case_text: evidence concerning tourism and travel does not, of itself, establish recognition by consumers in Australia of the association of "Bavaria" with beer, either by oral reference or by reference to a trade mark. The evidence does no more that form a basis from which, without more, BBA seeks to draw conclusions that Australians read such tourist guides and that those who read them or who were born in Europe or have visited Bavaria become aware of Bavaria's reputation for beer and remember that fact so that, when they see the trade mark containing the word BAVARIA, they conclude that the beer sold under the trade mark is from Bavaria. While the tourist guides may have some relevance, neither they nor the other material on population movements, alone or together, form a sufficient basis from which to draw the conclusions that BBA seeks to draw as to the connotation that would be drawn from the trade mark by the Australian consumer ( ConAgra Inc v McCain Foods (Aust) Pty Ltd [1992] FCA 159 ; (1992) 33 FCR 302 at 346 350 per Lockhart J). BBA also says that Bavaria has a reputation for beer of excellence and fine quality and refers to the evidence of the required methods of brewing. However, the Bavarian method of brewing is not the same as an association with the geographical region of Bavaria. There is no evidence to suggest that the Australian consumer would be aware of the details of the Bavarian method of cold fermentation of beer or that the ingredients for the preparation of bottom fermentation beer and top fermentation beer is protected by statute, which has its roots in the "Bavarian Purity Law" of 1516. In any event, BBA does not say that these features would be known to the average Australian consumer. Rather, it submits, they support the reputation of Bavaria in Australia as a place where beer is brewed and, additionally, beer of high quality. Neither party contends that consumers in Australia would see BAVARIA and assume that the beer was brewed according to the Bavarian style or method. The consumer


case_outcome: considered

case_text: is well-established that the impression conveyed by the whole of the mark must be considered ( Angelides v James Stedman Hendersons Sweets Limited [1927] HCA 34 ; (1927) 40 CLR 43 at 68; Crazy Ron's Communications Pty Ltd v Mobileworld Communications Pty Ltd [2004] FCAFC 196 ; (2004) 209 ALR 1 at [100] ). In Angelides , Isaacs ACJ characterised as "trite law" the principle that in a composite mark, however prominent a single word may be, the whole trade mark must be considered. Different considerations apply to a word mark and a mark that includes a distinctive geometric device, so that even though words may be deceptively similar, the rendition of a particular device may take the trade mark outside of deceptive similarity ( Crazy Ron's [96]-[99] and [103]). As the Full Court noted in Crazy Ron's , each case must be considered on its own facts and each trade mark evaluated. Whether a word constitutes an essential feature of a composite mark is determined by the overall impression of the mark and the prominence and character of the word in question, as well as other words and devices present. The totality of the device mark must be considered ( Sports Cafe Ltd v Registrar of Trade Marks (1998) 42 IPR 552). That is, the visual form of presentation may render two marks different. Bavaria NV draws a comparison between BAVARIA which, it says, is not (by itself) an essential feature of the trade mark, and the words CRAZY JOHN, which were held by the Full Court not to be an essential feature of a composite mark consisting of those words and a device, being a relatively large fantasy cartoon character holding a mobile telephone astride a stylised globe ( Crazy Ron's at [97]). In drawing that conclusion the Full Court pointed out that the words themselves were not especially prominent and were subsidiary to the fantasy character which occupied the dominant position in the overall image. The Full Court emphasised that it is necessary to consider a composite mark as a whole and that caution needs to be exercised in characterising words in a complex composite registered trade mark as an essential feature of the mark (at [100]). The trade mark the subject of the application did not, as it should not, contain the symbol ®. Similarly, the trade mark, as advertised, did not include the symbol of a registered mark next to the word BAVARIA. However, Bavaria NV has sold products in Australia under labels containing the ® symbol next to the word BAVARIA. The image of the trade mark that was included in the Delegate's decision also incorporated the ®. The use of the ® symbol is not relevant to an understanding of the trade mark but its presence is of some relevance to BBA's submissions on the prominence of the reference to BAVARIA. BBA submits that the placing of the ®, the indication of registration, next to the word BAVARIA on the labels indicates that Bavaria NV considers that word to be the essential feature of the mark. To my mind that positioning is equivocal. If Bavaria NV or the consumer were of the view that the word BAVARIA represents the brand name not associated with a geographical indication or place of origin, the positioning of the registration mark is neutral. However, I do accept that it draws attention toward the word BAVARIA, being the more prominent word on the label, and away from the smaller sized HOLLAND. BBA contends that the evidence does not establish any use of the trade mark in Australia prior to or near the priority date, or at all. Bavaria NV's trade marks Bavaria NV argues that abbreviations or alterations to the trade mark are unlikely to be helpful in considering a trade mark application, giving as an example that, if "McDonalds" is reduced to "Maccas", they are two different trade marks and the use of one is not the use of the other. It submits that, to make reference only to the aural use falls into the trap or vice described by the Full Court in the Crazy Ron's case: the substitution of a word mark for a word and device mark. Bavaria NV submits that the words in the trade mark are BAVARIA HOLLAND BEER and that those are the words which, if there were an aural rendition of the mark, would be used. Bavaria NV also draws a distinction between the use of the trade mark and post-priority date activities (eg. marketing) which make reference to "Bavaria" or "Bavaria Beer". Bavaria NV concedes that post-priority date evidence as to the use of the trade mark is relevant in order to see whether or not it would be likely to cause confusion but says that this is not the trade mark. Bavaria NV insists that for the purposes of this case, which involves an opposition to registration, the requirement to consider the use of the trade mark imports only a consideration of the use made of the trade mark as a whole and makes irrelevant the use made of one part of the trade mark in referring to Bavaria NV's goods, including the evidence of its own use of the single word "Bavaria" to refer to the beer. There was no evidence of any actual confusion or misunderstanding by consumers of the origin of Bavaria NV's beer. While such evidence is not essential, the evidence or lack thereof can be, as it may be in an infringement case, ' of some significance ' ( Crazy Ron's at [95]). Bavaria NV's evidence, through Mr Petrus Swinkels and Mr Carroll, is that they are unaware of any complaints or queries from any customers regarding the origin of Bavaria NV's products or of any confusion as to the origin of the beer arising from the use of the word BAVARIA on the labels. Part of Mr Petrus Swinkels' role as Export Manager for Bavaria NV was to be made aware of issues raised in export markets concerning the products sold by Bavaria NV, including those sold under the trade mark. He continued to be informed of such issues when he became a member of the Board of Directors and then Chairman of the Board of Directors. Mr Swinkels says that during his entire employment with Bavaria NV he never received or was informed of a complaint or query from a customer or distributor concerning the origin of the products sold by Bavaria NV, including products sold under the trade mark. The available evidence supports Bavaria NV's submission that there is no body of consumers which has been deceived or confused, in Australia or worldwide, in a way that BBA says is self-evident. I am not satisfied that the consumer would associate the trade mark with the State in Germany. I am not satisfied that the trade mark connotes more than a European origin of the beer. I am not satisfied that the trade mark connotes that the beer has characteristics attributable to a Bavarian origin. Mr Crossland's evidence is that in his opinion Bavaria NV's beer does not have the characteristics of a Bavarian pilsener. This does not establish that Bavaria NV's beer does not have the quality of a Bavarian beer. Mr Crossland has not conducted a comparison between Bavaria NV's beer and a statistical or broad range of Bavarian beer. Mr Antonius Swinkels' evidence that Bavaria NV brews its beer in Holland according to the method introduced by Bavarian brewers over a hundred years ago is not challenged other than by way of an observation that he conducted no independent research but relied on historical material.


case_outcome: cited

case_text: Bavaria NV emphasises, s 43 of the Act requires not only that the connotation of the trade mark be established but also that, because of the connotation, the use of the trade mark in relation to the goods will be likely to deceive or cause confusion. The likelihood of deception or confusion must flow from the secondary meaning inherent in the mark itself ( Pfizer Products Inc v Karam [2006] FCA 1663 ; (2006) 237 ALR 787 at [53] per Gyles J). The underlying purpose of s 43 is to prevent the public being deceived or confused as to the nature of the goods by reason of the secondary meaning connoted by the mark in question ( Pfizer at [53]). Even if there were a potential signification of geographical origin, the question is whether the use of the trade mark would deceive or cause confusion by reason of that use. Bavaria NV submits that mere assertion of the connotation that the beer originates in Bavaria is not sufficient. BBA must, it says, prove that connotation as a matter of fact, on the evidence. Whether there is a real and not a trivial danger of deception or confusion, whether use would be likely to deceive or confuse, is a question of fact based on conditions as established to apply at the priority date, although, Bavaria NV accepts, one is permitted to look at post-priority date evidence in assessing deception or confusion as at the priority date. That is, Bavaria NV says, the two questions for the purposes of s 43 of the Act are: Does the word BAVARIA have a connotation with the State of Bavaria in Germany? Would the consumer be deceived or confused by the word BAVARIA and any connotation that it refers to the State in Germany and think that Bavaria NV's beer was of Bavarian origin?


