JR) Act is a decision under s 24CJ as to whether or not to register an agreement on the Register: Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99 , at 130-131, [89]. 40 One permissible ground of review under s 5 of the AD(JR) Act is "that the decision was not authorized by the enactment in pursuance of which it was purported to be made" (s 5(1)(d)); another is "that the decision involved an error of law, whether or not the error appears on the record of the decision" (s 5(1)(f)); yet another is "that the decision was otherwise contrary to law" (s 5(1)(j)). Each or any of these grounds would be apt as a ground for the challenging, on the basis that it was not in law an ILUA, of what purported to be a decision by the Registrar under s 24CJ to register an agreement.


case_text: In the course of his reasons for judgment in Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1 at 242-243, [1265] Lindgren J referred with approval to these observations of Stone J in Lawson's case stating: I agree with Stone J's statement in that case that the effect of s 251B is or may be to give the word 'all' in s 61 a more limited effect than it might otherwise have. In that case, however, there was evidence that all the claimants were given a reasonable opportunity to participate in the authorising process. Other judges have observed that notwithstanding the references to 'all' in s 61, it may be sufficient, at least in some cases, that applicants are authorised by a majority of the persons in the claim group (Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [40] ), or all of those whose whereabouts are known and have capacity to authorise (Quall v Risk [2001] FCA 378 at [33] ), or '"all" those who are reasonably available and who are competent to express an opinion' (De Rose FCA/O'Loughlin at [928])." (Internal case citations where not given by his Honour in passage quoted not reproduced).


case_outcome: distinguished

case_text: Both the Applicants' and QWI's submissions proceeded upon the assumption that it was s 251Athat fell for consideration in relation to "authorisation". The explanation given to cl 24CG(3)(b) in the explanatory memorandum to the Native Title Amendment Bill 1997 which, after further amendments not presently relevant were incorporated, became the Native Title Amendment Act 1998 (Cth), which inserted s 24CG and s 251A into the Native Tile Act , makes reference to "potential native title holders" and also makes reference to cl. 251A as supplying the method of authorisation. Finally, in Kemp v Native Title Registrar [2006] FCA 939 ; (2006) 153 FCR 38 , which was a case where the native title group included those who were but potential native title holders, Branson J and all parties to that case evidently proceeded upon the assumption that s 251A fell for consideration in relation to the authorisation of an ILUA. 62 The Applicants advanced a submission based on the proposition that s 251A was premised on the existence of a single community or other group and that the section could not apply if the community or group were not established on the evidence. Support for this submission was said to be found in the reasons for judgment of Branson J in Kemp v Native Title Registrar [2006] FCA 939 ; (2006) 153 FCR 38. It is true that, in that case, her Honour opined (at 47, [41]): 41 Section 251A is not intended to provide, and does not provide, a means whereby a single authorising decision can be obtained which is binding on two or more groups where their respective claims to hold native title in an area are in conflict. This can be seen from the reference in paragraph (a) to a process of decision-making that, under the traditional laws and customs of the persons who hold or may hold the common or group rights comprising the native title, must be complied with in relation to authorising things of that kind. It is hard to imagine any such process of decision-making where the respective claims of two groups to hold the native title are in conflict; it would require traditional laws and customs in relation to jointly authorising things binding on the members of both groups. 63 The difficulty for the Applicants is that, as already noted, the Delegate found that Kabi Kabi, Gubbi Gubbi and other variant spellings were ways of naming one broader group of related persons who, together, assert native title interests in relation to the project area. That finding was open on the material before her. Kemp's case was decided against the different background of there being conflicting claimant groups, not one group in which there happened to be differing views. Kemp's case is thus distinguishable. 64 A noteworthy feature of Kemp's case is that it is not apparent that any of the parties drew her Honour's attention to a body of authority which had developed in relation to s 251B of the Native Title Act , which makes provision in terms analogous to those of s 251A for how "authorisation" by a "native title claim group" of a native title determination application or a compensation application or dealing with matters relating to the same is to occur. QWI referred me to certain of these authorities, one decided before Lawson's case, the other afterwards but which made reference to prior authority. This was in support of its submission that, on the evidence before her, the Delegate's finding that due "authorisation" of the Traveston Dam Agreement by the native title group had occurred was one open in law for her to reach. 65 A consideration of the authorities concerned is assisted by setting out the material provisions in the Native Title Act . Section 251B provides: 251B Authorising the making of applications For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if: (a) where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind--the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or (b) where there is no such process--the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind. 66 Section 253 of the Native Title Act defines a "native title claim group" thus: native title claim group means: (a) in relation to a claim in an application for a determination of native title made to the Federal Court--the native title claim group mentioned in relation to the application in the table in subsection 61(1); or (b) in relation to a claim in an application for an approved determination of native title made to a recognised State/Territory body--the person or persons making the claim, or on whose behalf the claim is made. 73 The facts of this case make it unnecessary to decide whether and to what extent principles to be distilled from cases concerning s 251B are congruent with all of the observations made by Branson J in Kemp's case in relation to s 251A. 74 What is clear, having regard to the analogies to be drawn in relation to s 251A(b) from the case law in relation to s 251B(b) , is that the process which led up to the so-called "authorisation meeting" of 11 August 2007 was lawful, as was the process of decision-making at that meeting. The non-participation or, as the case may be, dissent of the Applicants did not affect the validity of the authorisation decision which was made in respect of the making of the Traveston Dam Agreement. There was evidence before the Delegate by reference to which she was entitled to conclude that the authorisation decision had been duly made and that each of the Applicants had been given a reasonable opportunity to participate in the adoption of a decision-making process and in the decision-making process itself. 75 There is no merit in grounds 1(a), 1(c), 1(e) and 1(f) of the application.


