case_title: Ditfort, Re; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347

case_text: Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 at 370, Gummow J said that: "... there will be no "matter" if the plaintiff seeks an extension of the court's true function into a domain that does not belong to it, namely the consideration of undertakings and obligations depending entirely on political sanctions. Such non-justiciable issues include agreements and understandings ... between the Australian and foreign governments... Those issues do not give rise to "matters" in the sense necessary for the exercise of federal jurisdiction". This passage was referred to with approval by Black CJ and Hill J in Petrotimor Companhia de Petroleos SARL v Commonwealth [2003] FCAFC 3 ; (2003) 126 FCR 354 at 373.


case_outcome: referred to

case_text: s 31A was, as Lindgren J held in White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 at 310, designed "to lower the bar for obtaining summary judgment" from the level that had been fixed by the High Court in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91-2 and General Steel Industries Inc. v Commissioner for Railways (N.S.W.) [1964] HCA 69 ; (1964) 112 CLR 125 at 128-130. Although the standard which must be met by a respondent who seeks summary judgment under the FCA Act has been expressed in a variety of different ways, where, as here, an application is made under s 31A, the Court is required to give close attention to the statutory language and to apply that test to the exclusion of all others: see PZ Cussons (International) Ltd v Rosa Dora Imports Pty Ltd [2007] FCA 1642 ; (2007) 74 IPR 372 at 375 (per Kenny J).


case_outcome: followed

case_text: Hinchcliffe v Commissioner of Australian Federal Police [2001] FCA 1747 ; (2001) 118 FCR 308 , the applicants had complained to the AFP that third parties had contravened certain legislative provisions. AFP officers examined the circumstances and sought advice from the Director of Public Prosecutions. On being advised that the material disclosed no offence, the AFP advised the applicants that it would take no further action. The applicants applied for writs of mandamus to require the AFP to investigate their complaint. The application was summarily dismissed by Kenny J on the ground that it was bound to fail. This was because the AFP was not under any relevant duty and, in any event, no tenable basis had been shown for the allegation that the AFP officers were in breach of any duty.


case_text: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372 , Gordon J noted (at 406) that, 31A was introduced in order to extend "the power of the court to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases". The section empowers the Court to give summary judgment in favour of a respondent if it is satisfied that the applicant "has no reasonable prospect of successfully prosecuting the proceeding". This will be the case even if the application cannot be characterised as either hopeless or bound to fail.


case_text: which are not justiciable and fall outside the proper domain of federal courts include "issues arising out of international relations": see Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274 at 307 (per Wilcox J, with whom Bowen CJ agreed).


case_outcome: cited

case_text: width of the discretionary powers vested in police officers was emphasised by Madgwick J in O'Malley v Keelty [2005] FCA 861 ; (2005) 148 FCR 170. His Honour said (at 179-180) that: "Organising and assigning priorities in a modern police force are patently complex, difficult, and likely politically controversial matters. Courts should exercise very considerable restraint before intervening in such an area ... [A] court cannot and should not compel a police force to investigate every breach of the law. There are many mysteries in this world. Some of them involve possible commissions of crime. It is not, however, the responsibility of police officers to investigate all of them. Indeed, the role of the police is not to investigate whether, at large, there has been a breach of the law. Rather, their duty is to investigate whether there has been a breach of the law for which an identifiable person might be convicted if prosecuted. The requirements of the AFP Case Categorisation and Prioritisation Model are consistent with this view. I adhere to what I said in Scott (at [69]): except in the context of a coronial inquiry, one must allow that, if there appears to be no serious prospect of obtaining a conviction, it may be a quite reasonable decision, even in a very serious case, by the relevant police officer(s) not to expend resources or further resources on an investigation. Among other matters militating against the prospect of obtaining a conviction will often be the lapse of time since the alleged offence" (emphasis added).


case_title: Petrotimor Companhia de Petroleos SARL v Commonwealth [2003] FCAFC 3 ; (2003) 126 FCR 354


case_title: PZ Cussons (International) Ltd v Rosa Dora Imports Pty Ltd [2007] FCA 1642 ; (2007) 74 IPR 372


case_text: Court has jurisdiction, under s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act "), to deal with a proceeding in which the writ of mandamus is sought. The writ is available to compel a public official to perform an act "which the applicant is entitled to have done, and without the doing of which he cannot enforce or enjoy some right which he possesses": R v Arndel [1906] HCA 7 ; (1906) 3 CLR 557 at 566-7 (per Griffith CJ). Put more simply, the writ of mandamus requires a public official to perform a public duty. The applicants can succeed against the AFP only if the AFP has a duty to commence criminal proceedings against the named individuals for the offences which are nominated in the application. I put to one side issues such as whether the AFP, as distinct from individual police officers, can be said to have a duty to initiate prosecutions and whether the powers of the Director of Public Prosecutions might impinge on any common law power a police officer might have had to initiate criminal proceedings. I also put to one side the question of the standing of the applicants to apply for an order that the AFP commence criminal proceedings against persons who are not alleged to have engaged in criminal conduct against any of the applicants. There is a further question, to which I will return, about the effect of the exercise of ministerial discretion in the decision-making processes which must precede the laying of charges of genocide and crimes against humanity.