case_text: normal and fair use of the mark may affect and reflect the way in which the consumer evaluates the prominence of the features of the trade mark. In circumstances where Bavaria NV's beer has been marketed by reference to "Bavaria", "Bavaria Beer" and "Bavaria Holland" and it is by those names that the beer may be known, it is appropriate, in considering whether the mark is inherently adapted to distinguish Bavaria NV's goods, also to take into account that use of the trade mark ( Polo Textile Industries Pty Limited v Domestic Textile Corporation Pty Limited [1993] FCA 203 ; (1993) 42 FCR 227 at 231 citing de Cordova v Vick Chemical Co (1951) 68 RPC 103 at 105 106). BBA submits that, despite the existence of a composite mark, a conspicuous part of a label or the distinctive feature of a label can be said to be the true trade mark rather than the label as a whole, as a matter of impression. BBA submits that the imperfect recollection of the consumer may omit the specific devices used in the trade mark and the word HOLLAND and may simply recall (or notice) BAVARIA. However, as noted in [55], while a trade mark consisting of words and devices may be shortened to words, that does not mean that other words and devices are eliminated from consideration or that the consumer rejects them, ignores them, or fails to recall them.


case_text: make the following preliminary observations in relation to the trade mark and to the question whether other persons may legitimately wish to use the word "Bavaria" in connection with their goods because of its geographical reference and whether the trade mark is capable of distinguishing Bavaria NV's goods from the goods of other traders: The trade mark is not just the word "Bavaria" or, put another way, it is not used simpliciter or with no addition save for a description or designation of the goods. The use of the trade mark for beer does not save the word "Bavaria" from carrying its prima facie geographical signification. This is not a case where the goods for which the trade mark is used are remote from the geographical location where those goods are produced and with which the goods are associated (cf. discussion in Colorado at [29] per Kenny J). Bavaria is a place in Germany where beer is produced. This is likely to continue in the future. As at 2005, there were 623 breweries in operation in Bavaria. Other beer makers in Germany may want to use the word "Bavaria" or "Bavarian", on or in connection with their beer, either to signify the brewing style or to indicate that their beer comes from Bavaria. Bavaria NV does not suggest that the word "Bavaria" alone would be registrable for beer. It is unlikely that it would be as, for the reasons given in Clark Equipment , Colorado and University of Oxford , it would not be capable of distinguishing or acquiring distinctiveness for beer. Bavaria NV's beer was named partly in recognition of the fact that there is a style of beer-making associated with, or originating from, Bavaria. Bavarian breweries produce a wide variety of beers, for example blonde and dark beers, pilsener and export beers, wheat beers and diet beers. There is no uniform type of Bavarian beer. The word BAVARIA is prominent in the trade mark. If it is so conspicuously displayed on the label that the fact of its use would suggest that the beer comes from Bavaria, the question is whether the remaining elements of the mark dispel that association ( Re The Registered Trade Mark "Yanx"; ex parte Amalgamated Tobacco Corporation Limited [1951] HCA 28 ; (1951) 82 CLR 199 at 206 per Williams J). Many of the elements of the trade mark, namely the non-word elements such as the heraldry, would not, to the average consumer, indicate a particular country. A coat of arms and old-world emblems evoke Europe. Other brewers in Bavaria use the word "Bavaria" across a label with sprigs of barley and a crest. Examples from brewers who sell into the German market include:


case_text: do not accept that, if none of the grounds of opposition have been established, there is still a discretion to refuse to register the trade mark. The authors of Shanahan's Australian Law of Trade Marks & Passing Off (3 rd edition, Lawbook Co, 2003) express the view at [11.25] that the language of s 55 does not support the inference of any discretion. Section 55(b) permits conditions or limitations to be imposed to reflect, for example, successful opposition in respect of some but not all of the classes of goods specified. It does not add a ground of opposition. The decision to reject an application regularly made must be based upon positive satisfaction that a ground for rejecting it is made out (Registrar of Trade Marks v Woolworths Ltd [1999] FCAFC 1020 ; (1999) 93 FCR 365 at [47] per French J). Section 55 does not provide for an ambulatory discretion to operate on the Registrar or the Court to refuse a trade mark application which otherwise does not offend any of the particular grounds of opposition provided for in the Act which are relied upon. I shall, however, consider briefly the matters relied upon by BBA, which were raised in a rather desultory fashion and did not constitute the main attack on the trade mark. BBA relies on the evidence of Mr Petrus Swinkels that Bavaria NV changes the label for its beer every five to ten years and that its present label is different from the trade mark. There is evidence of use of the trade mark and the subsequent change of label, from which an absence of intention to use the trade mark in the future could be inferred. There is little evidence available concerning Bavaria NV's intention to use the trade mark as at the priority date or as at the hearing. This is understandable as there was no issue directed to that question in the pleadings. No lack of intention to use the trade mark as at the priority date has been established. BBA submits that there remains a discretionary factor arising from the fact that the label was changed in or around 2006. It seeks to draw an inference that this establishes a lack of intention to use as at 2006 and a lack of use and intended use as at the date of hearing. I am not prepared to draw those inferences in the absence of an opportunity to Bavaria NV to provide evidence. The evidence does not go so far as to say that, once a label is changed, a previous label is never to be used. Nor does it address the question of possible future use of the trade mark if it were registered.


case_outcome: referred to

case_text: parties put forward different classes of consumer to whom the trade mark is addressed. Bavaria NV says that the relevant class is of consumers of premium beer. BBA identifies consumers of alcohol, both beer and wine. The consumer would be over 18 years of age and, I accept, such a consumer would be likely to be literate and astute to the characteristics of the products that he or she is purchasing, "brand savvy" and discerning in his or her purchasing habits (as in Scotch Whisky Association v De Witt [2007] FCA 1649 ; (2007) 74 IPR 382 at [60] per Sundberg J). The evidence, including that of BBA's witness Mr Crossland, and Bavaria NV's marketing material, supports a price conscious consumer who chooses fashionable goods and chooses to drink premium imported beer for a reasonable price. As Sundberg J in Scotch Whisky observed at [60], confusion is mitigated by a review of product labels. I accept that the ordinary consumer in Australia would be aware that Bavaria is a State in Germany, as a matter of common knowledge. Will the consumer of Bavaria NV beer be led by the trade mark to believe that the beer comes from, or otherwise has its origins in, Bavaria and that it of a particular quality or has certain characteristics as a result? This depends on the overall impression conveyed by the trade mark. The consumer of a premium beer will be likely to be more aware of the reputation of Bavaria as a source of beer but will also be likely to be more discerning and take more care in understanding the information on the label. The evidence adduced by BBA does not establish that brewers in Bavaria, or brewers in Bavaria of beer exported to Australia, generally use the term "Bavaria" or "Bayerisches Bier" on their labels. To the contrary, only one of the German beer bottles in evidence used the word "Bayern " on its label. Mr Crossland is a retired journalist who has developed an interest in and has written about beer. Mr Crossland wrote his first feature article on beer in September 1999 and then wrote occasional columns for The West Australian . The column then became a regular (weekly) column. Much of his experience, since the mid 1990s, comes from reading books, research and articles on beer as well as personal discussions with people in the industry including brewers, retailers, wholesalers and importers. He attends beer tastings and dinners. He has written regular updates and tasting notes on beers available at micro-breweries in Western Australia and on beers available at interstate micro-breweries, as well as updates and tasting notes on imported beers.


case_text: Angelides , Isaacs ACJ characterised as "trite law" the principle that in a composite mark, however prominent a single word may be, the whole trade mark must be considered. Different considerations apply to a word mark and a mark that includes a distinctive geometric device, so that even though words may be deceptively similar, the rendition of a particular device may take the trade mark outside of deceptive similarity ( Crazy Ron's [96]-[99] and [103]). As the Full Court noted in Crazy Ron's , each case must be considered on its own facts and each trade mark evaluated. Whether a word constitutes an essential feature of a composite mark is determined by the overall impression of the mark and the prominence and character of the word in question, as well as other words and devices present. The totality of the device mark must be considered ( Sports Cafe Ltd v Registrar of Trade Marks (1998) 42 IPR 552). That is, the visual form of presentation may render two marks different. In Sports Cafe , the Full Court held that it was relevant to consider how a cited mark may be used informally, especially in speech, noting (at 557) the Australian tendency to shorten expressions. However, their Honours were careful (at 559) to state that, whether or not the shortened expression used for the mark may convey a certain idea, consideration of deceptive similarity needed to be made in consideration of the whole of the mark. Their Honours distinguished between a device mark which contains words on one hand and a word mark on the other. However, in considering an opposition to registration of a trade mark, care must be taken in evaluating the use of the trade mark and evidence of different ways by which the goods to which the trade mark is applied are or may be described. Invariably, a trade mark consisting of words and devices will be referred to by one or more of the words. This does not mean that the devices or other words are eliminated from consideration of the registrability of the mark. It does not mean that the consumer disregards or fails to recall the trade mark or the devices when referring to the goods in a shortened form. I accept that Bavaria NV's beer has been marketed and promoted by reference to "Bavaria Beer", "Bavaria Premium" and "Bavaria Holland" as well as by reference to "Bavaria" alone. I accept that consumers may use each of these terms aurally to refer to the beer, as a brand. However, it is the trade mark that is the subject of opposition and I do not accept that the fact of such usage of itself determines the predominant elements of the mark. The new label Bavaria NV appears to accept that there are difficulties with the word "Bavaria" being adapted to distinguish its beer but emphasises that Kitto J's observations in Clark Equipment apply to the use of a geographical term where the word is used simpliciter or with no addition except a description or designation of the goods. It submits that its composite trade mark, which uses visual components and other geographical references, is sufficient, as it was in Sports Cafe, to distinguish its trade mark from what may otherwise be a reference to "Bavaria" as the source of the beer.