case_text: In Lawson on behalf of the 'Pooncarie Barkandji (Paakantyi) People) v Minister for Land & Water Conservation (NSW) [2002] FCA 1517 , Stone J made reference to the unfortunately not uncommon experience of internal disputes in a native title claim group interfering with the progress of a native title claim. She cited examples of this experience drawn from earlier cases. The case before her Honour was one where there was no relevant traditional decision-making process capable of dealing with the decisions that needed to be made to progress the claim and to resolve the problem of who was to represent the native title claim group. At issue in Lawson's case was whether a decision-making process adopted in the absence of a traditional decision-making process had resulted in a valid "authorisation" in terms of s 251B of the Native Title Act . Her Honour made the following observations in relation to s 251B: 25 As indicated above, s 251B specifies what is required to establish that 'all the persons in a native title claim ... authorise a person or persons to make a native title determination application' (original emphasis). The effect of the section is to give the word 'all' a more limited meaning than it might otherwise have. If there is no traditional process of decision-making 'in relation to authorising things of that kind' then, in accordance with s 251B(b) , authorisation in accordance with a process of decision-making 'agreed to and adopted, by the persons in the native title claim group' is sufficient. In s 251B(b) there is no mention of 'all' and, in my opinion the subsection does not require that "all" the members of the relevant claim Group must be involved in making the decision. Still less does it require that the vote be a unanimous vote of every member. Adopting that approach would enable an individual member or members to veto any decision and may make it extremely difficult if not impossible for a claimant group to progress a claim. In my opinion the Act does not require such a technical and pedantic approach. It is sufficient if a decision is made once the members of the claim group are given every reasonable opportunity to participate in the decision-making process.


case_text: The review ground of an improper exercise of a power in the making of a decision for which s 5(1)(e) of the AD(JR) Act provides may, inter alia, be established by the taking of an irrelevant consideration into account in the exercise of that power (s 5(2)(a) AD(JR) Act) or by a failure to take into account in the exercise of that power a relevant consideration (s 5(2)(b) AD(JR) Act). A consideration will be "relevant" or, as the case may be, "irrelevant" if the legislation concerned either expressly or by necessary implication either requires or, as the case may be, forbids it to be taken into account by a administrative decision-maker in the making of a decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1985-1986) 162 CLR 24 at 39-40. 77 Section 24CL of the Native Title Act makes provision for registration of an agreement only if particular conditions are satisfied, and forbids registration if they are not. The conditions for which s 24CL provides are "relevant considerations". Of those conditions, what is made "relevant", so far as the "second condition" is concerned, is that the Registrar (or a delegate) considers that the requirements of s 24CG(3)(b) are met. In turn, in considering that question, it is s 24CG(4) which supplies matters which are "relevant". For reasons which I have already given when discussing the statutory scheme, whether the requirements of s 24CG(3)(b) were in fact met is not a "relevant consideration" in the exercise of the power to register an area agreement. 78 I have already noted that the conditions in s 24CL are imposed in respect of what is an "agreement" for the purposes of Subdiv C of Div 3 of Pt 2 of the Native Title Act and that it is only such an "agreement" that the Registrar (or a delegate) is empowered under s 24CJ to register. In my opinion, it necessarily follows that whether the application concerns such an "agreement" is also a "relevant consideration".


