case_text: it happens, a case came into this Court in respect of eligibility for a compensation payment under the Internment Act, also by way of an appeal against a payment ineligibility decision of the Tribunal: Price v Repatriation Commission [2003] FCA 339 ; (2003) 127 FCR 274. The veteran's widow had made application under the Internment Act for a compensation payment. Though they concerned an event in the immediate aftermath of the surrender at Singapore by Lieutenant General Percival on 15 February 1942 of all members of Malaya Command, including the Australian 8 th Division, the critical facts of that case were similar in substance to the present. In contrast to the present, there was no direct evidence from the veteran as to the circumstances of his escape, only the imperfect recollection of his wife and relatives, the objective fact that he had reached Australia on a Dutch ship on 6 or 7 March 1942 and some research evidence and also opinion evidence (which the Tribunal accepted) from an historian as to the likelihood of a number of competing escape scenarios presented in the secondary evidence. On the facts found by the Tribunal, the applicant's husband had, before Japanese forces had physically taken him into custody, escaped from Singapore Harbour in a small vessel. In company with other soldiers, he succeeded in reaching Sumatra and was then evacuated from there to Australia on the Dutch ship. There was other, fragmentary evidence, not accepted by the Tribunal, that the veteran had either passed into Japanese captivity in Changi prison or escaped from a work party guarded by the Japanese near there not long after the surrendered troops had been marched to Changi on the morning of 17 February 1942. Before the Tribunal in Price the applicant had advanced a like submission as to the meaning of "interned" to that made on behalf of Mr Collett in the present case. In this Court in Price , the principal controversy was whether the Tribunal had misconceived and misapplied the benign evidentiary regime found in s 119(1)(h) of the Veterans' Entitlements Act 1986 (Cth) (VEA) with respect to the taking into account of the effects of the passage of time and absences or deficiencies in official records. The argument concerning the meaning of "interned" was not abandoned, although it does not appear from the report of the appeal that it was pressed with the same rigour as it was in the present case. Particularly in light of his conclusion that the Tribunal's findings of fact were not vitiated by an error in relation to s 119(1)(h) of the VEA, the judge who heard the appeal, Conti J, did not find it necessary to consider the alternative argument at length, although it would seem from the following passage, Price [2003] FCA 339 ; (2003) 127 FCR 274 at 288-289, [30] [32], that his Honour did not find it persuasive: It was next submitted by counsel for Mrs Price that in any event, the AAT misconstrued the statutory notion of "interned". I was referred to the Terms of the Singapore Surrender, which contained the following: "1. The British Army shall effect complete cessation of hostilities not later than 10 pm on February 15 (Nippon Time). British troops shall disarm themselves in their present positions no later than 11 pm." I was then referred to the following finding of the AAT: "The Tribunal notes that the march to Changi followed on 17 February 1942 and if so, if this order constituted being `confined to a place' in accordance with the definition of `interned' in section 3 of the Act, it does so, in relation to (Mr Price), at most until the afternoon of 17 February 1942..." Those observations were said to implicitly recognise that being in Singapore and subject to the Terms of Surrender brought the Veteran in any event within the statutory definition of "interned". That was because he became "confined to a place" by virtue of the above cited order to disarm (the s 3 definition of "interned", relevantly, is "confined in a... place"). Accordingly, it was submitted that the AAT's finding ... was incorrect. Underpinning the finding was of course the factual conclusion of the AAT that the Veteran never became a prisoner of war of the Japanese army in Singapore but escaped following the surrender and before capture. Accordingly, the reference in the Second Reading Speech to "Australians who were held captive by Japan during World War II" did not accommodate the circumstances of the Veteran of escape following the surrender and before capture", as found by the AAT. It is true that the AAT also cited that aspect of the Second Reading Speech in so far as it referred to "horrific conditions", "starvation", "brutal treatment" and "slave labour", but I do not think that the AAT thereby stipulated that suffering to any such extents were necessary elements in the preceding critical words "held captive". It cannot sensibly be the case that "the essential character" of the Veteran's time spent in Singapore, to adopt the expression used by Hill J in Kohn, was that of "held captive", given the implications of Mr O'Keefe's evidence as accepted by the AAT to the effect that he was not captured by the Japanese in any physical sense. For what it may matter, given the correctness of the AAT's factual finding to that effect in reliance upon [the historian's] expert testimony ..., it became perhaps unnecessary for the AAT to have undertaken recourse to s 15AB of the Interpretation Act for the purpose of confirming its factual finding that s ince the Veteran was never taken prisoner by the Japanese army, he was never "confined in a... place" within the statutory definition of "interned". That observation however is, strictly speaking, academic. [Emphasis added] This passage of his Honour's judgement must be read in the context of a particular passage in the Tribunal's reasons which (at 285, [23]) his Honour had earlier extracted in his judgement: The AAT concluded that "the essential character of the Veteran's time in Singapore after its fall is not one of being confined or restricted or held captive" for the purposes of the Internment Act, the expression "held captive" being (as just indicated) also used in the Second Reading Speech. The AAT accepted the fact of danger and suffering involved in the Veteran's escape from Singapore, but found that the s 3 definition of "interned" in the Internment Act did not extend to those who escaped back from Singapore to Australia, however bravely, and were not thus left behind in a prisoner of war camp such as Changi. The critical facts of the two cases are similar in substance in this sense. In each instance, the veteran concerned was a subordinate in a force surrendered to the enemy by a superior officer. Again in each instance and on the facts as respectively found, the veteran was in a designated surrender area as a consequence of a surrender to an enemy at the time when he escaped but had neither yet passed into a prisoner of war camp nor yet been held under guard by a member of the enemy forces. The words "held captive", much less "taken prisoner" or became a "prisoner of war", do not appear in the definition of "interned" as found in the Internment Act and the 2007 Budget Measures Act. Nor in either Act do they appear in the compensation eligibility provision itself. Within the expression, "interned by the military forces of an enemy State" in item 2(1)(b) of Sch 5 to the 2007 Budget Measures Act, the word "by", as each party submitted, plays a causative role. In resolving questions of causation, an understanding of how, after a surrender, the orders of an enemy force commander may permissibly be relayed to soldiers in the surrendered force may in some cases, and the present is one, be of assistance. That understanding is not, with respect, evident in the Tribunal's reasons. That said, it is otherwise apt to distract from the language chosen by Parliament to inquire as to whether the veteran was "held captive", "taken prisoner" or became a "prisoner of war". To dismiss the present appeal would certainly be consistent with the actual decision in Price but, with respect, the words emphasised in the passage quoted from the judgement in that case, which admittedly were obiter and responsive to an approach evident in the Tribunal's reasons in that case, seem to me impermissibly to direct an additional subject for compensation eligibility inquiry. I prefer therefore to approach the subject of eligibility afresh. Solely for the assistance it gives in relation to whether the enemy had a causative role to play on the facts as found, I turn to consider Mr Collett's status on and from the time of surrender. Mr Collett had, in my opinion, the status of a prisoner of war from the moment his unit was surrendered to the enemy by his superior officers. That is so even though he was not at that moment or when he left the surrender area under armed German guard. The position prevailing at the time under the Laws of War was explained authoritatively and at length by Dr T P Fry ED, barrister-at-law, in an article, "Legal Aspects of the Departure of Major General Gordon Bennett from Singapore" (1948-1951) 1 UQLJ 34. Dr Fry, who died too young aged 48 in 1952, had served in the Australian Army Legal Corps in the Middle East and Australia, attaining the rank of Lieutenant Colonel. He was a foundation lecturer at the T C Beirne School of Law at the University of Queensland. Before taking up that appointment he had obtained legal qualifications at Oxford, The Academy of International Law at The Hague and finally at Harvard. At the latter university, he was noted as 'exceedingly industrious and able', and was there awarded a doctorate of juridical science (1931): Ian Carnell, 'Fry, Thomas Penberthy (1904 - 1952)', Australian Dictionary of Biography , Volume 14, Melbourne University Press, 1996, p. 231; online reference: http://www.adb.online.anu.edu.au/biogs/A140259b.htm?hilite=fry . Section 15AB of the Acts Interpretation Act 1901 (Cth) permits recourse to secondary materials to confirm the meaning of an Act as well as to resolve any ambiguity. Regard to some parts of the explanation in the explanatory memorandum circulated in respect of what became the 2007 Budget Measures Act are apt to distract in a similar way as did the explanatory memorandum for the Internment Act in Price . Under the introductory heading "Outline" it is materially stated in the 2007 Budget Measures Bill explanatory memorandum that, "The third measure provides a one-off compensation payment to certain veteran and civilian prisoners of war interned in Europe during World War Two or their surviving widows or widowers" (Emphasis added). Much lies behind that adjective "certain", for not every person having the status of prisoner of war is made eligible for the one-off compensation payment. Later, at page 16 of the explanatory memorandum, the following appears: Summary This Schedule gives effect to the 2007 Budget measure that will provide for a once-only compensation payment to veteran and civilian prisoners of war interned by enemy forces in Europe during World War Two, or their surviving widows or widowers. Background The Government has previously made once-only compensation payments to persons interned by the Japanese and the North Koreans. Prisoners of war of enemy forces in Europe also experienced extreme brutality and starvation and also suffered from some of the same diseases that affected prisoners of war of the Japanese. The repeated, unqualified references to "prisoners of war" will be noted. Only in the heading of this part of the explanatory memorandum does "certain" appear and there it is used to qualify "internment", not "prisoner". I do not gain any assistance from the explanatory memorandum. With respect, the Tribunal seems at times to have used "confined" in a rather loose way in describing (at para 16) Mr Collett's position in the two hours in which he was located in the surrender area. On one reading of that paragraph, and this was the reading advanced on behalf of Mr Collett, the Tribunal has concluded that Mr Collett was, in terms of the definition, "confined in" the surrender area. Insofar as the Commission disputed this reading of the paragraph, I reject that submission. What the Tribunal has done is to conclude that, though "confined in" that area, he was not confined "by" the enemy. The Tribunal's statement, "The absence of such confinement is demonstrated by his capacity to retain possession of his rifle and ammunition for some two hours and then to leave the area and go to the beach." is not, as the Commission submitted, indicative of a conclusion that Mr Collett was not "confined". Rather, having regard to the sentence which preceded it, it is a conclusion that that the "confinement" was not "by" the enemy. This demonstrates a misconception by the Tribunal not just of the meaning of "confined in ... other place" but also, as earlier noted, as to how an enemy may convey orders to a surrendered foe. The order relayed to Mr Collett to go to the surrender area was one given "by" the enemy but he was not "interned" there. The correct conclusion in law on the facts found was that the surrender area was not an "other place". The Commission succinctly explained why in its written submission: In this case, the other place where [Mr Collett] spent 2 hours, before heading to the beach to the dinghy was the "shore of mainland Greece"(Transcript page 30, lines 30 to 31), a place which does not, without more (for example, evidence of some kind of physical barrier) fit within the genus of the specific places mentioned [in paragraph (a) of the definition]. On those facts, too, the physical presence of the enemy did not supply the restriction on freedom of movement that the "other place" itself otherwise did not. As is not unknown in the pursuit phase of war, having taken its surrender the advance elements of the German forces were bypassing this surrendered unit. As the subsequent formal recording of the unit's surrendering officers as prisoners of war necessarily inferentially confirms, physical restriction by follow up forces occurred later. Under then prevailing Australian military law, a soldier in Mr Collett's circumstances was under a duty, if reasonably possible, to escape and to rejoin his unit. At the time, the scheme of the Defence Act 1903 (Cth), as found in the former s 55, was that, while on active service, members of the Australian Army were subject to the Army Act 1881 (UK) (Army Act 1881) insofar as that Act was not inconsistent with the Defence Act or not modified or adapted by subordinate legislation. At the time, the duty was found in s 5 of the Army Act 1881 as so applied. The application of that Act to the Australian Army has long ceased but the duty remains: see now s 19 Defence Force Discipline Act 1982 (Cth). The Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 , made part of our domestic law by the Geneva Conventions Act 1957 (Cth), is predicated upon the continued existence of such a duty. The conventional wisdom, to which Dr Fry alludes in his article, is that the best time for a prisoner of war to escape is often soon after attaining that status. It is often then that the "fog of war" is most dense. Mr Collett's experience highlights just that. In escaping and rejoining his unit he conspicuously and commendably did his duty. That does not mean that, immediately beforehand, he met what decades later became the eligibility criteria for a compensation payment under the 2007 Budget Measures Act. The actual decision of the Tribunal was the only one open in law on the facts which it found. Albeit for reasons which differ in detail from those given by the Tribunal, the appeal must be dismissed. There will be no order as to costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 19 June 2009 Counsel for the Applicant: Mr A Harding Solicitor for the Applicant: Terrence O'Connor Solicitor Counsel for the Respondent: Ms H Bowskill Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 12 June 2009 Date of Judgment: 19 June 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/667.html