case_text: Order 62 r 4(1) and (2), in my view, thus contemplate successively an order for costs, and for a means of quantifying those costs. That is a view which has been adopted by the Court, apparently without remark: see e.g. Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; Canvas Graphics Pty Ltd v Kodak (Australasia) Pty Ltd [1998] FCA 23. I can see no reason why O 62 r 4(2)(c) should not be given that effect.


case_title: Canvas Graphics Pty Ltd v Kodak (Australasia) Pty Ltd [1998] FCA 23


case_outcome: discussed

case_text: An alternative way of reaching the same outcome, where a gross sum order for costs may be made after an order for costs to be taxed, was adopted by Branson J in Brookfield v Davey Products Pty Ltd [1997] FCA 1462. In that matter, the costs order had expressly stated that the entitlement was to pay the 'costs to be taxed'. Her Honour considered that there was power under s 43 to vary the costs order so made by specifying a gross sum for costs. 12 I observe that, on 21 December 2005 when this issue was raised, Mr Dunstan did not contend that there was no power to do so.


case_text: In Dunstan v Human Rights and Equal Opportunity Commission (No 3) [2006] FCA 916 (the main costs judgment) delivered at the same time as this judgment, I referred at [22]-[24] to certain of the principles relevant to deciding whether to make a gross sum order for costs. I will not repeat them. 14 The course of the taxation of costs thus far in these matters indicates that the process of taxing costs to date in these matters has been prolonged and expensive. Mr Dunstan contends that that is the defendants' fault, and so should not be in the particular circumstances a reason to fix a gross sum for costs. 15 The bills of costs lodged on 20 February 2001 totalled $20,967 (31/97) and $21,137 (32/97) respectively. An accompanying memorandum indicated that, as the defendant in each matter was represented by the same solicitor and as each matter was conducted simultaneously, many item costs had been apportioned to each bill of costs. Mr Dunstan by letter of 25 March 2001 raised a number of objections to those bills of costs. The defendants indicated that, apart from the possibility that certain claimed costs relating to discovery ought not to have been included, they disagreed with Mr Dunstan's objections. They were nevertheless prepared to have the items objected to removed from the bills of costs. That led to the bills of costs being reduced by $3808 to $17,159 (31/97) and by $3811 to $17,326 (32/97). The disputed (and conceded) items were identified.


case_title: Dunstan v Seymour [2002] FCA 1195

case_text: On 29 May 2002, directions were given for the taxing process. It was to commence on 20 September 2002. On 6 September 2002, Mr Dunstan applied by motion to set aside the costs orders in each matter. On 13 September 2002, those motions were each dismissed with costs: Dunstan v Seymour [2002] FCA 1195. In the meantime, the taxations were rescheduled to commence on 4 October 2002. 21 There have then been seven attendances between 4 October 2002 and 27 November 2003 totalling 15.5 hours for the taxing of costs. There has been no progress since that date. In that time, only five of 37 pages of the bill of costs in one matter (31/97) have been taxed. That covers 45 of 326 items. The taxation of the other bill of costs (32/97) has not yet started. Mr Dunstan's circumstances have restricted the sessions to no more than two hours, and it has been difficult to arrange his availability. Some schedule sessions have not taken place, though events beyond Mr Dunstan's control. 22 I do not regard that material as supporting Mr Dunstan's claim that responsibility for the slow progress of the taxation of costs rests with the defendants. It shows that the defendants, for the purposes of the taxation, were prepared to concede Mr Dunstan's first round of objections. They did so, on the evidence, to progress the taxation. They did not thereby acknowledge that those items should not have been claimed. An issue arose as to the extent to which Mr Dunstan should have access to material the subject of legal professional privilege for the purposes of the taxation. Another issue arose as to the extent to which time spent on research should be allowed on taxation. They are common issues which arise. They do not indicate the defendants consciously claimed work done which was not done, or claimed that time was spent which was not spent. The taxing officer could adjudicate on the individual items of work claimed. Indeed, the material referred to tends to indicate that Mr Dunstan, rather than the defendants, has approached the taxation of costs in an obstructive way by disputing each item of work claimed, even to the extent of saying that the work was not done.


case_outcome: followed

case_text: Gleeson CJ and Crennan J observed in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 at [19] , in all applications for an interlocutory injunction the Court will ask whether the plaintiff has shown that: As their Honours observed further, these are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed (at [19]). It follows that it is for Ms Jones to satisfy me positively in respect of these issues. Before turning to these issues however it is appropriate to identify the precise relief sought by Ms Jones, and, in more detail, the background to this application. Relief Sought Pursuant to her application Ms Jones seeks relief for adverse action taken against her, and/or proposed to be taken against her, by QTAC because of her role in negotiations for an Enterprise Agreement, and for breach of her contract of employment. The permanent relief sought by Ms Jones is as follows: A. DETAILS OF CLAIM On the grounds stated in the accompanying affidavit or statement of claim (or such other accompanying document as may be prescribed by the Rules) the Applicant claims: Pursuant to section 545(2)(a) of the FW Act, an injunction restraining the Respondent from taking any action against the Applicant in reliance upon: any allegations against the Applicant made by the Australian Services Union in its letter to the Respondent dated 7 August 2009; and/or the complaint made against the Applicant by Nicola Bowes dated 7 August 2009; and/or the anonymous complaint made against the Applicant dated 11 August 2009; and/or the anonymous complaint made against the Applicant dated 12 August 2009; and/or the complaint made against the Applicant by Danelle Bayley dated 13 August 2009; and/or any allegations against the Applicant made by the Australian Services Union in its letter to the Respondent dated 14 August 2009; and/or the Carol Watson report on Grievances against CEO, QTAC dated 28 September 2009; and/or Walter Williams' hand written diary notes forwarded to the Applicant by Professor Deborah Terry on about 30 October 2009. Pursuant to section 545(2)(b) of the FW Act, the Respondent pay the Applicant compensation for loss suffered by the Applicant because of the Respondent's contravention of the FW Act; Pursuant to section 546 of the FW Act, the Respondent pay the Applicant a pecuniary penalty for the Respondent's contravention of the FW Act; A declaration that it is a term of the employment contract between the Applicant and the Respondent dated 29 November 2007 that the Applicant is entitled to be accorded natural justice in any investigation into any complaint or allegation of serious misconduct as set out in clause 15.2 of the employment contract and/or unsatisfactory performance or misconduct as set out in clause 15.3 of the employment contract. A declaration that the Respondent is in breach of the contract of employment between the Applicant and the Respondent by failing to: (a) accord the Applicant natural justice in the purported investigation into the allegations and complaints against her, as referred to in paragraph 1 above. 6. Damages for breach of contract. It is clear that the question whether there is a serious question to be tried imports the obligation of the applicant to establish a prima facie case for permanent relief as explained by Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 at [65] . There, their Honours said the establishment of a prima facie case in this context meant it was sufficient for the plaintiff to show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. How strong the likelihood needs to be depends upon the nature of the rights the plaintiff asserts, and the practical consequences likely to flow from the order sought ( Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 at [65] , Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618 at 622).


case_text: is clear that the question whether there is a serious question to be tried imports the obligation of the applicant to establish a prima facie case for permanent relief as explained by Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 at [65] . There, their Honours said the establishment of a prima facie case in this context meant it was sufficient for the plaintiff to show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. How strong the likelihood needs to be depends upon the nature of the rights the plaintiff asserts, and the practical consequences likely to flow from the order sought ( Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 at [65] , Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618 at 622).


case_text: Fourth, although Mr Spry for Ms Jones urged that the contract of employment should be interpreted as implying a term requiring QTAC to accord natural justice to Ms Jones in connection with any determination of serious misconduct or misconduct by Ms Jones, such an implied term is difficult to reconcile with cl 15.6 which specifically provides that QTAC is not required to follow grievance or other procedures in view of the seniority of Ms Jones' position. The Court does not lightly imply terms into a contract which the parties have not thought fit to express. As observed by the Privy Council in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 , in order for a term to be implied the following conditions must be satisfied: It must be reasonable and equitable; It must necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it; It must be so obvious "it goes without saying"; It must be capable of clear expression; and It must not contradict any express terms of the contract. In light of the detailed terms of cl 15, which provides for different grounds of termination and associated periods of notice, and a specific provision in cl 15.6 excluding review procedures in respect of Ms Jones' employment, it is difficult to see how the implication of term importing the rules of natural justice into the terms and conditions of employment can be justified on any of the conditions described in BP Refinery (1977) 180 CLR 266. Certainly there is clear authority to the contrary the House of Lords held in Malloch v Aberdeen Corporation [1971] 1 WLR 1578 that, absent statutory intervention, there is no rule at common law that the requirements of natural justice are incorporated into the employment relationship (per Lord Reid at 1581F-G, Lord Morris of Borth-y-Gest at 1586F and 1588D, Lord Guest at 1593G-H, Lord Wilberforce at 1595E).


case_text: is clear from the decision of the High Court in Byrne v Australian Airlines Ltd [1995] HCA 24 ; (1995) 185 CLR 410 that the same considerations apply in respect of the implication of terms into contracts of employment.