case_title: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597


case_title: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611


case_text: Also relevant, so far as the meaning and effect of s 251B of the Native Title Act is concerned, is a decision of the Full Court, to which I was not referred by QWI: Noble v Mundraby, Murgha, Harris and Garling [2005] FCAFC 212 (North, Weinberg and Greenwood JJ). In that case (at [18]), the Full Court made the following remarks concerning s 251B: Section 251B does not require proof of a system of decision-making beyond proof of the process used to arrive at the particular decision in question. The section accommodates a situation where a native title claim group agrees to follow a particular procedure for a particular decision even if other procedures are normally used for other decisions. Nor does s 251B require a formal agreement to the process adopted for the making of a particular decision. Agreement within the contemplation of s 251B may be proved by the conduct of the parties. There was evidence in this case that the claim group conducted itself at the meeting on the basis that it agreed to a vote by the members of the group to determine the question of authorisation. All persons present voted in favour of the motion. Nobody is recorded as leaving the meeting or refusing to vote or in any other way conducting to indicate dissent from the course adopted. There was thus evidence from the conduct of the claim group on which the primary judge could base his conclusion that the requirements of s 251B were satisfied. 71 The following may be distilled from these authorities concerning s 251B: (a) the effect of the s 251B is to give the word 'all' in, materially, the table which appears below s 61(1) a more limited meaning than it might otherwise have; (b) in those cases where there is no relevant traditional decision-making process, s 251B does not mandate any one particular decision-making process, only that it be one that is agreed to and adopted by the persons in the native title claim group or compensation group; (c) "agreed to and adopted by" imports the giving to all of those whose whereabouts are known and have capacity to authorise a reasonable opportunity to participate in the adoption of a particular process and the making of decisions pursuant to that process; (d) unanimous decision-making is not mandated; (e) agreement to a particular process may be proved by the conduct of the parties even in the absence of proof of a formal agreement. 72 Section 251A plays an identical role in relation to native title group "authorisation" decisions as referred to in s 24CG(3)(b)(ii) to that which s 251B plays in relation to native title claim group "authorisation" decisions under s 61 of the Native Title Act . The language employed in s 251A compared to that in s 251B is very similar and each gives content to the word "authorise" in a provision in which the word "all" appears in relation to the making of "authorisation" decisions. The analogy of application between the two sections is indeed a close one. In my opinion therefore, each of the propositions which I have distilled from cases concerning s 251B has like application, mutatis mutandis , to the meaning and effect of s 251A and in relation to the impact of that section on "authorisation" for the purposes of s 24CG(3)(b)(ii) of the Native Title Act . In turn that means that the Delegate was entitled to conclude that the "second condition" for which s 24CL of the Native Title Act provides was satisfied.


case_text: Given that QWI was an active contradictor, the Delegate properly took the stance of abiding the order of the court and not wishing to be heard save if need be in respect of costs: R v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13 , at 17, 35-36. 12 For the reasons which follow, I have concluded that the various grounds upon which, by their amended application, the Applicants sought the judicial review of the agreement registration decision do not lead to the result that the decision should be set aside. Work done under the Traveston Dam Agreement is therefore a valid future act for the purposes of the Native Title Act . 13 The grounds of review which came to be advanced by the Applicants are set out below: 1. The First Respondent erred in law and/or improperly exercised the power conferred upon her in finding that the requirements of Section 24CG(3)(b) of the Native Title Act had been satisfied in circumstances where: (a) There was no evidence from which the First Respondent could reasonably be satisfied that the Gubbi Gubbi People and the Kabi Kabi People were part of the same wider group; (b) The First Respondent failed to take into account the following relevant considerations in reaching the conclusion that the Gubbi Gubbi People and the Kabi Kabi People were part of the same wider group: (i) That membership of the Gubbi Gubbi People was based on matrilineal descent from the apical ancestors James Crowe and Maggie Palmer whereas membership of the Kabi Kabi People was based on cognatic descent from a number of apical ancestors in addition to James Crowe and Maggie Palmer; and (ii) That the Gubbi Gubbi People have a mandatory traditional decision making process in relation to matters affecting land involving the reaching of a consensus decision by the Elders of the respective family groups within the clan without recourse to a majority vote of the group as adopted by the Kabi Kabi People when purporting to authorise the ILUA. (c) There was no evidence from which the First Respondent could reasonably be satisfied that the Gubbi Gubbi People did not adhere to a mandatory traditional decision making process as aforesaid; (d) The First Respondent failed to take into consideration the fact that the Gubbi Gubbi People both before and at the authorisation meeting disputed the decision making process adopted at the authorisation meeting and did not authorise the making of the ILUA; (e) The First Respondent concluded that there was no mandatory traditional decision making process applicable to the subject decision in reliance upon evidence that emanated from persons who where no traditional custodians of such information; (f) There was no evidence from which the First Respondent could reasonably have concluded that the Gubbi Gubbi People withdrew from the agreement making process; (g) The evidence showed that the Gubbi Gubbi People were not afforded the opportunity to separately consider the terms of the ILUA in accordance with the their mandatory traditional decision making process, in circumstances where the persons said to hold native title where encompassed by three separately represented constituent groups; (h) By reason of the matters referred to in paragraphs 1(a) (g) hereof the Applicants are not bound by the Kabi Kabi Peoples authorisation decision and did not themselves authorise the meeting of the ILUA. 2. The First Respondent erred in law and/or improperly exercise the power conferred on her in: (a) Limiting her registration decision to the criteria set out in Section 24CL of the Native Title Act ; (b) Failing to consider or properly consider whether the ILUA was an area agreement that complied with the requirements of Sections 24CB and 24CE of the Native Title Act . (c) Failing to find that the Cultural Heritage Investigation Management Agreement ("the CHIMA") component of the ILUA contravened the provisions of the ACHA and so by reason of Section 24CE of the Native Title Act , that the ILUA was invalid either in whole or in part and was thereby no an area agreement capable of being registered. (d) Failing to find that the CHIMA component of the ILUA in so far as it dealt with the regulation of Cultural Heritage matters over land where Native Title rights had been extinguished was no properly the subject matter of an area agreement pursuant to Section 24CB of the Native title Act and thereby the ILUA was not an area agreement capable of being registered. Particulars (a) The CHIMA regulates Aboriginal Cultural Heritage matters as defined in the ACHA over areas where Native Title rights have been extinguished; and (b) To the extent that the ILUA deal with areas where Native Title rights have been extinguished: (i) The Aboriginal Party under the ACHA ought to have been a party to the ILUA as required by Section 23(3)(a)(iii) of the ACHA; (ii) The Aboriginal ILUA Parties did not have standing under the Native Title Act to enter into ILUA which purported to regulate Aboriginal Cultural Heritage matters over such areas; and (iii) It is not competent for an ILUA to deal with Cultural Heritage maters properly regulated by existing State legislation over land where Native Title rights do not exist.