case_outcome: cited

case_text: Mr David Clark and his wife, Helen Clark, are taxpayers who have applied to the Federal Court of Australia (Applications 500/2006 and 501/2006 respectively) in the Court's original jurisdiction conferred by s 14ZZ of the Taxation Administration Act 1953 (Cth) by way of an appeal from a decision of the Commissioner of Taxation made on 27 October 2006 to disallow objections to an amended assessment issued to each taxpayer on 25 November 2005 for the year ending 30 June 2001. Those applications involve a number of questions including whether each taxpayer is entitled to take advantage of capital losses in the Carringbush Trust by reason of the disposal of the Rothwells shares so as to offset capital gains derived by the trust from other projects ( Clark v Commissioner of Taxation [2007] FCA 1426). In those proceedings, the Commissioner of Taxation takes the position that s 468(1) of the Corporations Act renders the disposition void (among a range of other arguments) with the result that no capital loss arises in any event. 16 It is not contended by the Commissioner that the value of the shares at the date of sale was anything other than $1.00. 17 On 30 October 2007, the solicitors for the plaintiffs wrote to the Australian Securities Investments Commission ('ASIC') advising of this proposed application for an order under s 468(1) in relation to the Rothwells shares the subject of the 26 May 1993 transaction. ASIC took the position that it would not be necessary, in its view, to secure reinstatement of Rothwells for the purpose of obtaining an order under s 468(1) and that while shares in Rothwells no longer exist by reason of the winding up and subsequent deregistration of the company, the deregistration ought not to prevent the Court making an order to validate the transaction that occurred when the company was in liquidation. On 20 November 2007, the application and supporting material was served upon ASIC and Mr Ian Ferrier, the former liquidator of Rothwells.


case_text: There are many authorities that deal with the principles guiding the exercise of the discretion under s 468(1) both as to a disposition of property of the company made after the commencement of the winding up and any transfer of shares made after the commencement of the winding up, although the circumstances of any case or group of cases are not to be treated as prescriptive of the discretion which is conferred in broad terms and is 'at large'. However, ordinarily the discretion will not be exercised in favour of an order unless the Court is satisfied that the order serves either the interests of the company or its creditors. A recent approach to the making of an order under the section can be seen in Australian Securities and Investments Commission v Green Pacific Energy Limited (In Liquidation) [2007] FCA 1552 per Emmett J (26 September 2007). In that case, a transfer of shares was approved under s 468(1) of the Corporations Act as a necessary element of a Deed of Company Arrangement providing for a substantially greater payment to creditors than would occur in a liquidation. 24 The considerations that derive from an assessment of whether a 'disposition of property' of the company ought to be approved are quite different from those immediately relevant to a transfer of shares especially where the shares are fully paid and thus no calls can or will be made upon the shareholder. 25 As to share transfers , the principles seem to be these.


case_title: Rudge v Bowman , Law Rep 3 Q.B. 689

case_text: As between the parties to a transfer and as regards the liability of one to the other, (that is, the inter-parties position) the transaction is not affected by [the section] ( Rudge v Bowman , Law Rep 3 Q.B. 689). The transfer is void 'so far as regards any effect to be given to it by the company ' ( In Re Onward v Building Society (1891) 2 Q.B. 463 per Lord Esher at p 475). The parties might choose to make a contract and it 'may be good as between themselves, though if either of them desires that any effect should be given to it by the company, the Act does apply' ( Onward Building Society , per Lord Esher at p 475). When the question is one of transfer of the shares after the commencement of the winding up, the question is 'would it be beneficial to the company' ( Onward Building Society per Bowan LJ at p 481) and would it 'benefit the creditors' ( Onward Building Society per Bowan LJ at p 482). The general scheme of the provision is that 'as the tree falls so it must lie, unless the Court chooses to alter the existing state of things' ( Onward Building Society per Bowan LJ at p 482). The Court will do so if it 'would be of some benefit to the company or those interested in its assets, and that it (the Court) would not so exercise its discretion unless for very strong reasons' ( Onward Building Society per Kay LJ at p 483). Although Kay LJ makes reference to a demonstrated benefit to 'those interested in [the company's] assets', it seems clear that the reference is not one to the interest of an investor/shareholder. Kay LJ clearly had in mind a reference to the creditors of the company when using that phrase ( Onward Building Society per Kay LJ at p 484). In that particular case, no benefit arose out of the proposed transfer of shares to a buyer in favour of either the company or its creditors as a result of which the Court refused to exercise the discretion to avoid the transfer being rendered void.


case_title: In Re Onward v Building Society (1891) 2 Q.B. 463


case_text: The section confers upon the Court a 'wide general discretion which is not to be limited by any attempted classification of those cases which do, and those which do not, fall within them' ( Re Atlas Truck Service Pty Ltd 4 ACTR 19 per Fox J at p 20). The discretion is 'entirely at large' ( Re Atlas Truck Service Pty Ltd ; Tellsa Furniture Pty Ltd (in Liquidation) v Glenave Nominees Pty Ltd (1987) 9 NSWLR per Hope, Mahoney and Priestly JJA; Jardio Holdings Pty Ltd v Dorcon Constructions Pty Ltd [1984] FCA 247 ; (1984) 3 FCR 311 per Woodward, Neaves and Beaumont JJ).