case_text: Fourth, I am persuaded that the commencement of an investigation into the allegations against Ms Jones and the commissioning of the Carol Watson report arguably constituted "adverse action" for the purposes of the FW Act. In particular, I note: Observations of North J in Kimpton v Minister for Education (1996) 65 IR 317 at 319 where his Honour said: I do not regard it as hopeless or untenable to contend that the requirement to participate in the investigatory process may amount to a relevant injury or prejudicial alteration. This is not to say that there is not force in the arguments put by Dr Jessup. Those arguments should, however, be resolved at the trial of the proceeding when the matter can be determined after comprehensive argument and in the light of all the evidence available at the trial. Observations of Goldberg J in United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board (2003) 198 ALR 466 at [89] where his Honour said in the course of delivering judgment in respect of an application for an interlocutory injunction: I am satisfied that there is a serious question to be tried on this integer of a contravention of s 298K. The laying of the charges imposes a burden on the persons charged to respond to allegations relating to their conduct as employees of the board. I do not consider that one can separate out the effect and consequence of the charges from the fact that they occurred because of the employee's employment by the board. I do not accept that a person charged is not affected in his or her employment until the charge has been proven... The laying of the charges exposes an employee of the board to a potential disadvantage in his or her employment if the charges are ultimately proven. In highlighting these comments of Ryan J in Nixon [2008] FCA 467 ; (2008) 168 FCR 340 , Mr Spry submitted that his Honour contemplated adverse action taken by an employer in circumstances where a disciplinary charge was brought other than in good faith, and contended that such was the case in relation to the commencement of the investigation against Ms Jones. In my view, placing to one side for the moment whether the commencement of the investigation constituted adverse action against Ms Jones, there is little evidence at this stage to support any claim by Ms Jones that the Carol Watson report was commissioned by QTAC other than in good faith. Indeed, as Mr Murdoch SC submitted, under the Workplace Health and Safety Act 1995 (Qld) QTAC is obliged to ensure the safety of its employees at work, which includes protection from workplace harassment. However it is also the case that the possible conflict of authority between Kimpton (1996) 65 IR 317 and United Firefighters (2003) 198 ALR 466 on the one hand, and Nixon [2008] FCA 467 ; (2008) 168 FCR 340 on the other, suggests another issue which warrants determination at a final hearing rather than at an interlocutory stage.


case_title: Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533


case_text: light of the detailed terms of cl 15, which provides for different grounds of termination and associated periods of notice, and a specific provision in cl 15.6 excluding review procedures in respect of Ms Jones' employment, it is difficult to see how the implication of term importing the rules of natural justice into the terms and conditions of employment can be justified on any of the conditions described in BP Refinery (1977) 180 CLR 266. Certainly there is clear authority to the contrary the House of Lords held in Malloch v Aberdeen Corporation [1971] 1 WLR 1578 that, absent statutory intervention, there is no rule at common law that the requirements of natural justice are incorporated into the employment relationship (per Lord Reid at 1581F-G, Lord Morris of Borth-y-Gest at 1586F and 1588D, Lord Guest at 1593G-H, Lord Wilberforce at 1595E).


case_text: the basis that Ms Jones would suffer an injury from this course of action, I consider that damages would not provide an adequate remedy. Discipline of a chief executive officer for allegedly creating a culture of fear or terror in the workplace, be such discipline in the form of termination of employment or otherwise, is a very serious matter. In my view it is likely that such a course of conduct would have a detrimental effect on Ms Jones' reputation and impose a stigma which could adversely affect her future career prospects (cf comments of Young J in Paras v Public Service Body Head of the Department of Infrastructure [2006] FCA 622 at [29] ). Issue 3 Does the balance of convenience favour the granting of an interlocutory injunction? In relation to this issue, Ms Jones submitted in summary that: In response QTAC submitted that the balance of convenience is strongly in favour of denying the interlocutory relief sought because, in summary:


case_text: note that a contrary view was expressed by Ryan J in Police Federation of Australia v Nixon [2008] FCA 467 ; (2008) 168 FCR 340 where his Honour observed that the resumption of an investigation into certain allegations against a senior police officer did not amount to an alteration of the officer's position because "alteration" in this context requires a substantive change in, or reduction of, the advantages enjoyed by the employee in that capacity. Specifically, his Honour found that: Merely to be subject to a disciplinary inquiry or investigation does not, without more, constitute such a substantive change. (at [45]) Mr Spry drew my attention to further comments of his Honour in Nixon [2008] FCA 467 ; (2008) 168 FCR 340 at [48] , namely: I consider, with respect, that amenability to a disciplinary charge brought in good faith and on a proper prima facie evidentiary basis is a normal incident of employment and does not of itself, before the laying of the charge, constitute "an adverse affection of, or deterioration in, the advantages enjoyed by the employee" in the sense used by the High Court in the passage from Patrick Stevedores ... In highlighting these comments of Ryan J in Nixon [2008] FCA 467 ; (2008) 168 FCR 340 , Mr Spry submitted that his Honour contemplated adverse action taken by an employer in circumstances where a disciplinary charge was brought other than in good faith, and contended that such was the case in relation to the commencement of the investigation against Ms Jones. In my view, placing to one side for the moment whether the commencement of the investigation constituted adverse action against Ms Jones, there is little evidence at this stage to support any claim by Ms Jones that the Carol Watson report was commissioned by QTAC other than in good faith. Indeed, as Mr Murdoch SC submitted, under the Workplace Health and Safety Act 1995 (Qld) QTAC is obliged to ensure the safety of its employees at work, which includes protection from workplace harassment. However it is also the case that the possible conflict of authority between Kimpton (1996) 65 IR 317 and United Firefighters (2003) 198 ALR 466 on the one hand, and Nixon [2008] FCA 467 ; (2008) 168 FCR 340 on the other, suggests another issue which warrants determination at a final hearing rather than at an interlocutory stage. In this case Ms Jones has established at least a sufficient likelihood of success in claiming that the commencement of the investigation by QTAC and the subsequent conduct of the investigation were prejudicial or disadvantageous to her position as an employee. Not only had QTAC commissioned an investigation by a third party into complaints and allegations against Ms Jones in circumstances where such complaints and allegations included anonymous complaints or, in the case of allegations by Mr Williams, were allegedly driven by motives relevant to his own position, but QTAC on 6 November 2009 informed all staff of the existence of the Carol Watson report and that it intended to respond to it. While QTAC did not specifically identify Ms Jones as the subject of the report, in my view the focus of the report would have been well-known to QTAC staff. Such publicity is invariably capable of damaging the reputation of an employee or adversely affecting her standing in the organisation (cf comments of Ryan J in Nixon [2008] FCA 467 ; (2008) 168 FCR 340 at [42] - [43] ). 5. Fifth, in her letter to Ms Jones dated 29 October 2009, Professor Terry responded in detail to issues raised in correspondence from Cooper Grace Ward on behalf of Ms Jones and concluded: Allegations Having considered the investigator's report and your response to that report, QTAC believes there is evidence that you have acted in a way which amounts to bullying or harassment of employees. If established, QTAC believes the conduct may amount to serious misconduct or misconduct for the purposes of your employment contract, such that QTAC is in a position to terminate your employment either summarily or on notice. The allegations are set out conveniently in the findings in the investigator's report as clarified in this correspondence and supplemented by the matters recorded in Mr William's diary entries. The diary entries (maintained by Mr Williams) contain a number of specific examples of conduct. If the events occurred in the manner recorded by Mr Williams, QTAC would consider many of them to be unacceptable. As is clear from the affidavit of Professor Terry sworn 18 November 2009 (paras 23-25), a meeting of the members of QTAC was proposed to make a decision concerning Ms Jones' employment based on the Carol Watson report and Ms Jones' responses to that report. Indeed a meeting was scheduled to take place on 17 November 2009 but postponed because of the commencement of these proceedings.


case_title: United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board (2003) 198 ALR 466


case_text: 10 January 2001, a Mr Horst Fischer was issued with a fishing permit which had a quota allocation calculated in accordance with his catch history. He challenged the Authority's decision in the Tribunal on the ground that the policy applied by the Authority in determining the quota allocation was unfair because it ignored the fact that, in practice, permits were transferred and had a capital value. Mr Fischer was successful before the Tribunal and an appeal to this Court by the Authority was dismissed ( Re Fischer and Australian Fisheries Management Authority [2002] AATA 857 ; (2002) 71 ALD 665 ; Australian Fisheries Management Authority v Graham [2003] FCA 231 ; (2003) 127 FCR 436). I will refer to those proceedings as the Fischer No 1 proceedings.


case_text: first respondent's submission that the Panel may, for the purposes of reviewing the decision, exercise a power or discretion conferred on the Authority even where the Authority did not exercise the power or discretion is correct: Australian Securities and Investments Commission v Donald [2003] FCAFC 318 ; (2003) 136 FCR 7 at 15 [29] - [30] per Kenny J. That is so, it seems, even where the original decision-maker, in reaching the decision it did, was not bound to consider the exercise of the particular power or discretion: Secretary, Department of Social Security v Hodgson [1992] FCA 338 ; (1992) 37 FCR 32. However, these principles do not assist the first respondent's argument because, for the reasons I have given, the Authority did not have the power or discretion to vary or revoke a condition attached to the first respondent's fishing permit in the course of making the decision it did.