case_title: The Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10 ; (1997) 187 CLR 297


case_text: In considering the evidence and dismissing RTI's application, the primary Judge exercised a discretion to be exercised according to settled principle. In seeking leave to appeal from the exercise of that discretion, the considerations are whether in all the circumstances the decision of the primary Judge is attended by sufficient doubt to warrant its being reconsidered by the Full Court and whether substantial injustice would result if leave were refused supposing the decision to be wrong ( Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 per Sheppard, Burchett and Heerey JJ; Jarrett v Seymour (1993) 46 FCR 557 at 559 and 560 per Lockhart, Sheppard and Beaumont JJ). 20 Although plainly enough an application for leave to appeal does not involve a reconsideration of the primary application other than to determine whether the Décor Corporation v Dart Industries test is satisfied, it is necessary to consider the contextual facts of the primary application in dealing with the contended errors on the part of the primary Judge. 21 OMI is the patentee of an Australian patent having a priority date of 22 February 2000 for a device described in the patent, in terms of the object of the invention, as 'a single use syringe having a spring biased needle which can shoot back into a hollow plunger stem after use'. The patent describes the problems reflected in the prior art for needle devices, the features of OMI's invention, exhibits particular drawings and defines the integers of each monopoly claim by reference to claims 1 to 13. On 28 October 2003, OMI (or at least a company described as OMI Manufacturing Pty Ltd which for present purposes has been treated by the parties as OMI) entered into a manufacturing and distribution agreement with CMG. 22 The manufacturing and distribution agreement contains these terms: (a) CMG agrees to manufacture the Product in China (the 'Territory'). OMI grants CMG exclusive rights to manufacture the Product worldwide . If CMG cannot supply the Product OMI reserves the right to source an alternative manufacturer. (cl. 2.1) The Product is defined by the schedule to mean each OMI retractable syringe manufactured by CMG in accordance with nominated specifications. The schedule does not identify any specifications. (b) CMG warrants that the Product shall strictly conform with the specifications listed in the schedule (cl. 2.4(c)) (c) CMG agrees to make the necessary modifications to its plant/s to enable it to manufacture the Product in accordance with the production requirements set out in schedule 3. (cl. 2.5) (d) CMG agrees to manufacture the Product only at the locations agreed between the parties from time to time. (cl. 2.6) (e) CMG agrees that OMI shall have the right, on reasonable written notice, to make inspections including of Product manufactured by CMG and plant locations where CMG manufactures the Product. (cl. 2.8) (f) Schedule 3 deals with 'pricing, annual purchase volumes and production requirements' and sets out the pricing for the Product. The pricing provision contemplates that CMG will supply OMI with a retractable syringe of various dimensions including a 1 ml, 3 ml, 5 ml and 10 ml Product. (cl. 2.9, Schedule 3) (g) Schedule 3(1) contemplates that upon supply and purchase of a substantial number of units of the 1 ml, 3 ml and 5 ml Product, prices payable by OMI will be adjusted. Schedule 3 provides that a production year means each 12 month period commencing on the date of delivery of the first order of 1 ml, 3 ml, 5 ml and 10 ml Products or anniversary thereof. Schedule 3 also provides that CMG will invoice OMI for Product manufactured in accordance with a purchase order, on delivery of the Product and invoices will be paid within 90 days. (h) Schedule 3(2) provides that CMG will provide OMI with a certain number of units of the 1 ml version no later than 31 January 2004 and units of the 3 ml, 5 ml and 10 ml version no later than eight calendar months after the date of agreement. (i) CMG may use such trade marks and names in the Territory as are approved from time to time by OMI on all product. The agreed brand name will be Double Dove and will include the OMI Chinese patent number on all packaging. All such uses shall be consistent with all specifications notified by OMI from time to time. (cl. 2.10, cl. 3.3) (j) Clause 2.11 provides 'CMG agrees to manufacture Product in accordance with written purchase orders received from OMI. Each purchase order must set out the number and type of Product required, the date delivery, the delivery point and any other matters as agreed between the parties from time to time. If CMG is unable to meet a purchase order, it must notify OMI as soon as it becomes aware that it will not be able to meet the purchase order'. (k) CMG may not subcontract any part of the manufacturing process in relation to the Product. (cl. 2.13) (l) CMG will have the exclusive right to distribute the Product in the Territory. (cl. 3.1) (m) The term of the agreement is five years from 28 October 2003 plus one three year option unless terminated by written notice upon material breach by either party. The option might be exercised by either party at least six months before the end of the initial five year term by notice expressing a 'desire to exercise the three year option' and in that event, 'the parties agree to enter into good faith negotiations in respect of extending this agreement for one further term of three years'. (cl. 4.1) (n) Clause 4.1 contemplates that OMI might give its written consent for CMG to incur costs in relation to particular manufacturing equipment and in such a circumstance OMI accepts a cost liability for an unamortized portion of the cost upon certain events. (o) CMG agrees to procure Vital Care to keep in place product liability to a certain value in terms and conditions wholly satisfactory to OMI. (cl. 4.5) (p) CMG agrees that it will provide OMI or its agent with any information as may be reasonably requested by OMI in relation to the manufacture of the Product. (cl. 4.08) (q) CMG and OMI agree to treat any information communicated to it or any other person in relation to the Product as confidential subject to identified permitted disclosure. (cl. 4.9) The confidentiality clause is to survive the termination of the agreement.