case_title: Tellsa Furniture Pty Ltd (in Liquidation) v Glenave Nominees Pty Ltd (1987) 9 NSWLR


case_text: The section confers upon the Court a 'wide general discretion which is not to be limited by any attempted classification of those cases which do, and those which do not, fall within them' ( Re Atlas Truck Service Pty Ltd 4 ACTR 19 per Fox J at p 20). The discretion is 'entirely at large' ( Re Atlas Truck Service Pty Ltd ; Tellsa Furniture Pty Ltd (in Liquidation) v Glenave Nominees Pty Ltd (1987) 9 NSWLR per Hope, Mahoney and Priestly JJA; Jardio Holdings Pty Ltd v Dorcon Constructions Pty Ltd [1984] FCA 247 ; (1984) 3 FCR 311 per Woodward, Neaves and Beaumont JJ). 28 In Jardio , the Court in considering an application concerning the granting of an equitable mortgage after the date of presentation of a winding up petition (rather than a transfer of shares) noted that 'special circumstances' may justify the intervention of the Court to approve the transaction 'but only as a means to an end; and that end is the promotion of the interests of the creditors as a whole' ( Jardio , per Woodward, Neaves and Beaumont JJ at p 317). The Court regarded the overriding 'inquiry' required by s 227(1) of the Companies Act (NT) (the equivalent of s 468(1) of the Corporations Act ), as 'essentially a commercial or economic one, calling for a balancing of the anticipated net gains or losses from the transaction for which approval is sought' ( Jardio , per the Court at p 317). Moreover, the 'merits' of the transaction 'should be tested at the date of entry into the transaction sought to be validated' ( Jardio , per the Court at p 320). 29 It seems to me that in assessing the merits of the approval of a transfer of shares, the Court should also adopt an inquiry that is 'essentially a commercial or economic one' although the interests affected will not just be the company or the creditors. In assessing the net gains and losses from the perspective of the company and the creditors, there is no prejudice or loss to either, nor any benefit, by reason of the disposal on 26 May 1993. The position is, in that sense, neutral. If the disposal of the shares has occurred with no prejudice to the company or the creditors, why should the vendor of the shares be deprived of the validity of a transfer of shares to a buyer? If the prohibition upon transfer is a prohibition inter-parties upon a valid disposal, why should a vendor be deprived of a valid disposition when no prejudice is suffered by the company or the creditors?


case_text: In Backoffice Investments v Campbell [2007] NSWSC 161 ; 61 ACSR 144 , Bergin J was required to consider whether in the context of a finding of oppressive conduct by one shareholder (Campbell) on the part of the company (Healthy Water (NSW) Pty Ltd) against another shareholder (Backoffice), an order ought to be made under s 468(1) (a provisional liquidator having been appointed to the company) validating the transfer of Backoffice's share to Campbell as part of a remedial order that Campbell acquire (pursuant to s 233(1)(d) of the Corporations Act ), Backoffice's share at a particular valuation. The Court so ordered as an incident of relieving Backoffice of Campbell's oppressive conduct, not on the footing that the order served only the interests of the company but, principally, on the footing that the interest of the oppressed shareholder would be served by making an order under s 468(1) in connection with the share transfer, as a necessary incident of the remedial orders. 31 In this case, I can see no reason why the vendor of the shares on 26 May 1993 nor the purchaser ought to be deprived of the validity of the disposition by reason of s 468(1) of the Corporations Act if that is what the prohibition upon 'transfer' under s 468(1) effects, as there is no prejudice to the company or its creditors; all shares at the relevant date were fully paid; and although served with the present application, neither ASIC nor the former liquidator of Rothwells nor the Commissioner has appeared before the Court to contradict the orders sought by the plaintiffs. 32 Accordingly, I propose to make order that the transfer by Carringbush Pty Ltd to Carringbush Corporation Pty Ltd on 26 May 1993 of 949,583 12.5% cumulative redeemable convertible preference shares of $1.75 in Rothwells Limited, each fully paid, and 474,791 ordinary shares of $1.75 in Rothwells Limited, each fully paid, is not rendered void by operation of s 468(1) of the Corporations Act 2001 (Cth). 33 I further order that the Plaintiffs and the former liquidators of Rothwells Limited have liberty to apply. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate: Dated: 10 April 2008 Counsel for the Applicant: Mr M L Robertson Solicitor for the Applicant: Damien Bourke & Associates Counsel for the Respondent: No appearance by any of the Australian Securities and Investments Commission, the Commissioner of Taxation or the former liquidators of Rothwells Limited Solicitor for the Respondent: No appearance by any of the Australian Securities and Investments Commission, the Commissioner of Taxation or the former liquidators of Rothwells Limited Date of Hearing: 10 December 2007 Date of Judgment: 10 April 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/474.html


case_text: The operation of the reasonable hypothesis mechanism and the reverse onus of proof under the Act are explained in Repatriation Commission v Deledio [1998] FCA 391 ; (1998) 83 FCR 82 at 97-98. 3 The hypothesis said to be raised by Mr Goodwin's claim for the purposes of s 120A of the Act relied on the Statement of Principles Concerning Alcohol Dependence or Alcohol Abuse SoP No 76 of 1998. It was that (i) "severe stressors" related to his service (ii) caused alcohol dependence or abuse which (iii) caused the cirrhosis which (iv) caused the liver cancer. Steps (iii) and (iv) were not in dispute. 4 There was an alternative hypothesis, relying on SoPs No 1 of 2000 and No 101 of 2007, that the stressors caused generalized anxiety disorder which in turn caused the alcohol dependence or abuse and the subsequent cirrhosis and cancer. This was rejected by the Tribunal and was not relied on by the respondent on the present appeal. 10 The Tribunal was required to follow the approach explained by the Full Court in Deledio at 97-98: 1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail. 2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the [Repatriation Medical] Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail. 3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail. 4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved. 11 Relevantly for present purposes (ie ignoring the anxiety disorder based hypothesis which is no longer relied on) the Tribunal at [65] found that a reasonable hypothesis relating to a causal connexion between Mr Goodwin's operational service had been raised, namely that a stressor of sufficient severity might have resulted in the worsening of pre-existing alcohol abuse or dependence. (Emphasis in original.) 12 The Tribunal said at [66], after referring to a number of medical reports, that it was unable to find in the reported histories the necessary criteria for alcohol dependence "and thus (found) that Mr Goodwin suffered from alcohol abuse ". (Emphasis in original.) 16 In my opinion, the Tribunal erred by failing to form an opinion whether the alcohol abuse hypothesis fitted, or was consistent with, SoP No 76 of 1998 ( Deledio step 3). The Tribunal did not identify, in the material before it, necessary elements which the SoP required. 17 Although there was ample material as to Mr Goodwin's heavy drinking while in Vietnam, the diagnostic criteria for "alcohol abuse" in cl 2(b) of the SoP requires very specific manifestations (as set out at [5] above): "recurrent" use resulting in failure to fulfil major role obligations or in physically hazardous situations, or recurrent alcohol-related legal problems or social or interpersonal problems. There was no attempt to identify such manifestations in the material. 18 Further, the Tribunal did not attempt to identify the date of clinical onset or clinical worsening of alcohol abuse so as to see whether the same occurred within two years of Mr Goodwin's experiencing the alleged stressors. This was a factor which had to exist before it could be said that a reasonable hypothesis had been raised connecting the alcohol abuse with the circumstances of Mr Goodwin's service: cl 5(b) and (d). 22 Since this matter will have to be remitted, I do not think I should say anything further about the merits of the events alleged to constitute severe stressors. At Deledio step 3, a fact finding exercise is not involved (in contrast to step 4). 23 The appeal will be allowed, the decision of the Tribunal set aside and the matter remitted to the Tribunal differently constituted, for further hearing and determination according to law. In its notice of appeal the Commission did not expressly seek an order for costs. Since it is not suggested that the respondent was responsible for the errors of the Tribunal, I do not propose to make any order for costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 5 August 2008 Counsel for the Applicant: J K Macdonnell Solicitors for the Applicant: Australian Government Solicitor Counsel for the Respondent: D de Marchi Solicitors for the Respondent: De Marchi & Associates Date of Hearing: 23 July 2008 Date of Judgment: 5 August 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1132.html