case_title: Fischer and Australian Fisheries Management Authority, Re; [2002] AATA 857 ; (2002) 71 ALD 665


case_title: Fischer and Australian Fisheries Management Authority, Re; Tapley and Australian Fisheries Management Authority, Re; [2005] AATA 936 ; (2005) 41 AAR 417

case_text: buy-back scheme was introduced in 2001 and, under the scheme, the Commonwealth made offers to buy back fishing permits held by operators who did not wish to participate in the move from regulation by input controls to regulation by output controls. The buy-back scheme was described by Downes J in Re Fischer and Australian Fisheries Management Authority ; Re Tapley and Australian Fisheries Management Authority [2005] AATA 936 ; (2005) 41 AAR 417 , a decision I discuss below, in the following terms (at 431 [67]): "There was, however, a legal market which does provide some evidence of market value. Prior to the introduction of quotas, operators were given the opportunity to take part in a buy-back scheme. AFMA established an adjustment assistance program for those who did not wish to change to the proposed scheme of output controls. Under the scheme operators were paid $8000 per gillnet unit for gillnet permits and $25 per hook for hook permits. Forty permit holders took part in the scheme. They gave up their fishing permits but they retained the right to allocation of quota. However, the quota could not be utilised otherwise than by transfer or by acquisition of a fresh fishing permit. Under the new scheme the quota allocated could be sold to someone with a permit. Although the buy back does not amount to an open market it was voluntary and does provide some evidence of the value of permits severed from the quota entitlements about to be introduced. I note that at the time of the buy-back the Jenkinson panel had already announced its proposal that quota should be based on catch history." The first respondent was one of the forty permit holders who participated in the buy-back scheme which was known as the Southern Shark Industry Development Program. His participation in the scheme included an application by him dated 6 February 2001 to surrender his fishing permit in the Southern Shark Fishery pursuant to s 32(9) of the FM Act. On the same day, that is, 6 February 2001, the first respondent executed a Deed of Release. The application by the first respondent to surrender his permit contained the following: "I acknowledge that the effect of this surrender is that my having held a permit in the Southern Shark Fishery and South East Non Trawl Fishery will not be a consideration in any future decision by AFMA in relation to an application by me for a permit in this fishery. I further acknowledge that my having held permits in the Southern Shark Fishery and South East Non Trawl Fishery or the catch history associated with such permits, will not be a consideration in any allocation of quota decisions apart from decisions in relation to the grant of quota for school shark and gummy shark." Mr Horst Fischer and Mr Graham Tapley applied to the Tribunal for review of the quota allocations allocated to them for the 2004 calendar year. Their ground was that "the decision should have allocated quota wholly by reference to the permit itself, taking no account of catch history, or should have placed much less emphasis on catch history" ( Re Fischer and Australian Fisheries Management Authority ; Re Tapley and Australian Fisheries Management Authority [2005] AATA 936 ; (2005) 41 AAR 417 at 421 [12] per Downes J). I will refer to this proceeding as the Fischer No 2 proceeding. The first respondent was added as a party to the application for review. Downes J expressed his conclusions on the review as follows (at 438-439 [107]): "Two applications are before the Tribunal. They challenge quota allocations for the year 2004 for gummy and school shark allocated to Horst Fischer and Graham Tapley. No grounds specific to Messrs Fischer and Tapley are relied upon. Messrs Fischer and Tapley say that the quota should not be determined by reference to the quantity of shark they had caught in the past. They say that equal quota should be awarded to all operators holding the same permits. I have found that the quota system under review by which quota calculations are based partly upon equality between permits, representing the right to fish, or access entitlement, and partly upon catch history, is the preferable way to allocate quota. I have also found that the way the two have been integrated are the appropriate and preferable methods." As to the first respondent, Downes J said (at 436 [88]): "Trevor Gilmore took part in the buy-back. Under the Fischer and Tapley proposal he would not be entitled to any quota because he no longer has a permit. Persons who took part in the buy-back were informed they would be entitled to quota. The quota allocation under review will give persons such as Mr Gilmore an entitlement to quota although less than under the Jenkinson Panel scheme. The system under review seems to me to be appropriate for persons who took part in the buy-back." The events leading up to the decision made by the Authority are as follows. By a notice in the Commonwealth Gazette of 21 December 2006, the Authority invited interested persons to apply to be registered as eligible persons for the grant of SFRs for shark species under the Management Plan. The notice was given under s 24 of the FM Act. After the registration period had closed, a register of persons eligible for the grant of SFRs was finalised.


case_text: the Authority, nor the Panel, had a general discretion to depart from the provisions of the Management Plan. The provisions of the FM Act and the Management Plan are clear. Section 29(3) of the FM Act provides that the selection process is to be carried out in accordance with the procedures specified in the Management Plan. Put another way, that means in conformity with procedures which, it is envisaged by the FM Act, will be laid down in the Management Plan. Full particulars of those procedures are to be specified in the notice under s 24 of the FM Act which starts the process whereby SFRs are to be granted (see s 25(b)). The Management Plan is quite clear in the procedures it specifies. It would have been open to the makers of the Management Plan to confer a general discretion but they did not do that. Section 27 of the Management Plan deals with eligibility for registration and does so by reference to the quota units a person is authorised to take. The authorisation to take is the fishing permit. Section 28(2)(j) of the Management Plan sets out the formula to be applied and it is even more explicit. It refers to what a person was authorised to take in the fishery in accordance with a fishing permit held by the person immediately before the end of the notice period. The matter is put beyond any doubt by s 25 of the Management Plan which links the quota units which are to be translated directly to the units specified in the permit and registered in the Register. The relevant fact is the number of quota units specified in the fishing permit and Register, not what the number of quota units might be after a review as to the merits ( Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288 ; (2003) 145 FCR 1). I would also note that a general discretion to examine entitlement by examining the merits of a condition attached to a fishing permit may lead to delay and that does not appear to be contemplated by the process envisaged by ss 24-31 inclusive of the FM Act and the relevant provisions of the Management Plan. In my opinion, these considerations also lead to a rejection of the narrower submission that it was open to the Panel to exercise the power in s 32(8) of the FM Act. There is an additional reason why this submission must fail. The power to make a decision as to the availability of a grant of SFRs is dealt with in a different section of the FM Act (s 29(3)) from the power to make a decision to vary or revoke a condition attached to a fishing permit (s 32(8)). The decisions are subject to different review procedures, the first is subject to review by the Panel under s 142 and the second is subject to review by the Tribunal under s 165. The first respondent had the opportunity to challenge the quota allocation attached to his fishing permit by seeking review by the Tribunal. He may, in fact, have exercised that right by his involvement as a party in the Fischer No 2 proceeding. However, I do not need to decide that question because the important point is that the FM Act provides for a separate procedure for such challenge.


case_text: Authority may make plans of management under the FM Act. They are legislative instruments under the FM Act ( Lamason v Australian Fisheries Management Authority [2009] FCA 245 at [149] - [150] per Spender J). The process by which plans of management are made and the information or material they may contain are dealt with in ss 17-20 inclusive of the FM Act. A plan of management is relevant in this case and it is the Southern and Eastern Scalefish and Shark Fishery Management Plan 2003. The plan commenced on 1 October 2003 and it has been amended twice. I will refer to it as the Management Plan. The FM Act deals with the granting of statutory fishing rights. There are a number of steps involved in the process. In a case where a grant of a statutory fishing right is not to be conferred by auction or tender, the FM Act provides that the relevant management plan will set out the procedures for determining the person to whom a grant is to be made available (s 29(3) of the FM Act). There are a range of decisions the Authority is required to make under the FM Act. A number of them may be reviewed by the Administrative Appeals Tribunal ("the Tribunal") under the Administrative Appeals Tribunal Act 1975 (Cth). Section 165 of the FM Act grants rights of review from decisions of the Authority. The decisions which may be reviewed include a decision by the Authority under s 32 of the FM Act, that is to say, a decision to grant a fishing permit or a decision to impose a particular condition on a fishing permit.


case_text: I have said, for completeness and in case there is a further appeal, I will set out my conclusions as to the approach taken by the Panel. I bear in mind that the Panel's reasons are not to be construed minutely and with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272. The Panel was under an obligation to give each party a written statement setting out its decision and the reasons for its decision (s 160 of the FM Act). The Authority submits that the Panel was also under the obligation as to reasons contained in s 25D of the Acts Interpretation Act 1901 (Cth). I do not need to deal with that submission because I have reached a clear conclusion about the Panel's reasons without having to rely on the Authority's submission based on that section. In my opinion, the Panel did not proceed by reference to the power in s 32(8) of the FM Act. It proceeded on the basis that there was a general discretion to depart from the provisions of the Management Plan. There is no reference in the Panel's reasons to s 32(8) of the FM Act. There is no reference to the fact that the Authority did not address the power in s 32(8). There is no reference to the question whether, in those circumstances, it was open to the Panel to exercise the power in s 32(8) having regard to its powers in s 142 and s 150 of the FM Act. There is no reference to the question whether, in selecting the person to whom a grant is to be made available, it is open to the decision-maker to in effect exercise the power in s 32(8) of the FM Act before exercising the power of selection. There is no reference to the particular merits of exercising or not exercising the power in s 32(8). I have considered the matters to which the first respondent referred, including the matters in the transcript, but none of them persuade me that the Panel considered it was exercising the power in s 32(8) of the FM Act. The Panel made its decision on the basis that it was free to depart from the provisions of the Management Plan where it would be unreasonable not to do so.