case_title: Jarrett v Seymour (1993) 46 FCR 557

case_text: In considering the evidence and dismissing RTI's application, the primary Judge exercised a discretion to be exercised according to settled principle. In seeking leave to appeal from the exercise of that discretion, the considerations are whether in all the circumstances the decision of the primary Judge is attended by sufficient doubt to warrant its being reconsidered by the Full Court and whether substantial injustice would result if leave were refused supposing the decision to be wrong ( Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 per Sheppard, Burchett and Heerey JJ; Jarrett v Seymour (1993) 46 FCR 557 at 559 and 560 per Lockhart, Sheppard and Beaumont JJ).


case_title: House v The King (1936) 55 CLR 449

case_text: In addressing those considerations it is important to remember that the question of whether in all the circumstances the decision of the primary Judge is attended by sufficient doubt is to be considered in the context of the observation of their Honours Dixon, Evatt and McTiernan JJ in the well known passage from House v The King (1936) 55 CLR 449 at pp 504 and 505. See also Johnston v Cameron & Ors [2002] FCAFC 251 ; (2002) 124 FCR 160 (FC, Branson, Tamberlin and Finkelstein JJ) per Branson J p 163 [9] and Australian Broadcasting Commission v Parish (FC, Bowen CJ, Frankie and Deane JJ) (1980) 29 ALR 228 at p 232 per Bowen CJ. 89 As a result, the conclusion of the primary Judge that RTI's case 'cannot possibly succeed' [16] on the footing discussed at [62] to [88] of these reasons is attended by sufficient doubt as to warrant reconsideration by the Full Court subject to the question of whether substantial injustice would result if leave were refused. However, such a conclusion assumes at its centre that the supply of syringes by CMG involves the use by CMG of RTI's confidential information. 104 In those cases where there is no closely substitutable field of common activity (such as the manufacture of immediately substitutable retractable syringes), use of another's confidential information may be more readily identifiable whether in the form of etchings submitted to a publisher, confidential information contained within a manuscript, an instruction manual provided to a third party or a description of a methodology for a manufacturing process or business method. In the absence of very precise identification particularly in the case however of parties involved in closely substitutable fields of common endeavour, of the information, its confidential character and its use, assertions or general conclusionary contentions relied upon to support a claim of use are insufficient and will not give rise to inferences of use. 105 An illustration of the distinction might be that although Charles Darwin received on 18 June 1858 Alfred Wallace's letter setting out a theory of natural selection in the evolution of species, Darwin's address to the Linnean Society in London on 1 July 1858 outlining his central thesis of the origin of species by means of natural selection was the emanation of years of his own research, field studies and thinking. 106 The claims of use of information said to be confidential to RTI made by paragraphs 70(a), (b), (c), (d), (e), (f) and (g); and paragraph 72(b), (d); and paragraphs 73(a), (b), (c), (d), (e), (f), (g), (h), (i) and (j) against the background of 'SW11' are no more than an assertion. As to the plunger seal, RTI's evidence is that OMI uses the 'specific type' of rubber used by RTI. However, in the light of OMI's response that it uses santoprene and specified santoprene 181 as early as January 2002, RTI says that santoprene is a form of rubber. That controversy of fact seems to be inconsistent with the initial contention of use of the 'specific type' of rubber.


case_text: In addressing those considerations it is important to remember that the question of whether in all the circumstances the decision of the primary Judge is attended by sufficient doubt is to be considered in the context of the observation of their Honours Dixon, Evatt and McTiernan JJ in the well known passage from House v The King (1936) 55 CLR 449 at pp 504 and 505. See also Johnston v Cameron & Ors [2002] FCAFC 251 ; (2002) 124 FCR 160 (FC, Branson, Tamberlin and Finkelstein JJ) per Branson J p 163 [9] and Australian Broadcasting Commission v Parish (FC, Bowen CJ, Frankie and Deane JJ) (1980) 29 ALR 228 at p 232 per Bowen CJ.