case_text: The Tribunal then at [68] posed for itself the question whether the alcohol abuse "resulted from the objective/subjective effect of a severe stressor that might evoke intense fear ( Repatriation Commission v Stoddart [2003] FCAFC 300 ; (2003) 134 FCR 392)". It said at [69] that the "relevant factors" were those in cl 5 (a), (b) and (d). (Clause 5(b) and (d) are quoted at [6] above; cl 5(a) refers to suffering from a psychiatric disorder at the time of onset of alcohol abuse as already mentioned, this is no longer relevant). The Tribunal said that "Mr Goodwin met these criteria". 15 After rejecting the anxiety disorder hypothesis the Tribunal said (all emphasised words are in the original): 72. The Tribunal finds that the stressors nominated by Mr Goodwin do not meet the severity delineated in DSM-IV [a diagnostic manual] and adopted by SoP No 1 of 2000, concerning GAD [generalised anxiety disorder], but do meet the requirements of Factor 5(b) of SoP No 76 of 1998 which states: ... 5(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or ... 5(d) experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse;... 73. This SoP defines experiencing a severe stressor in the following terms: means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person's or other people's physical integrity, which event or events might evoke intense fear, helplessness or horror [emphasis added]. 74. The Tribunal considers that the inclusion of the word might in this definition lowers the standard of proof. Might is defined in the Short [sic] Oxford Dictionary (Third Edition), amongst other definitions, as expressing a possibility. Both Dr Walton and Dr D'Ortenzio have related such a possibility and Dr Percival qualified it as a probability. The use of the term might in the Tribunal's opinion shifts the weight in the assessment in the objective/subjective analyses (Stoddart) of claimed stressors toward the subjective analysis; and in light of the psychiatric opinion, the Tribunal finds that the stressors described and in particular the bar theft accusation and search, do meet the SoP's criteria. 75. The second of the four elements of this complex hypotheses argued in the alternative to the first is upheld; and as a result the remaining two elements flow directly from this finding; resulting in the decision that Mr Goodwin's death was causally related to his operational service... 20 The construction which Full Court decisions have placed on this expression in the context of the SoP can be summarized as follows: 1. The event must be one which (i) the person actually perceived as involving actual or threatened death or serious injury and (ii) which could reasonably be so perceived by someone with that person's knowledge and experience. There are both subjective and objective elements: Repatriation Commission v Stoddart [2003] FCAFC 300 ; (2003) 134 FCR 392 at [22] , [30]. 2. It is sufficient if a threat is (actually and reasonably) perceived, notwithstanding that there was in fact no threat: Stoddart at [31]. 3. To be "confronted" with the event the person does not necessarily have to be physically present: Woodward v Repatriation Commission [2003] FCAFC 160 ; (2003) 131 FCR 473 at [123] . 4. "Risk" is used in the sense of "an indication of probable evil to come: something that gives indication of causing evil or harm": Stoddart at [36]. 21 In the passage at [74] of its reasons, quoted at [15] above, the Tribunal misunderstood the term. The use of the word "might" has nothing to do with "shift(ing) the weight ... towards the subjective analysis". The word "might" accommodates the possibility that a person of particular fortitude might be confronted with an event involving, for example, threat of death, but does not react with "intense (or any) fear, helplessness or horror". Such a person would be, literally, fearless. Nevertheless, such an event might evoke the actual, and objectively reasonable, intense fear etc in an ordinary person. At the other extreme, the definition excludes an event which (objectively) does not have the possibility of evoking the reaction of intense fear etc. The definition thus sets out the limits within which the Stoddart subjective and objective tests are to be satisfied. The concluding part of the definition ("which event or events...") is setting out the objective criteria which the event must satisfy. Of course, the event must also be one which the person (subjectively) perceived as involving a threat of death etc and which a reasonable person could (objectively) so perceive.


case_title: Woodward v Repatriation Commission (2003) [2003] FCAFC 160 ; (2003) 131 FCR 473

case_text: The construction which Full Court decisions have placed on this expression in the context of the SoP can be summarized as follows: 1. The event must be one which (i) the person actually perceived as involving actual or threatened death or serious injury and (ii) which could reasonably be so perceived by someone with that person's knowledge and experience. There are both subjective and objective elements: Repatriation Commission v Stoddart [2003] FCAFC 300 ; (2003) 134 FCR 392 at [22] , [30]. 2. It is sufficient if a threat is (actually and reasonably) perceived, notwithstanding that there was in fact no threat: Stoddart at [31]. 3. To be "confronted" with the event the person does not necessarily have to be physically present: Woodward v Repatriation Commission [2003] FCAFC 160 ; (2003) 131 FCR 473 at [123] . 4. "Risk" is used in the sense of "an indication of probable evil to come: something that gives indication of causing evil or harm": Stoddart at [36].


case_outcome: discussed

case_text: also make mention that whilst there may be a reluctance on the part of courts to make interlocutory mandatory orders, including orders involving employees to return to work, such a reluctance may not apply to conduct which is prima facie in breach of the Act: Amcor Packaging (Australia) Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2002] FCA 127. The question then arises as to what relief to provide in the circumstances. The position arising in this proceeding is different from the position which confronted Merkel J in the Amcor Packaging (Australia) Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2002] FCA 127. In this proceeding there is an application made to enforce the Order of Commissioner Eames, more particularly the order in par 4.3 set out above. I do not repeat the observations of Merkel J in relation to the situation where only the union is a party and the relevant employees are not joined in the proceeding. As he indicated, sometimes the appropriate course is to seek enforcement orders against the employees and not make orders against a union that it require, order or direct the employees to return to work. However, in this proceeding application is made to actually enforce the order of Commissioner Eames, in particular the order that the AMWU must take all reasonable steps available under its Rules to ensure the relevant members comply with the Order and not engage in industrial action. This part of the Order is one the respondent itself must comply with under s 496(10) and can be enforced under s 496(12). I do not consider that all reasonable steps have been taken by the respondent to comply with the Order. I am mindful that the respondent has urged and encouraged certain action on behalf of its members. However, it is apparent that the delegates have not adhered to that urging or encouragement and, in fact, there has been a period of industrial action extending now more than a short period of time and over a larger area than just the Preston Site. It is my view that further action under the Rules of the respondent could be reasonably availed of by the respondent. In these instances I would direct the respondent to take all reasonable steps that are available under its Rules to ensure the relevant members comply with the Order of Mr Eames. In light of these conclusions I propose to order, subject to hearing counsel as to any matters that may arise out of the proposed orders and their operation, the following: 1. Until trial or further order, the respondent (whether by any of its officers, delegates, employees, agents or howsoever otherwise): 1.1 be restrained from directing, organising, inducing, encouraging, procuring or authorising any or all of the employees of the applicant who work at its site at 29 Bell Street, Preston, in the State of Victoria ('the Employees') to stop work or fail to work other than in accordance with Amcor Flexibles Australasia (Preston) Enterprise Agreement 2005 ('the Preston Agreement'); 1.2 be required to take any and all steps reasonably available to it under its rules to ensure that the Employees: 1.2.1 cease and desist from engaging in industrial action or failing to work otherwise than in accordance with the Preston Agreement; and 1.2.2 make themselves available for work and perform work as the applicant may reasonably require; and 1.3 without in any way limiting subparagraph 1.2 above, be required to take all reasonable steps available to it to direct its delegates and members employed at the Preston Site, both orally, by holding meetings, and in writing, to list any and all bans, limitations or restrictions on the performance of work at the Preston Site, including ceasing any and all strike action. 2. The proceeding be listed for directions on a date to be fixed. 3. Costs be reserved. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate: Dated: 22 September 2006 Counsel for the Applicant: Mr N Green QC with Mr J Snaden Solicitor for the Applicant: Trindale Farr & Pill Counsel for the Respondent: Ms A Gooley Solicitor for the Respondent: Maurice Blackburn Cashman Date of Hearing: 10 and 11 August 2006 Date of Judgment: 11 August 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1265.html


case_text: an issue which arises in the context of interim relief in industrial law matters is that the interim relief could be in effect the grant of final relief. On the other hand, it is also common for the refusal to grant interim relief to be a refusal to grant final relief in actual fact. In Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (unreported, Madgwick J, 17 November 1998) the AIRC had made an order under s 127(1) of the Act that a proposed national stoppage not occur. In that case the refusal to grant interim relief to enforce the order effectively meant the refusal for final relief to enforce the order as the national stoppage was to take place before the final hearing; See too Transfield Construction Pty Ltd v Automotive Food, Metal, Engineering, Printing and Kindred Industries Union [2002] FCA 1413.


case_text: any interlocutory injunction is granted, the Court must be satisfied that there is both a serious question to be tried in the principal proceeding and that the balance of convenience favours the grant of an injunction: see, e.g. Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618 at 621; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1; Epitoma Pty Ltd v Australasian Meat Industry Employees Union (1984) 3 FCR 55.


case_text: two matters are not to be considered in isolation from each other and the strengths or weaknesses of the claim will have a bearing on what is required by the balance of convenience: see, e.g. Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 at 472 ('Bullock') . A particular issue arises in this case where there is a doubtful claim, which, nevertheless, raises a serious question to be tried. Here the claim may, nevertheless, still attract interlocutory relief if there is a marked balance of convenience in favour of that claim: see Mobileworld Operating Pty Ltd v Telstra Corporation Ltd [2005] FCA 1365 at [20] per Weinberg J ('Mobileworld') citing Bullock at 472. Further, it is to be remembered that the threshold for a serious question to be tried is not particularly onerous. As Weinberg J said in Mobileworld at [23]: Sometimes, on an application for interlocutory relief, a court is sufficiently able, on the evidence before it, to reach a conclusion as to particular facts or matters in dispute. However, it must be remembered that any such conclusion will be provisional, and by no means necessarily the same as that which is subsequently reached at the final hearing. The degree to which a court is prepared to investigate disputes of fact depends on their difficulty and on the other circumstances in question, and particularly on the extent of urgency or prospective hardship involved: ICF Spry, The Principles of Equitable Remedies , (6th ed, 2001) at 466.'


case_title: Epitoma Pty Ltd v Australasian Meat Industry Employees Union (1984) 3 FCR 55


case_outcome: considered

case_text: particular issue arises in this case where there is a doubtful claim, which, nevertheless, raises a serious question to be tried. Here the claim may, nevertheless, still attract interlocutory relief if there is a marked balance of convenience in favour of that claim: see Mobileworld Operating Pty Ltd v Telstra Corporation Ltd [2005] FCA 1365 at [20] per Weinberg J ('Mobileworld') citing Bullock at 472. Further, it is to be remembered that the threshold for a serious question to be tried is not particularly onerous. As Weinberg J said in Mobileworld at [23]: Sometimes, on an application for interlocutory relief, a court is sufficiently able, on the evidence before it, to reach a conclusion as to particular facts or matters in dispute. However, it must be remembered that any such conclusion will be provisional, and by no means necessarily the same as that which is subsequently reached at the final hearing. The degree to which a court is prepared to investigate disputes of fact depends on their difficulty and on the other circumstances in question, and particularly on the extent of urgency or prospective hardship involved: ICF Spry, The Principles of Equitable Remedies , (6th ed, 2001) at 466.'