case_title: Secretary, Department of Social Security v Hodgson [1992] FCA 338 ; (1992) 37 FCR 32


case_text: was a good deal of debate before me as to whether the power in s 32(8) to vary or revoke a condition attached to a fishing permit could only be exercised during the period of the permit and for a purpose related to the fishing activities undertaken, or to be undertaken pursuant to the permit. That question raises difficult issues which I will refrain from addressing because it is not necessary for me to do so. I would only say that the decision to which the first respondent referred, Shark Bay Tuna Farms Pty Ltd v Executive Director, Fisheries WA [2000] WASC 79 , is, with respect, of no real assistance because it is a decision dealing with quite a different statutory scheme (see at [30]-[41] per Wheeler J).


case_outcome: applied

case_text: The tribunal dismissed the canal incident because that incident did not result in serious harm but it never considered whether such an attack, by many persons of one faith in company who were hostile to the appellant's religious behaviour and political opinion and or membership of a social group, gave rise to a 'well founded fear'. Instead the tribunal asserted, without identifying a basis that there was nothing to suggest that there would be a risk of this behaviour being repeated in the future because, so it said, the appellant would not employ a Christian and could modify his use of language to avoid the word 'jihad' in campaigning against drug trafficking. This assertion was misconceived. As McHugh and Kirby JJ said in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 at 490-491 [43] - [44] ; and see too per Gummow and Hayne JJ at 501-502 [82]-[83]: '[43] The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many -- perhaps the majority of -- cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly. [44] Subject to the law, each person is free to associate with any other person and to act as he or she pleases, however much other individuals or groups may disapprove of that person's associations or particular mode of life. This is the underlying assumption of the rule of law.' 66 I am of opinion that the tribunal misconceived the question which it was required to address on the review under s 414(1) of the Act. It dismissed the appellant's claims of a well-founded fear by making mere assertions that, although he complied with the banishment imposed by the Jirga, the chance was remote that they might subject him or his family who remain in Peshawar to harm in the foreseeable future and that a physical assault on him by a large group in company was not persecution because he was not seriously hurt. 67 These assertions were unreasoned and unsupported because they ignored objective facts found and did not deal with the apparently credible newspaper articles which supported the claims. If the tribunal meant to say that because the appellant will accept his banishment he can have no fear, that involved the very mistake of which McHugh and Kirby JJ wrote (216 CLR at 490 [43]. 68 I have not overlooked that the issue of whether the appellant could relocate within Pakistan, which was also before the tribunal. However, that issue could arise only after a determination that he had a reason to relocate. The tribunal committed a jurisdictional error in dealing with the claims of the appellant. 69 And, in reaching its conclusion that the appellant could relocate to Karachi where he could live safely, the tribunal, first, considered in a jurisdictionally erroneous manner only his claim relating to the tribal and religious leaders of Khyber Agency and, secondly, said it had taken into account all of the evidence. In other words, the tribunal did not assess the claims based on the appellant being free to act in Karachi, as he would have acted without modifying his behaviour to eschew the realization of his fears. Hence, in the penultimate paragraph of its reasons when dealing with the canal attack, the tribunal's approach as described above, was to deal with the claim by reference to its (unfounded) anticipation that the appellant would modify his behaviour. That approach evinced the very error exposed in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 at 490-491 [43] - [44] , 501-502 [82]-[83]. 70 I am satisfied, for the reasons above, that the tribunal misconceived its task in assessing whether the appellant had a well-founded fear of persecution for one or more Convention reasons and that it did not have a good reason for rejecting those claims. That is not to say that on a rehearing the tribunal might not come to the same decision but, if it does, it must do so according to law. 71 At the hearing on 19 April 2006, I gave leave to the Minister to file and serve a note indicating: (a) what documents in the appeal book had been given to the tribunal by the appellant and which the tribunal had obtained from other sources and when each document had been received by the tribunal; (b) what further authorities the Minister relied on arising out of the course of argument at the hearing. I also gave leave to the appellant to respond to what the Minister served. On 27 April 2006 the Minister filed a supplementary submission referring to the affidavit to be filed relating to the documents and giving case references.


case_text: In a case in which the tribunal found, without making any investigation that newspaper articles were not genuine and that parts of the applicant for review's story were 'implausible', a Full Court of this court held that the tribunal had made a jurisdictional error by failing to conduct its review in accordance with the fair procedure required by the Act ( Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 at [44] , [48], [53], [64]-[66], [89]-[92] per Lee J, [108]-[119] per Tamberlin J agreeing). 47 What is even more extraordinary about the deficiency in the reasoning process in the case before me is that the second newspaper article appeared, while the appellant was in Australia, on 1 June 2004 during the hearing reinforcing the fact that the Jirga was actively engaged in persecuting the appellant and his family. Again, the tribunal made no finding about the genuineness or otherwise of this article. 48 The 1 June 2004 article repeated the public condemnation, apparently in the city of Peshawar, of the appellant and his group for the political views they had expressed. Faced with two newspaper publications 18 months apart in two apparently different newspapers, one in Arabic and the other in English, the tribunal had evidence to support the appellant's claim from apparently genuine and independent sources that he had been publicly identified in the media by a religious group for his expression of political opinion and religious practices. The tribunal gave no explanation as to why it was implausible that that which appeared in the newspaper articles could have, let alone in fact did, come to the notice of the Jirga or why it was not accepted as evidence to support the claims. And, the tribunal did this in the context of then accepting that the appellant held more liberal views than some tribal leaders in the Khyber Agency and that he may have attracted their disapproval in 2002. 53 In my opinion, no reasonable person could have expressed a reasoning process in the way that the tribunal did in order to deal with this evidence. Nor did the tribunal use its investigative powers by means of s 427(1) of the Act in the way suggested by Lee J or Tamberlin J in M164/2002 v Minister [2006] FCAFC 16 at [63] - [66] , [118] by asking the Secretary of the department to investigate the newspaper articles. Moreover, the fact that the Jirga had banished the appellant from the area in which he worked and that its decree had been publicly notified in his family's home city, indicated that there was in fact persecution for a Convention reason (political opinion) of the appellant at least in the area in which the Jirga's influence extended. Whether or not that went as far as Peshawar may be a matter that was legitimately within the area of fact-finding confined to the tribunal. But the tribunal did not consider the punishment of banishment at all in assessing whether the appellant's fear of persecution was well founded. It merely noted that he had complied with the banishment and did not return to the Peshawar area in the subsequent ten months he had remained in Pakistan following it. 54 The tribunal also dismissed as evidence of persecution for a Convention reason the fact that the appellant had been thrown into the canal for what ostensibly was a motivation, by reason of his religion, membership of a particular social group or political opinion, perceived by his attackers. The tribunal reasoned that because the appellant did not suffer any serious harm and was uninjured and ' therefore [found] that it did not amount to persecution '. The fortuity that when one is attacked by 14 or 15 people and thrown into a watercourse one might not be injured sufficiently to require medical attention belies the fact that the experience which the appellant suffered was plainly intimidatory and potentially very dangerous. A mob attack by persons in Peshawar, claiming that the appellant should not have employed a Christian or expressed certain opinions based on religion or politics, was capable of supporting his claim that the influence of the Jirga and those associated with it had extended to that city and that the appellant was a target. Instead, the tribunal dismissed its findings as to this as having no effect because the appellant fortuitously, presumably, could swim and therefore did not drown, and had not been sufficiently harmed in the attack before he was thrown into the water to stop him getting out and getting away. 56 When the tribunal said that it '... consider[ed] it somewhat implausible that the Jirga members might have even been aware ...' that the appellant's group existed, it was suggesting that the claim was somewhat 'without appearance of truth or acceptability' as Lee J explained in Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 at [44] . The tribunal gave no explanation for discounting what appeared to be newspaper articles before it in which there could have been no doubt that, if genuine, the Jirga did know of the appellant's group's existence and what is more it had sought to banish him and cause his family to account to the Jirga by reason of the appellant's and his group's activities. 57 The tribunal gave no reasons for asserting any form of implausibility of that material. It did not suggest that the newspaper reports were anything other than genuine, and if it wished to have investigated that question it could have used its powers under s 427(1)(d) of the Act to require the Secretary to 'arrange for the making of any investigation that the tribunal thinks necessary with respect to the review, and to give to the tribunal a report of that investigation ...'. (see Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 at [62] - [66] , [90]-[92] per Lee J; [108], [113]-[119] per Tamberlin J). Likewise, the assertion by the tribunal that there was no evidence that the Jirga had located or threatened the applicant's family in Peshawar or that they had any influence outside the Khyber Agency at all is flatly contradicted by the newspaper articles, especially that of 1 June 2004 and has no evidentiary support whatever. 58 The tribunal used these findings to conclude that the applicant was not a prominent political activist and was therefore capable of relocating within Pakistan on the ground that the chance would be remote, were he to return to Karachi, that he might be subjected to persecution for reasons of his political opinions by tribal or religious leaders from the remote Khyber Agency.