case_title: Australian Broadcasting Commission v Parish (1980) 29 ALR 228


case_text: As to the settled principles to be applied in an application pursuant to O 15A, r 6, the principles are these: the rule is to be beneficially construed and afforded the fullest scope its language reasonably allows; the 'proper brake' upon any excesses in the application of the rule lies in the exercise of the court's discretion ; the test for determining 'reasonable cause to believe' is an objective one; 'reasonable cause to believe' strikes a relationship with whether the applicant has a right to obtain particular relief or whether the applicant may have a right to relief and thus hypothecates a remedial outcome in the proposed proceedings on the assumption the evidence makes out each integer in the applicant's cause of action; such a belief, on either footing, requires more than mere assertion, suspicion or conjecture; a mere possibility of a right to relief is insufficient; the evidence, that is, an assessment of all the evidence, must incline the mind towards acceptance of the existence of a matter or fact in controversy out of which a right to relief arises or may arise; it is no answer to an application under O 15A, r 6 to say that the proceeding is in the nature of a 'fishing expedition'; the rule contemplates that an applicant will forensically examine the field of documents the subject of the order expressly for the purpose of enabling a decision to be made whether to commence a proceeding; although the rule contemplates such an examination of the respondent's documents the subject of the order, the invasive nature of the order is predicated upon an objectively established reasonable cause to believe that the applicant has or may have a right to contended relief; although an applicant does not need to establish a prima facie case, an applicant must establish that there is a reasonable cause to believe that each element of the potential cause of action is made out; although the threshold test may be set at quite a low level, the evidence must establish facts crystallising all the elements of a cause of action grounding the possible grant of the contended relief (see: St. George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147 per Hely J [25] [29]; Hooper & Ors v Kirella Pty Ltd [1999] FCA 1584 ; (1999) 96 FCR 1 at pp 11 and 12 per Wilcox, Sackville and Katz JJ [35] [40]; Glencore International AG v Selwyn Mines Ltd (2006) 223 ALR 238 at pp 240 and 241 [8] [16] per Lindgren J; C7 Pty Ltd v Foxtel Management Pty Ltd [2001] FCA 1864 at [12] per Gyles J).


case_text: As to the settled principles to be applied in an application pursuant to O 15A, r 6, the principles are these: the rule is to be beneficially construed and afforded the fullest scope its language reasonably allows; the 'proper brake' upon any excesses in the application of the rule lies in the exercise of the court's discretion ; the test for determining 'reasonable cause to believe' is an objective one; 'reasonable cause to believe' strikes a relationship with whether the applicant has a right to obtain particular relief or whether the applicant may have a right to relief and thus hypothecates a remedial outcome in the proposed proceedings on the assumption the evidence makes out each integer in the applicant's cause of action; such a belief, on either footing, requires more than mere assertion, suspicion or conjecture; a mere possibility of a right to relief is insufficient; the evidence, that is, an assessment of all the evidence, must incline the mind towards acceptance of the existence of a matter or fact in controversy out of which a right to relief arises or may arise; it is no answer to an application under O 15A, r 6 to say that the proceeding is in the nature of a 'fishing expedition'; the rule contemplates that an applicant will forensically examine the field of documents the subject of the order expressly for the purpose of enabling a decision to be made whether to commence a proceeding; although the rule contemplates such an examination of the respondent's documents the subject of the order, the invasive nature of the order is predicated upon an objectively established reasonable cause to believe that the applicant has or may have a right to contended relief; although an applicant does not need to establish a prima facie case, an applicant must establish that there is a reasonable cause to believe that each element of the potential cause of action is made out; although the threshold test may be set at quite a low level, the evidence must establish facts crystallising all the elements of a cause of action grounding the possible grant of the contended relief (see: St. George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147 per Hely J [25] [29]; Hooper & Ors v Kirella Pty Ltd [1999] FCA 1584 ; (1999) 96 FCR 1 at pp 11 and 12 per Wilcox, Sackville and Katz JJ [35] [40]; Glencore International AG v Selwyn Mines Ltd (2006) 223 ALR 238 at pp 240 and 241 [8] [16] per Lindgren J; C7 Pty Ltd v Foxtel Management Pty Ltd [2001] FCA 1864 at [12] per Gyles J). 18 First , the reference in the authorities to the test for determining 'reasonable cause to believe' as an objective test, recognises that the phrase in O 15A, r 6(a) 'where there is reasonable cause to believe' connotes 'where to the court at the hearing of the application' there is reasonable cause to believe. Secondly , a demonstrated controversy of fact emerging on the evidence in the application, to be resolved by findings of fact in the contemplated proceeding out of which a right to obtain identified relief is said to arise, will not answer a contention that there is reasonable cause to believe that the applicant may have a right to the relevant relief. However, the controversy of fact must demonstrate that first, the contended facts go beyond mere suspicion, assertion or conjecture and secondly, potential findings of fact in favour of the applicant support all elements of the cause of action that may give rise to the contended relief (see Minister for Health and Aged Care v Harrington Associates Ltd [1999] FCA 549 per Sackville J [28]; Paxus Services Limited v People Bank Pty Limited (1990) 99 ALR 728 per Burchett J (NG 670/1990); Hooper v Kirella (supra) [39]; Quanta Software International Pty Ltd v Computer Management Services Pty Ltd (2000) 175 ALR 536 at 541-2 per Sackville J [24]).