case_title: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1


case_title: Transfield Construction Pty Ltd v Automotive Food, Metal, Engineering, Printing and Kindred Industries Union [2002] FCA 1413


case_outcome: applied

case_text: The refusal of the application by the Federal Magistrates Court is said by the Appellant to be " not fair " . But it is not the task of the Federal Magistrate to determine that which he subjectively may think is either " fair " or " not fair ". His task is the confined task conferred by s 476 of the Migration Act 1958 (Cth). It is considered important to constantly recall that even the task of judicial review, unconstrained by notions of jurisdictional error, is not concerned with correcting " administrative injustice ": Attorney-General for the State of New South Wales v Quin [1990] HCA 21 ; (1990) 170 CLR 1. Brennan J there observed at 35 6: The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case. What is required by procedural fairness is a fair hearing, not a fair outcome: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [25] , [2006] HCA 63 ; 228 CLR 152 at 160. " The relevant question ", Jacobson J has observed, " is about the Tribunal's processes, not its actual decision ": SZLVN v Minister for Immigration & Citizenship [2008] FCA 1301 at [18] .


case_text: Even if an argument as to bias had not been raised before the Federal Magistrate, leave to now raise such an argument on appeal would have been refused: cf SZGWN v Minister for Immigration and Citizenship [2008] FCA 238 at [120] , 103 ALD 144 at 174 per Gilmour J. Leave may be granted where it is expedient in the interests of justice to do so. But it is well accepted that a " reasonable apprehension " of bias must be " firmly established ": Re JRL, Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342 at 352 per Mason J. The circumstances more relevant to an application in respect to proceedings before the Refugee Review Tribunal, where proceedings are heard in private, has been addressed by Gleeson CJ, Gaudron and Gummow JJ as follows in Re Refugee Review Tribunal, Ex parte H [2001] HCA 28 , 179 ALR 425: [27] The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the tribunal, proceedings are held in private. [28] Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.


case_outcome: followed

case_title: Re Refugee Review Tribunal, Ex parte H [2001] HCA 28 , 179 ALR 425


case_text: But such is not the present case. The materials now before the Court have been reviewed and provide no discernible basis upon which any suggestion as to bias on the part of the Tribunal could be sustained. The reasons for decision expose a careful account of the evidence being presented and a careful attempt to ensure that such inconsistencies as were apparent in the now Appellant's evidence were brought to his attention. Two hearings were afforded to the now Appellant. Moreover, it is seldom the case that a reasonable apprehension of bias can be established merely by reference to the reasons for decision: SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 at [16] per Tamberlin, Mansfield and Jacobson JJ. 14 In the present appeal it would not be in the interests of justice to now allow an argument as to bias on the part of the Tribunal to be advanced. It is an argument without substance. 15 The basis upon which bias was otherwise being advanced was not further explained.


case_title: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 , 228 CLR 152


case_title: SZGWN v Minister for Immigration and Citizenship [2008] FCA 238 , 103 ALD 144


case_text: On 29 August 2008, the Federal Magistrates Court dismissed an application seeking to review the decision of the Tribunal: SZLVI v Minister for Immigration [2008] FMCA 1206. The Appellant now appeals to this Court. 4 The Appellant appeared before this Court unrepresented, although he did have the benefit of an interpreter. He first appeared on 26 November 2008. But on that occasion it emerged -- perhaps surprisingly -- that he had not read either the decision of the Federal Magistrates Court or his Notice of Appeal . The Notice of Appeal was apparently prepared by a migration agent. Serious questions necessarily arise in circumstances where a migration agent has -- at least on the account given by the present Appellant -- neither informed him as to why he lost before the Federal Magistrates Court, nor the grounds upon which the decision of the Federal Magistrate may be challenged on appeal. How an appellant can make an informed decision and give instructions as to whether or not he wishes to appeal in the absence of at least minimal explanation being provided to him, remained unexplained. A decision to invoke the appellate jurisdiction of this Court cannot be entrusted to migration agents alone and without instructions. The difficulties confronting unrepresented litigants who do not speak English are not to be compounded by a failure to keep them informed or explain to them the steps being taken in their own applications for a Protection Visa. Such fundamental difficulties are noted so that the Respondent Minister or his Department may take such steps as they consider appropriate. 5 For the purposes of the present appeal, the difficulties initially confronting the Appellant were addressed by adjourning the appeal until 28 November 2008 in order to ensure that the Federal Magistrate's decision and the Notice of Appeal could be translated. On 28 November 2008, the Appellant again appeared with an interpreter and made oral submissions. 18 The final Ground of Appeal must also be rejected. The reasons for decision of the Federal Magistrate discloses that he reviewed the reasons for decision of the Refugee Review Tribunal and the procedure it had followed. He referred to the inconsistencies as found by the Tribunal in the now Appellant's account and considered the terms of the letter written to the now Appellant explaining what were perceived to be inconsistencies and the significance that the Tribunal may have attached to those inconsistencies. Indeed, the Federal Magistrate stated in conclusion that he considered there was " an obligation on the Court to independently consider whether argument based on material before the Court leads to a jurisdictional error ": [2008] FMCA 1206 at [24] . That question was answered in the negative. 19 No reason emerges from the reasons for decision of the Federal Magistrate to conclude that he did not " reasonably " consider the application before him. 20 No reference may be found expressly in the reasons of the Federal Magistrate which refers to the risk to which the now Appellant would be exposed if he were to be returned to China. In the absence of any submissions being advanced in respect to that risk, and there apparently were none, the failure to address a submission or an aspect of the evidence does not expose error. Moreover, the Federal Magistrate referred to the findings of the Tribunal as to credibility. That was a sufficient basis in itself for a rejection of the application by the Federal Magistrates Court. The reference to " they " in the final Ground of Appeal is unclear. If it is a reference to the Tribunal, the Tribunal did in fact refer to the risk asserted by the now Appellant if he was to return to China; if it is a reference to the Federal Magistrates Court, the failure to refer to the risk exposes no appellable error.


case_title: SZLVN v Minister for Immigration & Citizenship [2008] FCA 1301


case_text: Although instances in which a bias allegation has succeeded as against the Tribunal fortunately may be rare, instances do occur where a reasonable apprehension of bias is made out: eg, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 , 131 FCR 102. Kenny J there relevantly concluded: [82] ... The vice in this case was that, by the Member's conduct during the hearing, a fair-minded observer might well infer that there was nothing the applicant could give by way of evidence or submit by way of argument that might change her mind about his claim -- that he had fabricated his account. Virtually from the beginning of the hearing until its end, the Member expressed her disbelief in his truthfulness. Whether expressly, by implication, or by her tone of voice, she made it clear that she did not believe him and the account he gave. As well as repeated expressions of disbelief, there were her constant adverse comments on his evidence; and numerous displays of irritation, impatience, frustration and, sometimes, sarcasm. The applicant was regularly interrupted. Much of the Member's questioning of the applicant appeared calculated to undermine his case, rather than to facilitate a non-partisan investigation into the facts.


case_outcome: referred to

case_text: Contrary to Telstra's submission, the authorities show that where there has been an invalid exercise of an administrative power, including on the ground of jurisdictional error, the Court will consider whether it is appropriate to find a severable valid exercise of power: cf Biyiksiz v Minister for Immigration and Multicultural Affairs [1998] FCA 352 at 12; Re Australian Industrial Relations Commission; Ex parte Smith [2004] FCAFC 271 at [85] - [88] ; Minister for Home Affairs v Tervonen [2008] FCAFC 24 ; (2008) 166 FCR 91 at [97] - [107] .


case_outcome: distinguished

case_text: In oral submissions, senior counsel for Telstra directed this first argument mainly to Telstra's ground 10(c) which was that ACCC fell into jurisdictional error. Telstra submits that at common law the inevitable result of its success in relation to cl 5A(i) is that the entire Final Determination is a nullity. Telstra cites in support Craig v The State of South Australia [1995] HCA 58 ; (1995) 184 CLR 163 ; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 ; and Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476.


case_text: At common law, a provision is severable if it is a straightforward matter to isolate it from the remaining provisions and the remaining provisions are not affected in their meaning and operation by severing the invalid part: cf Harrington v Lowe (1996) 190 CLR 311 at 327-8; Evans v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 276 ; (2003) 135 FCR 306 at [61] [62]. The common law test is satisfied in the present case. 24 Section 46 of the AI Act (set out at [5] above) requires severance, because the structure and effect of the Final Determination clearly expose "the extent" to which the Final Determination is and the extent to which it is not in excess of power: cf Re Dingjan; Ex parte Wagner [1995] HCA 16 ; (1995) 183 CLR 323 at 347-348 per Dawson J; Evans v Minister for Immigration [2003] FCAFC 276 ; (2003) 135 FCR 306 at [63] [65].