case_text: The tribunal's task was to consider whether the appellant had a well -ounded fear that he might be persecuted. It ignored the fact that an attack such as this following on from his being banished for publicly exposed and publicized reasons, could have provided a well founded fear of persecution. In my opinion no rational person could have failed to give consideration that there was a 'real chance' that he would suffer persecution for a Convention reason within the meaning of s 91R of the Act: see Chan v Minister for Immigration [1989] HCA 62 ; (1989) 169 CLR 379 at 389, 398, 407, 429; Applicant NADB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 ; (2005) 216 ALR 1 at 38 [160] - [161] per Hayne and Heydon JJ . The function of an administrative decision-maker is to give genuine and real consideration to the material before it. 63 In Applicant NADB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 ; (2005) 216 ALR 1 at 38 [160] - [161] Hayne and Heydon JJ said: '[160] When reviewing a refusal to grant a protection visa, the question for the tribunal must always be whether the particular applicant has a well-founded fear of persecution (as persecution is now to be understood [s 91R]) for a Convention reason. If the applicant fears persecution for a Convention reason, examining whether that fear is well founded requires the tribunal to decide whether there is a real chance that the applicant would suffer persecution for a Convention reason. As pointed out [(1989) [1989] HCA 62 ; 169 CLR 379 at 389; 87 ALR 412 at 418 per Mason CJ, CLR 398; ALR 424-5 per Dawson J, CLR 407; ALR 431-2 per Toohey J, CLR 429; ALR 448-9 per McHugh J. See also Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 at 571-5; [1997] HCA 22 ; 144 ALR 567 at 576-9; [1997] HCA 22 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.] in Chan v Minister for Immigration and Ethnic Affairs , reference to a real chance of persecution must not be substituted for, or be permitted to obscure the content of, the test prescribed in the Convention - whether an applicant holds a well-founded fear of persecution. It is sometimes convenient nonetheless to use the expression "real chance" as a shorthand reference to the nature of the factual inquiry being made. [161] The available material bearing on whether an applicant's subjective fear of persecution for a Convention reason is a fear that is well founded will vary from case to case. Usually, considering whether an applicant's fear is well founded will be assisted by considering how others, in like case to the applicant, are being, or have in the past been, treated. [Guo [1997] HCA 22 ; (1997) 191 CLR 559 at 575; [1997] HCA 22 ; 144 ALR 567 at 579; [1997] HCA 22] The difficulties of making such comparisons are obvious.'


case_text: It is important to recognize that the tribunal is the body created by the Parliament to conduct the review on the merits of decisions by the Minister or his or her delegate. The role of the court in proceedings such as this is to review whether in reaching its decision, the tribunal adhered to or departed from the procedure for the conduct of the review laid down in the Act or, to the extent that s 422B and Div 4 Pt 7 of the Act do not exclude them, the principles of common law. Nonetheless, as Brennan J observed in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 662: ' [t] he distinction between method and merits is sometimes elusive.' But, where the court is not authorized by statute to substitute its view of the merits, it must confine itself to a consideration of whether the repository of the statutory power under challenge, here the tribunal, has arrived at its decision on the merits by a procedure authorized by, and in conformity with, the enactment which conferred the power: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 222 ALR 411 at 415-416 [14] - [16] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ. If the repository so acted, even if the court disagrees with the merits of the decision so reached, the court must hold that the repository has exercised lawfully the jurisdiction which it had.


case_text: In The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22 ; (1953) 88 CLR 100 at 120 ,Dixon CJ, Williams, Webb and Fullagar JJ said: 'The inadequacy of the material is not in itself a ground for prohibition. But it is a circumstance which may support the inference that the tribunal is applying the wrong test or is not in reality satisfied of the requisite matters. If there are other indications that this is so or that the purpose of the function committed to the tribunal is misconceived it is but a short step to the conclusion that in truth the power has not arisen because the conditions for its exercise do not exist in law and in fact.' (see too Bushell v Repatriation Commission [1992] HCA 47 ; (1992) 175 CLR 408 at 421-422 per Mason CJ, Deane and McHugh JJ)


case_text: On 2 May 2006 the Minister filed an affidavit of that date by the district registrar of the tribunal, Mr Willoughby-Thomas, which I have admitted as fresh evidence pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth) in order that the court can understand what documents in the appeal book were before the tribunal and how and when they were received by it, since this was not clear from the index and other material in the appeal book. The appellant did not object to the affidavit or its contents. In my opinion the evidence was important to ensure that the proceedings do not miscarry ( CDJ v VAJ [1998] HCA 76 ; (1998) 197 CLR 172 at 200 [104] ).


case_title: Chan v Minister for Immigration [1989] HCA 62 ; (1989) 169 CLR 379


case_text: I am of opinion that by the way in which it dismissed the objective evidence provided in the two newspaper articles, the tribunal ignored relevant material (the newspaper articles) and relied on irrelevant material (namely its bare, unsupported assertions that the objective facts demonstrated in the newspaper articles were 'somewhat implausible' and gave 'no evidence' of the Jirga's activities). That was a jurisdictional error: see Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179; Secretary of State for Education and Science v Thameside Metropolitan Borough Council [1976] UKHL 6 ; [1977] AC 1014 at 1047D-E; Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222 at 233 [27] , 241 [58], 250 [97] and SZGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 431 at [33] - [38] .


case_text: In exercising its function of conducting a review of a decision under s 414(1) of the Act, the tribunal cannot simply act perfunctorily. Nor can it shut its ears or eyes so as to ignore, consciously or inadvertently, the claims made by the applicant for review (cf: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 at 394 [24] - [25] per Gummow and Callinan JJ, 406-407 [86]-[87] per Kirby J, 408 [95] per Hayne J).


case_text: In arriving at what it considers to be the correct or preferable decision ( Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18 ; (1996) 189 CLR 1 at 18) at the conclusion of its review under ss 414(1) and 415 of the Act, the tribunal must give 'proper, genuine and realistic consideration to the merits of the case' ( Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J, Zhang v Canterbury City Council [2001] NSWCA 167 ; (2001) 51 NSWLR 589 at 601 [62] where Spigelman CJ collected the authorities; Minister for Immigration v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 367 [138] per Kirby J.


case_text: As Brennan CJ, Toohey, McHugh and Gummow JJ said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272 the reasons of an administrative decision-maker are meant to inform and are not to be scrutinized upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. 42 The tribunal said that if the appellant had tried to establish his own NGO group he would not have failed to refer to it at all in his submissions to the department. Had there been no independent material to the contrary before the tribunal such a finding may have been open. 43 The tribunal said that ' it consider[ed] it somewhat implausible that the Jirga members might even have been aware of ' the existence the appellant's group. The newspaper article of 10 November 2002 was evidence that the tribunal had before it which described both him and, the group, Llawyl, by name. The tribunal made no finding that the newspaper article was not genuine or otherwise. The tribunal was required by s 430 of the Act to express reasons as founding its decision, why it was 'somewhat implausible' that the Jirga was aware of the appellant's group. Yet according to the express words of the newspaper article the Jirga, had in fact, made the very connection. The tribunal merely asserted, without referring to any basis in the evidence before it, that it, the Tribunal, found it 'implausible' or unbelievable that the Jirga made the connection it was reported to have made. This ignores the fact reported, namely that the Jirga did just that. There was no reasoning process by the tribunal for doubting this, let alone one based on any evidence.


case_title: Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222


case_text: The appellant also contended before his Honour that there had been no proper investigation of his genuine claims. His Honour noted, correctly, that the tribunal had assessed the claims and evidence which the appellant had put forward and was not obliged to conduct a further investigation into the matter, referring to Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at 21-22 [43] . His Honour also correctly dismissed the contention that the appellant should have been provided with specific details of general country information. As his Honour noted, s 424A(3)(a) of the Act does not require the tribunal to put these matters specifically to the appellant and in any event his Honour found that he was not persuaded that any relevant country information was not raised satisfactorily with the appellant during the hearing so as to afford him a fair opportunity to meet it. I am likewise not persuaded that there is anything in this ground for the reasons his Honour gave. 29 His Honour rejected a contention that the tribunal had acted in bad faith and that this could be established from the transcript of the hearing before the tribunal. As his Honour noted no transcript had been provided then, nor has it been now, and I agree with his Honour that there is no basis for concluding in the material before the Court that the tribunal acted in bad faith. 30 His Honour then dismissed the appeal. 31 The appellant's grounds of appeal are fairly broad and unspecific. He alleges that his Honour failed to find an error of law, jurisdictional error, lack of procedural fairness or to grant relief under s 39B of the Judiciary Act 1903 (Cth). Why his Honour is alleged to have failed was not articulated. The notice of appeal also asserted that his Honour erred in considering the real state of affairs of his persecution in his previous country of residence and his fear of harm. The appellant's grounds also argued that the present government of Pakistan failed to protect the people's lives which is a world-wide concern today. He also complained that he would face persecution if he returned to Pakistan as there are significant levels of violation of human rights which his Honour did not consider. The notice of appeal also refers to a number of court decisions but does not specify why any decision has particular relevance to this matter. 32 The appellant asserted that his Honour erred in failing to find that he was a member of a social group of persons working against drug traffickers and producers who acted as informants of the police. The Minister contended that this did not constitute an identifiable social group for the purposes of the Convention. I suggested in argument to counsel for the Minister that the well known anti-drugs campaigner, Donald Mackay, had been killed in Griffith, New South Wales, for his political, anti-drugs stance and that such a public position could be taken as either an expression of political opinion or membership of a social group. The Minister submitted that this would not be the case here. 33 The appellant also pointed to the way in which the tribunal had addressed his claim to have been persecuted by the tribal leaders and the Jirga who had been in Khyber Agency. He identified the two newspaper articles to which I have referred as showing that there was material before the tribunal which provided objective support for his claims. He said that there were people of strong Islamic beliefs all over Pakistan, not just in the Khyber Agency area and that the tribunal had not given rational consideration to his claim of a well-founded fear of persecution. 34 The appellant also argued that the finding that the tribunal had made, in dismissing the canal incident as evidence of persecution, was that it was unlikely to recur because he would not be an employer of a Christian and could readily use less sensitive language and avoid using the expression 'jihad' if he returned to campaign against drugs, was not a reasoning process which addressed the claim he was making. 35 Counsel for the Minister put that whatever had happened in the past, the appellant had not been found by the tribunal to have expressed the desire, were he returned to Pakistan, to employ Christians or to use provocative language in expressing his anti-drugs campaign and that therefore there was no basis upon which he could say that there was a well-founded fear that could have been found by the tribunal. The Minister relied on the findings that the appellant was not a prominent activist and that he had actually lived in Karachi for five months without difficulty. 36 I am of opinion that the tribunal's reasoning in relation to the banishment of the appellant by the tribal elders and the requirement that his family put on a defence to his activities, demonstrates that it made a jurisdictional error in dealing with the review.