case_title: Glencore International AG v Selwyn Mines Ltd (2006) 223 ALR 238


case_title: C7 Pty Ltd v Foxtel Management Pty Ltd [2001] FCA 1864


case_text: First , the reference in the authorities to the test for determining 'reasonable cause to believe' as an objective test, recognises that the phrase in O 15A, r 6(a) 'where there is reasonable cause to believe' connotes 'where to the court at the hearing of the application' there is reasonable cause to believe. Secondly , a demonstrated controversy of fact emerging on the evidence in the application, to be resolved by findings of fact in the contemplated proceeding out of which a right to obtain identified relief is said to arise, will not answer a contention that there is reasonable cause to believe that the applicant may have a right to the relevant relief. However, the controversy of fact must demonstrate that first, the contended facts go beyond mere suspicion, assertion or conjecture and secondly, potential findings of fact in favour of the applicant support all elements of the cause of action that may give rise to the contended relief (see Minister for Health and Aged Care v Harrington Associates Ltd [1999] FCA 549 per Sackville J [28]; Paxus Services Limited v People Bank Pty Limited (1990) 99 ALR 728 per Burchett J (NG 670/1990); Hooper v Kirella (supra) [39]; Quanta Software International Pty Ltd v Computer Management Services Pty Ltd (2000) 175 ALR 536 at 541-2 per Sackville J [24]).


case_title: Paxus Services Limited v People Bank Pty Limited (1990) 99 ALR 728


case_title: Quanta Software International Pty Ltd v Computer Management Services Pty Ltd (2000) 175 ALR 536


case_text: The evidence does not establish actual knowledge of the terms of any contract between DDGCL and RTI nor any intention to interfere with the contract ( Australian Development Corporation Pty Ltd v White Constructions Ltd & Anor 189 ALR 266 per Handley JA at [89]) nor OMI's actual or constructive (in any analogous sense contemplated by Barnes v Addy (1874) LR 9 Ch App 244 per Lord Selborne at 251-252) knowledge of CMG's contended use of RTI's confidential information and thus the contended error on the part of the primary Judge is not made out.


case_title: Barnes v Addy (1874) LR 9 Ch App 244


case_text: In those cases of bilateral litigation between the originator and primary disclosor of confidential information on the one hand and a recipient from the originator on the other, a court exercising equitable jurisdiction will, independently of any contractual obligation, tort, fiduciary duty or rights derived from copyright, trade mark or patent legislation, grant relief against an actual or threatened abuse of confidential information provided the evidence establishes the well-known three elements derived from the authorities identified by Megarry J in Coco v A N Clark (Engineers) Ltd [1969] RPC 41 at 47 applying the observations of Lord Greene in Saltman Engineering Coy Ltd v Campbell Engineering Coy Ltd [1948] RPC 203 at 211 and 215 and Lord Denning in Seager v Copydex Limited [1967] RPC 349 at 366-367. 69 One of the three elements focuses upon whether the confidential information was imparted in circumstances 'importing an obligation of confidence' ( Coco v Clark at p 47) recognising that 'the notion of an obligation of conscience [arises] from the circumstances in or through which the information was communicated or obtained' ( Moorgate Tobacco v Philip Morris at p 438). The relief 'depends on the broad principle of equity that he who has received information in confidence shall not take unfair advantage of it' ( Seager v Copydex per Lord Denning at p 368).


case_text: In those cases of bilateral litigation between the originator and primary disclosor of confidential information on the one hand and a recipient from the originator on the other, a court exercising equitable jurisdiction will, independently of any contractual obligation, tort, fiduciary duty or rights derived from copyright, trade mark or patent legislation, grant relief against an actual or threatened abuse of confidential information provided the evidence establishes the well-known three elements derived from the authorities identified by Megarry J in Coco v A N Clark (Engineers) Ltd [1969] RPC 41 at 47 applying the observations of Lord Greene in Saltman Engineering Coy Ltd v Campbell Engineering Coy Ltd [1948] RPC 203 at 211 and 215 and Lord Denning in Seager v Copydex Limited [1967] RPC 349 at 366-367.


case_title: Seager v Copydex Limited [1967] RPC 349


case_text: The foundation of Equity's intervention is the exclusive jurisdiction to enforce an obligation of conscience arising out of the demonstrated circumstances ( Moorgate Tobacco Co Ltd v Philip Morris Ltd (No. 2) [1984] HCA 73 ; (1984) 156 CLR 414 per Deane J at 437 and 438. 69 One of the three elements focuses upon whether the confidential information was imparted in circumstances 'importing an obligation of confidence' ( Coco v Clark at p 47) recognising that 'the notion of an obligation of conscience [arises] from the circumstances in or through which the information was communicated or obtained' ( Moorgate Tobacco v Philip Morris at p 438). The relief 'depends on the broad principle of equity that he who has received information in confidence shall not take unfair advantage of it' ( Seager v Copydex per Lord Denning at p 368). 90 In seeking the court's intervention to restrain use of confidential information it is essential that the applicant demonstrate with precision the information said to be confidential and the content of use sought to be attached. Assertions of confidentiality at high levels of abstraction will not establish a basis for relief against a disclosee. In the case of an innocent third party who simply seeks reliance upon a contract struck without notice of a relationship of confidentiality between the primary disclosor and any other party or breach, the requirement for precision is even more acute. The starting point is the identification of the relevant confidential information ( Moorgate Tobacco Co Ltd v Philip Morris Ltd (No. 2) (supra) per Deane J at 438; Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) & Anor (1987) 14 FCR 434 per Gummow J at 443; O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 per Mason J at pp 326 328; Liberty Financial Pty Ltd & Anor v Scott & Anor (No. 4) [2005] VSC 26 ; (2005) 11 VR 629 per Harper J, [13], [35]; Pioneer Concrete Service Ltd v Galli (1985) VR 675 per Crockett, Murphy & Ormiston JJ at 711).