case_title: Harrington v Lowe (1996) 190 CLR 311

case_text: At common law, a provision is severable if it is a straightforward matter to isolate it from the remaining provisions and the remaining provisions are not affected in their meaning and operation by severing the invalid part: cf Harrington v Lowe (1996) 190 CLR 311 at 327-8; Evans v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 276 ; (2003) 135 FCR 306 at [61] [62]. The common law test is satisfied in the present case.


case_title: Minister for Home Affairs v Tervonen [2008] FCAFC 24 ; (2008) 166 FCR 91


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


case_title: Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476


case_title: Re Australian Industrial Relations Commission; Ex parte Smith [2004] FCAFC 271


case_text: Section 46 of the AI Act (set out at [5] above) requires severance, because the structure and effect of the Final Determination clearly expose "the extent" to which the Final Determination is and the extent to which it is not in excess of power: cf Re Dingjan; Ex parte Wagner [1995] HCA 16 ; (1995) 183 CLR 323 at 347-348 per Dawson J; Evans v Minister for Immigration [2003] FCAFC 276 ; (2003) 135 FCR 306 at [63] [65].


case_text: Telstra relies on the decision of Bennett J in Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 3) (2007) 99 ALD 268 ( Telstra v ACCC (No 3) ). That case concerned a Pt A competition notice issued by ACCC under s 151AKA of the Act. Section 151AKA(10) provided, relevantly, that ACCC must not issue such a notice unless it had first given the addressee carrier or carriage service provider a written notice inviting it to make a submission to ACCC on the proposal to issue the Pt A competition notice. 28 In Telstra v ACCC (No 3) , ACCC sought leave to argue that there should be a severance of the respective parts of the Pt A competition notice pursuant to s 46 of the AI Act so as to preserve the validity of those parts which had been notified in the notice of invitation. Her Honour held (at [83] [91]) that there could not be a severance. She held that s 46 had no application to a decision made under an Act as distinct from an instrument (at [55]) and also distinguished between questions of severance involving an "excess of power" and a lack of power to make an entire instrument (at [57]). 29 It suffices to say that s 151AKA(10) was a prohibition on the issuing of a Pt A competition notice unless ACCC had first taken the steps mandated by s 151AKA(10)(a). 30 The statutory provisions in the present case are different. Section 152CR(1) required ACCC to take specified matters into account in making a decision, namely, a final determination, and s 152AQA required ACCC to have regard to any determination of principles relating to the price of access to a declared service if it was required to arbitrate (make a decision upon) an access dispute under Div 8 in relation to that service.


case_text: concept of authorisation was discussed in Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 ; (2006) 156 FCR 380 at [20] (p 385) (per Branson J) and at [136] [147] (pp 408 411) (per Kenny J). After reviewing a number of authorities which, by 2006, were largely of historical significance, Kenny J approached the question of authorisation by applying the terms of s 101(1A) construed in light of the historical position. Her Honour held that it is usually not a straightforward matter for the Court to determine what degree of control can constitute a sufficient basis for a finding of authorisation ( Cooper [2006] FCAFC 187 ; 156 FCR 380 at [142] (p 410)). Her Honour said that it will always be a question of fact and degree in each case. Even mere inactivity or indifference might be sufficient if those things are coupled with other factors. There is not a great deal of evidence directed to the position of the second respondent. However, he has not appeared to defend himself against the allegations made against him. His involvement with the first and fourth respondents cannot be denied (as to which see [43] [45] above). It is reasonable, I think, in the circumstances, for me to conclude that he played a significant role in the conduct of the fourth respondent which resulted in the unlawful transmission of Episode 5 of Twin of Brothers . He seems to be the most senior executive active in the business of the fourth respondent. In the circumstances, I am prepared to infer that the second respondent authorised the infringement by the fourth respondent which I have found. I do so bearing in mind the terms of s 101(1A) and the observations of the Full Court in Cooper [2006] FCAFC 187 ; 156 FCR 380. It also seems to me that the second respondent participated in a common design with others whereby TVBO's copyright in the Twin of Brothers films was infringed. For the above reasons, I am prepared to make the orders sought as against the second and fourth respondents. There will be orders accordingly. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate: Dated: 7 October 2009 Counsel for the Applicants: Mr JV Nicholas SC with Mr CN Bova Solicitor for the Applicants: Marque Counsel for the First and Third Respondents: Mr M Green The Second and Fourth Respondents did not appear Solicitor for the First, Second and Third Respondents: S Moran & Co Date of Hearing: 10 February 2009 Date of Judgment: 7 October 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1132.html


case_text: In B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30 (' B41 of 2003 '), Dowsett J dealt with a similar situation to that of the present appellant. There the appellant decided not to attend hearing after his migration agent advised him as to his likely prospects of success. His Honour stated at [23]: The Tribunal had tried to advise him of these matters in the correspondence. Even accepting that he did not receive those letters, I cannot accept that he was unaware of the purpose of the hearing. He asked the immigration adviser whether he could attend and clearly understood that it was the occasion for making submissions. She did not tell him that he could not attend, but that there was no point in his so doing. That was a matter for judgment. He chose to act on this advice. That he did not attend the hearing was a consequence of such choice. There was no denial of procedural fairness. See R v Home Secretary; Ex parte Al-Mehdawi [1990] 1 AC 876 at 895 and SBA Foods Pty Ltd v Victorian WorkCover Authority & Anor [2001] VSC 276 per Gillard J at [274-283]. See also Stefanovski v County Court of Victoria & Anor [2000] VSC 417 per Gillard J at [175-190]. A passage from the decision in Al-Mehdawi was cited with apparent approval by Gleeson CJ in Hot Holdings Pty Ltd v Creasy & Ors [2002] HCA 51 ; (2002) 210 CLR 438 at [22] . However the passage in question was not directly supportive of the outcome in Al-Mehdawi . I also note that his Honour there observed that: 'Procedural unfairness can occur without any personal fault on the part of the decision-maker.' See also SZEYH v Minister for Immigration [2006] FCA 93 at [30] - [31] per Jacobsen J. 19 Clearly, the appellant made a choice, of exactly the same kind described by Dowsett J in B41 of 2003 . It is not a case, such as that which confronted the Court in the M172 case where the appellant's migration adviser responded on his behalf, contrary to instructions and declined the invitation.


case_title: M172 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 23

case_text: In M172 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 23 (' M172 case '), Bryant CFM said the following, at [28]: All the Australian authorities require some defect in the decision making process. Re MIMIA; Ex Parte Lam (2003) HCA 6 where at para 105 McHugh and Gummow JJ said: But the failure to meet that expectation does not reasonably found a case of denial of natural justice. The notion of legitimate expectation serves only to focus attention on the content of the requirement of natural justice in this particular case. The ends sought to be attained by the requirement of natural justice may be variously identified. But at least in a case such as this the concern is with the fairness of the procedure adopted rather than the fairness of the outcome. It is with the decision-making process not the decision, as Lord Brightman put it (98). What is delivered by the requirement of natural justice is the right to a hearing, a technical expression in law, before action is taken. 19 Clearly, the appellant made a choice, of exactly the same kind described by Dowsett J in B41 of 2003 . It is not a case, such as that which confronted the Court in the M172 case where the appellant's migration adviser responded on his behalf, contrary to instructions and declined the invitation.


case_text: Similarly, in NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184 at [9] , [14] and [16] the Full Court was willing to accept that the appellant was not told of the hearing but even so found that that matter was of no legal relevance and did not constitute jurisdictional error.


case_outcome: affirmed

case_title: SZHKI v Minister for Immigration & Multicultural Affairs [2006] FMCA 1230


case_title: VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134

case_text: It does not matter that an appellant's non-attendance is by reason of their own election or by no fault of their own. In VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 , Sundberg and Hely JJ stated, at [16]: Part 7 of the Act (in which ss 420 , 425A , 426A , 441A and 441C appear) must be read as a whole. Sections 425A , 426A , 441A and 441C are specific provisions qualifying the general provisions of s 420. The scheme they involve expressly contemplates that, in particular circumstances, an applicant will not attend a hearing, including cases involving no fault of the applicant. Notwithstanding that, the Tribunal is authorised to proceed to decide the review in the applicant's absence.


case_text: if the Tribunal misconstrued any of the criteria prescribed by the Migration Act 1958 (Cth) ("the Act ") or the Migration Regulations 1994 (Cth) ("the Regulations ") or in effect failed to ask the question which the Act or Regulations required to be asked, jurisdictional error will occur. The relevant principles are conveniently set out by Kenny J in Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558.


case_text: appears clear that s 424A is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with and excludes other common law principles: s 422B and see SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1493 ; (2005) 148 FCR 302 and Lay Lat v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 61 at [60] [70].


case_text: my view the Tribunal did not deny any procedural fairness to the appellant. The appellant was given the opportunity to provide the Tribunal with material in support of his claims. At the hearing the appellant provided the Tribunal with a number of newspaper clippings and other material relating to political killings and election-related violence. Insofar as the country information cited by the Tribunal was relied upon, in my view the Tribunal was not required to provide the appellant with an opportunity to comment on its assessment of that country information by reason of the operation of s 424A(3)(a) of the Act and I refer to a number of cases including Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572 at 598-600; VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [12] [14] and [21]; WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 at [42] [46]; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [20] [30]; and VJAF v Minister for Immigration and Multicultural Affairs [2005] FCAFC 178 , at [15] to [16].