case_title: Minister for Immigration v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323


case_text: On 4 May 2006, the appellant filed supplementary submissions which did not respond to or address the material filed by the Minister pursuant to my orders of 19 April 2006, but raised new matter. The Minister objected to this material. I have not taken account of those submissions in these reasons because they are outside the leave which I granted ( NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 48 ; (2004) 219 CLR 90 at 159 [191] - [192] ). 74 The appeal must be allowed. I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 9 June 2006 Appellant: In person Counsel for the Respondent: Ms RA Pepper Solicitor for the Respondent: Clayton Utz Date of Hearing: 19 April 2006 Date of last written submission: 4 May 2006 Date of Judgment: 9 June 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/724.html


case_text: So, in Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 at 223-224 [39] Gleeson CJ, Gummow and Heydon JJ referred to the inference which is open to a court exercising the function of judicially reviewing a decision of the executive government that if the decision-maker does not give any reason for his or her decision the court may be able to infer that he or she had no good reason.


case_title: Secretary of State for Education and Science v Thameside Metropolitan Borough Council [1976] UKHL 6 ; [1977] AC 1014


case_title: SZGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 431


case_title: The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22 ; (1953) 88 CLR 100


case_title: Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18 ; (1996) 189 CLR 1


case_title: Zhang v Canterbury City Council [2001] NSWCA 167 ; (2001) 51 NSWLR 589


case_text: In my opinion, the question of whether there was even an arguable case of fraud raised before the Federal Magistrate is finely balanced. Counsel for the Minister referred to the transcript of the hearing before the Federal Magistrate and reminded me of the fact that strong evidence is usually required to establish fraud. He referred to Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336. There is considerable force in the Minister's submissions. The appellant appears to have changed his story on whether his signature appears on one of the documents. More importantly perhaps is that, on the face of it, it is difficult to discern a motive for any fraudulent dealing on the part of Mr Lue. Despite these considerations, I do not think I should go so far as to conclude that on no possible view of the evidence before the Federal Magistrate could fraud be established. If the appellant's signature was falsely placed on a relevant document and part of a statement "made up", then that may go some way towards establishing fraud, although it will still be necessary for the appellant to show that the fraud (if there be fraud) has affected the process prescribed by the Act . I am not to be taken as saying that it is likely that fraud will be made out, but simply that I cannot be certain that it cannot be made out. It seems to me that the application for constitutional writs must be remitted to the Federal Magistrates Court for rehearing in accordance with these reasons. I am satisfied that the circumstances are such that a rehearing of the application is necessary. 38 The appeal must be allowed and the orders made by the Federal Magistrate on 29 January 2007 must be set aside. The application is remitted to the Federal Magistrates Court of Australia for rehearing in accordance with these reasons. I will hear the parties on the question of 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 Besanko. Associate: Dated: 13 December 2007 The Appellant appeared in person Counsel for the Respondent: Mr P S Braham Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 2 May, 6 and 27 June 2007 Date of Judgment: 13 December 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1980.html


case_text: The Magistrate said that the appellant's claim was that he was unaware of the proposed Tribunal hearing on 2 December 2004 because his agent did not tell him about it. He noted that the appellant described the agent's conduct as "wrongful" and that the written submissions filed by counsel for the appellant sought to separate the issue of wrongful conduct into fraudulent and non-fraudulent conduct. The Magistrate said that while some authorities suggested that such a dichotomy might have been a useful one in proceedings, recent decisions binding on him led to a different conclusion. The Magistrate referred to various sections in the Migration Act and decisions of this Court, including the decision of the Full Court of this Court in Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365 (" SZFDE "). The Magistrate took the view that an agent's wrongful conduct, whether fraudulent or not, in failing to inform an applicant of a hearing of the Tribunal of which notification had been given did not give rise to jurisdictional error. The Federal Magistrate did not make an express finding to the effect that the appellant's agent did not advise him of the proposed hearing before the Tribunal because he said that even if that were so it did not affect the result. He said that the outcome of the application for constitutional writs in relation to the decision of the Tribunal did not turn on whether or not the agent's conduct in not informing the appellant of the proposed Tribunal hearing was fraudulent. The Magistrate said: Therefore, the Tribunal was entitled under the Act to proceed to a determination notwithstanding that the applicant may not have been informed by his agent of the Tribunal's proposed hearing, with the result that the Tribunal's decision is not affected by jurisdictional error on this account. 25 As I have said, the Federal Magistrate did not find it necessary to make findings as to whether the appellant was aware of the proposed hearing of the Tribunal or whether, assuming he was not aware, that came about as a result of fraud or negligence or mistake on the part of Mr Lue.


case_text: The respondent in SZFDE sought and obtained from the High Court of Australia special leave to appeal against the decision of the Full Court of this Court. The appeal was heard on 24 May 2007 and, on 2 August 2007, the High Court handed down its decision. The Court reversed the decision of the Full Court of this Court: SZFDE v Minister for Immigration and Citizenship (2007) 81 ALJR 1401. 28 The appellant submitted that the Federal Magistrate erred in concluding that the Tribunal was entitled to proceed to determine the application for review even though he (the appellant) had not been informed of the proposed hearing of the Tribunal. 29 For his part, the Minister sought an extension of the time within which to file and serve a notice of contention. On 6 June 2007 I granted that extension of time. The notice of contention is in the following terms: The first respondent contends that the judgment of Federal Magistrate Cameron should be affirmed on the following grounds (not being grounds relied upon by the court below): 1. There was no evidence before Federal Magistrate Cameron upon which the Court could have found that the applicant's adviser had fraudulently failed to inform the applicant of the hearing before the Tribunal; and 2. Federal Magistrate Cameron should have rejected the applicant's contention that his adviser had fraudulently failed to inform the applicant of the hearing before the Tribunal.


case_text: On the authorities as they stood at the time of the Federal Magistrate's decision, his decision was correct: SZFDE ; SZGQL v Minister for Immigration and Multicultural Affairs [2006] FCA 1420.


case_text: I do not accept this submission. Clearly the Probiotec parties were a party to the litigation. The expression "litigation" in this case should be read as a reference to both the infringement and validity aspects of the proceeding. It should not be confined simply to the cross claim alleging invalidity brought by the NSI parties. They denied not only infringement but also invalidity. They gave an undertaking inter partes not to carry out relevant conduct, but this was a conditional undertaking in that it was made without admissions and was only to continue until the outcome of the proceedings, and even then only in the event that they were unsuccessful in their defence. In my view, the principles in Knight are not relevant to the present circumstances. When looked at in the context of the overall litigation, the Probiotec parties intended to and did take advantage of the invalidity claim and non-infringement submissions advanced on behalf of the NSI parties. Looking at the substance of the position taken by the Probiotec parties, the non-infringement defence in relation to the patent involves by its nature, substance and effect a consideration of the patent's validity in a real sense: see Baygol Pty Ltd v Huntsman Chemical Co Australia Pty Limited t/a RMAH [2004] FCA 1248 at [27] - [28] ; and Farmitalia Carlo Erba SrL v Delta West Pty Ltd (1994) 28 IPR 336 at 339 and 341. The end result of this consideration is that, although they took no active part in argument or in the conduct of the proceeding, the Probiotec parties, in denying infringement and asserting invalidity in the event that infringement was found to have been made out, were content to allow the NSI parties to put the case and to rely on the same submissions thus advanced. When regard is had to the limited and conditional nature of the position taken by them in the undertaking and in not withdrawing the pleading as to invalidity, the approach of the Probiotec parties to the litigation was not one simply of a submitting party. The University parties therefore are entitled to their costs against the Probiotec parties, including costs on the question of invalidity and infringement.


case_title: Farmitalia Carlo Erba SrL v Delta West Pty Ltd (1994) 28 IPR 336


case_text: Although the discretion of the Court to award costs is a broad one, it must be exercised judicially and unless special circumstances are shown a successful litigant will receive costs: see Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 per Toohey J. In the present case the question is whether there are special circumstances in relation to the Probiotec parties which displace that general rule.