case_text: In the case, however, of an innocent third party acting bona fide and thus without notice, the circumstances which condition an obligation of conscience are much removed from the commercial intimacy of a bilateral relationship between the originator and primary disclosor and the originator's immediate recipient, importing that obligation. It seems to follow logically in the case of an innocent third party that the court will closely examine the contended circumstances that are said to warrant intervention beyond simply whether the third party has been put on notice and thus identify the 'matters which determine whether a duty of confidence has devolved' upon a third party ( Johns v Australian Securities Commission [1993] HCA 56 ; (1993) 178 CLR 408 at 460, per Gaudron J). The reasons of the primary Judge suggest that his Honour had in mind the notion that since an assessment of the circumstances in which OMI continues to acquire articles of manufacture said to embody RTI's confidential information includes acceptance of the position that OMI acted as an innocent third party for value pursuant to an arms-length contract, the 'relevant circumstances' of the present applicant, properly examined, do not give rise to an obligation of conscience in OMI, rather than a notion of simply applying a derivative proprietary rule that a bona fide third party for value can not be the subject of the court's intervention. 72 In Johns v Australian Securities Commission at 460, Gaudron J recognised that in Foster v Mountford & Rigby Ltd (1976) 29 FLR 233 at p 238, Muirhead J enjoined a publisher on an interlocutory basis from continuing to publish and distribute a book revealing, in breach of an obligation of confidence on the part of the author, sites and objects of deep religious and cultural significance to particular Aboriginal claimant groups, and in Wheatley v Bell [1982] 2 NSWLR 544 at p 550, Helsham CJ (in Equity) enjoined on an interlocutory basis innocent licensees (described as parties who 'have already been licensed or chosen, or engaged, or are either purchasers or potential purchasers') of a promotional business system from using that system notwithstanding that they had apparently paid contracted amounts to a disclosee who had failed to observe an obligation of confidence to the plaintiff disclosor. Gaudron J noted at p 460 that the law had not developed to a point of identifying in a 'definitive or comprehensive way' the matters which would determine whether a duty of confidence might arise in a third party. 74 The decision in Johns v Australian Securities Commission , on this aspect of the matter at least, turned on the basis that the information made available voluntarily to the relevant media organisations had become publicly available and the question of the innocence of the third parties, Australian Broadcasting Corporation and the Herald & Weekly Times Ltd, would require further determinations of questions of fact. The decision in Foster v Mountford arose out of an ex parte application and the commercial arrangements with the publisher were not examined. The decision in Fraser v Evans concerned the disclosure to an English national newspaper of aspects of a confidential report submitted by the plaintiff as a public relations consultant to the Greek Government. The case seemed not to involve acquisition of confidential information pursuant to an arms-length contract. Although the consultant had no standing to agitate a contended obligation on the part of the newspaper, and the information, in any event, was of such a nature that disclosure was in the public interest, the statement of general principle recognises that a third party who has not received confidential information in confidence might be restrained 'once he gets to know that it was originally given in confidence'. The decision in Wheatley v Bell adopted that expression of principle together with the observation of Professor Pettit ( Equity and the Law of Trusts , 3 rd ed (1974)) that a third party who knowingly obtains confidential information in breach of confidence or in any other fraudulent manner will be restrained from use and 'even if a man obtains the confidential information innocently, once he gets to know that it was originally given in confidence, he can be restrained from breaking that confidence', as the foundation for the interlocutory orders against the innocent licensees. 81 There is no doubt that the authorities recognise that an innocent third party thus acting bona fide may come into possession of confidential information of a primary disclosor either by reason of a disclosure in breach of an obligation of confidence by the disclosee owed to the primary disclosor or because an entity dealing with the third party may have a degree of interconnection with the initial recipient such that information has been disclosed to that entity in breach of an obligation of confidence and then disclosed to the third party; and, in principle, 'in some circumstances the restraint of an apprehended or continued breach of confidence may involve enjoining third parties' ( Breen v Williams [1995] HCA 63 ; (1996) 186 CLR 71 per Gummow J at p 129; see also, Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2002) 54 IPR 161 per Gummow and Hayne JJ [137] [2001] HCA 63 ; (2002) 185 ALR 1; and Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501 at 537 and 567; Johns v Australian Securities Commission (supra)). Although Gummow J in Breen v Williams at p 129 was emphasising that the assertion of a right to relief in respect of an obligation of confidence does not rest upon any species of proprietary right, his Honour also notes that the circumstances of disclosure to the third party condition whether such a party will be enjoined.


case_text: The same principles derived from the in personam jurisdiction apply to the position of third parties ( Best Australia Ltd & Ors v Aquagas Marketing Pty Ltd & Ors (1989) 13 IPR 600 at 603). Accordingly, the circumstances in which the third party received the confidential information require close attention to determine whether the conscience of the third party ought to be bound.