case_title: MZXCV v Minister for Immigration and Multicultural Affairs [2006] FMCA 836


case_title: QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92


case_title: SZBDF v Minister for Immigration and Multicultural & Indigenous Affairs [2005] FCA 1493 ; (2005) 148 FCR 302


case_text: can find no basis for considering that the Tribunal misconstrued its task or failed to address the correct inquiry. The appellant submitted that the Tribunal misunderstood the meaning of persecution and "serious harm" for the purposes of the Refugees Convention and s 91R of the Act in finding that the harm that the appellants experienced in the past did not amount to serious harm. In my view the Tribunal did not misunderstand the meaning of either of those terms within the meaning of the Refugees Convention or the Act . It was open at all times to the Tribunal to find that the threats and harassment alleged by the appellant did not amount to serious harm: see generally VBAS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 212 at [17] [28]. The Tribunal simply did not accept the appellant's claims concerning the incidents following the elections in April 2004. It was not satisfied that he was ever harmed as he alleged. The appellant also submitted the Tribunal failed to consider whether the facts as it found them to have occurred led to the conclusion that the appellants had a well-founded fear of persecution for a Refugees Convention reason. However, it is clear to me that the Tribunal did consider the findings of fact and addressed the proper question whether the appellants had a well-founded fear of persecution. The appellant also submitted that the Tribunal misunderstood what follows from its finding that the persecution did not have an "official" quality. But, as was noted by the Federal Magistrate, this submission did not appear to relate to any findings of the Tribunal in the present case. The appellant submitted that the Tribunal acted in breach of the rules of natural justice by failing to give him an opportunity to respond to adverse material comprising the country information in relation to the 2004 elections cited in the Tribunal's reasons and referred to above. The appellant says that had he been notified of this material he would have provided the Tribunal with information about election-related violence in Sri Lanka.


case_title: VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82


case_title: VJAF v Minister for Immigration and Multicultural Affairs [2005] FCAFC 178


case_title: WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330


case_text: The applicant referred to the numerous cases dealing with the implied contractual duty of good faith and fair dealing. It submitted that where a clause gives a party more power than is legitimately needed to protect its interests, then, a duty of good faith should be implied into the exercise of that power. It relied upon the decision of Sheller JA in Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 in support of this proposition. Like this proceeding, that case also involved a commercial lease. His Honour stated, at 368: "If a contract confers power on a contracting party in terms wider than necessary for the protection of the legitimate interests of that party, the courts may interpret the power as not extending to the action proposed by the party in whom the power is vested or, alternatively, conclude that the powers are being exercised in a capricious or arbitrary manner or for an extraneous purpose, which is another way of saying the same thing. Thus, a vendor may not be allowed to exercise a contractual power where it would be unconscionable in the circumstances to do so...". 66 The applicant's contentions in relation to good faith are only of relevance if the notice is found to be valid. The applicant noted that if the notice was found to be valid, the effect of clause 3.2.2 would be to give the landlord a wide power. Therefore, so the applicant claimed, clause 3.2.2 is the type of clause in relation to which a duty of good faith should be implied. 67 The applicant submitted that the implied duty of good faith and fair dealing was breached by the first respondent. It contended that the first respondent breached this duty through a combination of actions and omissions. First of these were the deficiencies in the notice, both in terms of its alleged vagueness and its substantive shortcomings. This was combined with sending the letter just before Christmas where, so the applicant says, a meeting had been arranged between the parties after the expiration of the 30 day period, and when the applicant says, to the knowledge of the first respondent, the 30 day period would expire when Mr Bertrand was on leave. The applicant also adds to these circumstances the fact that the notice was sent to Mr Bertrand, who Mr Allen know did not speak English as his first language, instead of Mr Jarman, to whom notices and other correspondence relating to the Mulgrave premises had always previously been sent.


case_text: In support of this contention, the first respondent submitted that the notice closely resembled the rent review notice in Amalgamated Estates Ltd v Joystretch Manufacturing Ltd (1980) 257 EG 489 (" Amalgamated Estates "). That notice was in the following terms: "Dear Sirs, Re: 14 Regent Street and 3 Bank Street, Rugby. Pursuant to the terms of your Lease of the above premises dated December 7 1973, we hereby give you notice that we require a review of the yearly rental payable thereunder as from December 10 1978. We specify that the new rent payable as from December 10 1978 will be [sterling]10,000 per annum exclusive. This rent is proportionally in line with our recent lettings and reviews of other premises in the area with similar accommodation. Please would you kindly acknowledge safe receipt of this notice by signing the enclosed copy notice and returning it in the stamped addressed envelope provided." 82 The notice in Amalgamated Estates was upheld as being valid. I shall return to Amalgamated Estates , and whether the reasoning in that case is applicable to the present proceeding later in these reasons for judgment. 83 The first respondent contended that the only substantive requirement of clause 3.2.2 is that the lessor subjectively assess the "proper rent for the premises" as defined. There is no requirement that this assessment be objectively "reasonable". 84 The first respondent relied upon a number of cases with comparable rent review clauses to support the proposition that all that the landlord must do is specify its subjective assessment of the rent it is up to the tenant to object. 87 The first respondent also relied upon Amalgamated Estates in relation to the claim that the notice did not comply with the substantive requirements of clause 3.2.2. In Amalgamated Estates the obligation was to pay "open market rental". The rent review clause (clause 3(a)) provided that "open market rental" was first to be determined in the following manner, namely: "specified in notice in writing signed by or on behalf of the Landlord and posted ... to the Tenant at the demised premises..." 88 The lease then provided for the lessee to serve a "counter-notice" if it objected to the rent specified by the landlord in the notice. In that case, Lawton LJ, with whom both Templeman LJ and O'Connor LJ agreed, stated at 491: "There are two questions, therefore, for decision in this case: (1) should there be implied into clause 3(a) of the proviso words to the effect set out in the defence, namely, that the sum specified by the landlords should be a bona fide and genuine pre-estimate of the open market rental value? ... As to the first point, I have no doubt at all that the words which, it was submitted, should be read into clause 3(a) cannot be so read. The proviso deals with definitions and procedure. Clause (1) of the proviso provides that the open market rental must be a rent which might reasonably be demanded by a willing landlord, etc. Clause (3) sets out how that reasonable rent is to be fixed and it is to be done in three stages. First, the landlord is to specify his figure; then there are to be negotiations for an agreement if his figure is not at once accepted. That is clear from clause 3(b). If there is no agreement then there is to be arbitration. It is after all those steps have been taken that a reasonable rent is to be ascertained; and I can see no room at all in this lease for implying that the figure specified by the landlord must start with a bona fide and genuine pre-estimate of the rent." 89 Similarly, Templeman LJ stated at 493: "The first point made by Mr de la Piquerie for the tenant is that there must be an implied term that the landlord will only specify a bona fide and genuine pre-estimate of the open market rental value. That appears to me to be an unnecessary and unworkable proposition. If a landlord puts forward a preposterous figure for rent, the tenant can always serve a counternotice. It would be ludicrous if the court were obliged to decide whether the landlord's figure was a bona fide and genuine pre-estimate in order to decide whether the landlord's request for an increased rent was valid or wholly void. The court does not exist to punish a landlord for being greedy, especially as the definition of "greed" varies from Shylock to Portia and from landlord to tenant." 144 The cases relied upon by the first respondent as upholding notices in a similar form are, in my view, distinguishable from the notice in this case. The first respondent placed particular reliance upon the notice that was upheld in Amalgamated Estates . That notice was in a much clearer form than that in the present case. The relevant clause in the lease required the landlord to specify the open market rental by notice in writing. The notice stated: "Pursuant to the terms of your Lease of the above premises dated December 7 1973, we hereby give you notice that we require a review of the yearly rental payable thereunder as from December 10 1978. We specify that the new rent payable as from December 10 1978 will be [sterling]10,000 per annum exclusive." 145 Moreover, the validity of the notice in Amalgamated Estates was not challenged on the basis of its form, but rather on the basis that the landlord had not specified a bona fide and genuine pre-estimate of the open market rental on the property in question.


case_text: Since Mannai , that test has been repeatedly applied in English courts. See, for example, the recent decision of the Court of Appeal in Lancecrest Limited v Asiwaju [2005] EWCA Civ 117 (" Lancecrest "). The test has been applied in this Court in Australasian Performing Right Association Ltd v Metro on George Pty Ltd (2004) 210 ALR 244 per Bennett J (in the context of a notice of termination). It has also been applied by the Victorian Court of Appeal in MLW Technology Pty Ltd v May [2005] VSCA 29 (in the context of a notice seeking enforcement of a term of a contract), by the New South Wales Court of Appeal in Etlis v New Age Constructions (NSW) Pty Ltd [2005] NSWCA 165 (in the context of a notice triggering an extension of time in relation to building work), and in the Supreme Court of New South Wales in McIntyre v Marshall [2004] NSWSC 412 (a vendor's notice to complete), Gibbins Thomson Pty Ltd v Council of the City of Liverpool [2004] NSWSC 1172 (a notice of failure to meet obligations under the contract), and Heaps v Addison Wesley Longman [1999] NSWSC 1093 (a notice from a tenant requesting the appointment of a second valuer in relation to a rent review).


case_text: I note that bankruptcy notices arguably constitute an exception to this approach. In Australian Steel Company (Operations) Pty Ltd v Lewis [2000] FCA 1915 ; (2001) 109 FCR 33, the majority in a specially constituted court of five (Black CJ, Heerey and Sundberg JJ, Lee and Gyles JJ dissenting) held that the misstatement in a bankruptcy notice of the statutory provision under which interest was being claimed served to invalidate the notice. This was so even though the correct sum of interest was claimed. The majority found that it was irrelevant whether a debtor might be misled or not. Their Honours came to this view on the basis that the Bankruptcy Act 1966 (Cth) made the requirement to specify the relevant legislative provision essential. In my view, such an approach is not relevant to these proceedings. In any event, it would only make it more difficult for the first respondent to establish the validity of the notice. 134 The applicant and first respondent both agree that the notice in this proceeding must be considered as a composite of the letter from Mr Allen addressed to the Manager of Nobi Holdings, and the Colliers letter. The applicant acknowledged, correctly in my view, that the notice did not need to refer to clause 3.2.2, and did not have to inform the recipient of the 30 day period within which to object to the increased rent. Nor did it have to adopt any particular form of words to be valid. 135 Even taking this into account, I am unable to find that the notice satisfies the relevant test of validity, as outlined above at [129]. In my view, the notice is not expressed unequivocally and would leave a reasonable person in receipt thereof in doubt as to its effect.


case_text: The test laid down in Mannai is consistent with approaches taken to the validity of notices, or analogous documents, outside of contract law. For instance, in Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523, Burchett J warned, at 533, against adopting an "overly technical view" in considering the validity of search warrants. He stated, at 544, that in relation to the search warrants at issue in that case, "[t]he language may be infelicitous", however the nature of the offences specified in the search warrants was clear, and the search warrants were therefore valid. His Honour cited, at 543, New Zealand authority which adopted the test of what a "reasonable reader" would "gather" from the search warrants to determine whether they sufficiently indicated the offence involved: see Rural Timber Ltd v Hughes [1989] 3 NZLR 178.


case_text: The second respondent gave numerous examples of cases where it said leave to amend in similar circumstances had been refused. See Lewis v Sydney Flour Pty Ltd (1956) 56 SR (NSW) 189, Burnham v City of Mordialloc [1956] VLR 239, Ralph v Strutton [1969] Qd R 348 and Mercantile Mutual Insurance (Australia) Ltd v Farrington (1996) 44 NSWLR 634.


case_text: The first respondent contended that for a term to be implied, it must be "reasonable and necessary": Byrne v Australian Airlines Limited [1995] HCA 24 ; (1995) 185 CLR 410 at 450. The first respondent submitted that an implied term of good faith was neither reasonable nor necessary in this case. It submitted that the mechanism established by the lease, allowing the lessor to nominate the rental assessment and the lessee to object, contemplates that the rent specified in the lessor's rental assessment may not be reasonable, or otherwise acceptable to the lessee. The first respondent submitted that the presence of the objection mechanism demonstrates that no such implied term is necessary. 94 The first respondent contended that the implication of such a term would alter the effect of the rent review mechanism agreed to, as it would enable a lessee to ignore a notice and "embark upon a curial challenge". 95 Even if such a term were to be implied, the first respondent submitted that the content of that term would require nothing more of the first respondent than that the rental assessment contained in the notice be an honestly held opinion. The first respondent submitted that the evidence supports the contention that the assessment contained in the notice represented the honest opinion of Mr Allen.


case_text: The first respondent submitted that the notice must be construed objectively and in context: Carradine Properties Ltd v Aslam [1976] 1 WLR 442 and Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19 ; [1997] AC 749 at 767 (" Mannai "). The first respondent also submitted that a reasonable recipient is to be credited with knowledge of the terms of the lease: Mannai . See also MLW Technology Pty Ltd v May [2004] VSCA 29.


case_title: Catley v Watson (1983) V ConvR |P54-003

case_text: The first of these cases was Catley v Watson (1983) V ConvR |P54-003, which involved a notice of rescission served by a vendor upon a purchaser. In that case, "copyright condition 5" of the contract provided for the service of a notice of rescission. Brooking J stated, at 62,115: "In my opinion, a notice under copyright condition 5 is not valid unless it is, in relation to its essential features as required by that condition, clear and unambiguous. By this I mean, not that its import must be clear beyond the slightest peradventure, but that its terms must be such that a reasonable person, having given it fair and proper consideration, would be left in no doubt as to its meaning. A notice is not unequivocal, in the sense in which such notices are required to be unequivocal in relation to their essential contents, if a reasonable person, having considered the notice as a whole, fairly and properly, might entertain a doubt as to its meaning in relation to some essential matter, even though he would form in his mind a preference for one view, rather than the other of what the notice was intended to convey. It must be possible to say that, after the appropriate consideration, any doubts that may have arisen would have been quieted and the purchaser would not be left in any uncertainty as to the meaning of the notice...". (emphasis added) 39 Plainly, Catley v Watson can be relied upon only by analogy as it concerns the requirements for a valid rescission notice and not the requirements for a valid rental review notice. 48 Lastly, the applicant cited Central Pacific (Campus) Pty Ltd v Staged Developments Australia Pty Ltd (1998) V ConvR |P54-575 (" Central Pacific "). That case, like Catley v Watson , involved a rescission notice. Callaway JA, with whom Buchanan JA agreed, stated at 66,909 that the relevant approach is to ask: "whether a reasonable person who had considered the notice as a whole and given it fair and proper consideration would be left in any doubt as to its meaning." 152 I should note that in Central Pacific , it was suggested that the test expounded in Mannai was distinguishable from that in Catley v Watson : see Ormiston JA at 66,903 and Callaway JA at 66,909. 153 For my part, I cannot discern any difference in the effect of the tests in Mannai and Catley v Watson . Nor could the Victorian Court of Appeal in MLW Technology Pty Ltd v May (see [82] per Gillard AJA (with whom Winneke P and Buchanan JA agreed)).


case_text: Lastly, the applicant cited Central Pacific (Campus) Pty Ltd v Staged Developments Australia Pty Ltd (1998) V ConvR |P54-575 (" Central Pacific "). That case, like Catley v Watson , involved a rescission notice. Callaway JA, with whom Buchanan JA agreed, stated at 66,909 that the relevant approach is to ask: "whether a reasonable person who had considered the notice as a whole and given it fair and proper consideration would be left in any doubt as to its meaning." 152 I should note that in Central Pacific , it was suggested that the test expounded in Mannai was distinguishable from that in Catley v Watson : see Ormiston JA at 66,903 and Callaway JA at 66,909.


case_text: The first respondent contended that challenges similar to that made by the applicant in the present proceeding had been unsuccessful in other cases, such as Fox & Widley v Guran [1998] 3 EG 142 (a case where the submission that the landlord was required to estimate a "bona fide and genuine" assessment in a rent review notice was rejected) and Davstone (Holdings) Ltd v Al-Rifai (1976) 32 P&CR 18 at 26 (a case which concerned whether there was an obligation upon a landlord to specify an objectively "reasonable" figure in a rent review notice).


case_text: The second respondent submitted that pleadings may be amended after the close of evidence provided that any new facts raised by the amendment were the subject of evidence and the other party had an opportunity to litigate them. It contended that this case was not one where an amendment should be permitted so that the pleadings reflect the conduct of the trial and the issues litigated between the parties. Rather, the second respondent "cast its defence in a particular way on the basis of one case and is now faced with a different case that it may have fought differently". See EFM Pty Ltd v New Zealand Steel (Aust) Pty Ltd [2000] VSC 290 at [24] per Warren J. As such, the second respondent claimed that it would be prejudiced should an amendment be allowed. It said that had this matter been pleaded, it could have cross-examined Mr Jarman or Mr Bertrand as to the value of the fixtures and fittings that are additional to those set out in schedule 2. 117 The applicant submitted in closing that the onus lies upon the respondents to prove that the alleged misconstruction of clause 3.2.2 was not material. Although the respondents both objected to this proposition, if it were held to be correct, the second respondent submitted that it has not had the opportunity to lead evidence as to the value of the "additional" fixtures and fittings. 118 The first respondent also submitted that it would have called additional evidence, and further cross-examined witnesses had this matter been pleaded. In particular, it said that it would have led additional evidence from Mr Allen in relation to his state of mind as to the inclusion of fixtures and fittings at the time he served the notice, would have cross-examined the applicant's witnesses as to the value of the fixtures and fittings falling outside of schedule 2, and would have considered calling further valuation evidence.


case_title: Etlis v New Age Constructions (NSW) Pty Ltd [2005] NSWCA 165


case_title: Fox & Widley v Guran [1998] 3 EG 142

case_text: The first respondent contended that challenges similar to that made by the applicant in the present proceeding had been unsuccessful in other cases, such as Fox & Widley v Guran [1998] 3 EG 142 (a case where the submission that the landlord was required to estimate a "bona fide and genuine" assessment in a rent review notice was rejected) and Davstone (Holdings) Ltd v Al-Rifai (1976) 32 P&CR 18 at 26 (a case which concerned whether there was an obligation upon a landlord to specify an objectively "reasonable" figure in a rent review notice). 146 Fox & Widley v Guran , another case cited by the first respondent, involved a typographical error. The notice stated the rent review date as being 23 May 1989, rather than 25 May 1989. Clarke J found that such an error could not mislead anyone, nor was there any evidence that the tenant had in fact been misled.