case_text: R v Commissioner of Police of the Metropolis; Ex parte Blackburn [1968] 2 QB 118 at 136, Lord Denning MR said that: "Although the chief officers of police are answerable to the law, there are many fields in which they have a discretion with which the law will not interfere. For instance, it is for the Commissioner of Police of the Metropolis, or the chief constable, as the case may be, to decide in any particular case whether inquiries should be pursued, or whether an arrest should be made, or a prosecution brought. It must be for him to decide on the disposition of his force and the concentration of his resources on any particular crime or area. No court can or should give him direction on such a matter . He can also make policy decisions and give effect to them, as, for instance, was often done when prosecutions were not brought for attempted suicide" (emphasis added). Her Honour quoted with approval the observations of Lord Denning MR in Blackburn . She held (at 320) that: "I accept that, where a member of the AFP receives a complaint from a member of the public, the member discharges his or her duty to enforce the law, if: (1) he or she gives due and proper consideration to the question whether and in what way an initial inquiry into the complaint should be made; and (2) he or she acts appropriately upon the view which he or she has formed". If the police officer acts consistently with these requirements and declines to investigate a complaint, it follows, as her Honour held, that no duty is imposed on the officer to consider instigating a prosecution against any alleged miscreant. When the applicants attended to make their complaint to the AFP they were received by Federal agents Mr Nicolas Read and Mr Wade Howell. The group met for approximately half an hour during which time the applicants made various allegations of conduct that they alleged constituted criminal offences under Australian law. On the following day two Federal agents were assigned by Mr Read to consider the allegations. The speed with which the allegations were examined was unusual. Federal agent Read considered that the assessment of the allegations should be accorded a high priority because of the seriousness of the offences which had, allegedly, been committed. After a detailed consideration by his officers, Federal agent Read concluded that the allegations and materials provided by the applicants did not disclose any Commonwealth offence. In those circumstances he determined that no further action should be taken and the applicants were so advised. The applicants, however, seek to turn the expedition with which the matters raised by them were considered to their advantage. They submit, without evidence, that the allegations could not properly have been considered in a little over a day. It is to be remembered that all that was considered during that time by the two officers was whether it appeared that offences might have been committed against Australian law. This judgment fell to be made on the basis of the information supplied by the applicants. There is no reason to doubt that the officers gave proper consideration to the question of whether an initial inquiry should be instituted into the complaints made by the applicants. A bone fide view was formed that no further action should be taken. In these circumstances no further duty, enforceable by a writ of mandamus, arose. There is another obstacle in the path of the applicants. The offences of genocide and crimes against humanity are provided for in Division 268 of Chapter 8 of the Criminal Code Act 1995 (Cth) ("the Code"). Section 268.121 of the Code provides that proceedings for an offence under Division 268 must not be commenced without the written consent of the Attorney-General. Thus, even if the AFP, on completion of a full investigation, decided that there was evidence that one or both of these offences had been committed, it could not institute criminal proceedings against anybody in the absence of the Attorney-General's consent. A writ of mandamus could not compel the AFP to do so. The applicants draw attention to the provisions of s 268.121(3) which permit a person to be arrested and charged with an offence under the Division before the necessary consent has been given. The applicants contend that AFP officers could be ordered by the Court to arrest and charge the alleged offenders without waiting for the Attorney-General's written consent. That is a doubtful proposition but one which need not be further considered. On the material before them, the Federal agents were in no position to arrest or charge anybody and could not be compelled to do so. In any event an arrest or the act of laying charges is not the same thing as commencing criminal proceedings. In the context of s 268.121, a distinction is drawn between arrest and charging on the one hand and the commencement of criminal proceedings on the other. The latter step involves the initiation of the curial processes which lead to a trial. It can be taken only with the consent of the Attorney-General. The application seeks the issue of a writ of mandamus requiring the AFP to begin such proceedings, not requiring the charging or the arrest of alleged offenders.


case_text: Thorpe v Commonwealth of Australia (No 3) [1997] HCA 21 ; (1997) 144 ALR 677 , the plaintiff commenced a proceeding in the High Court seeking declarations that the Commonwealth owed certain obligations to Aboriginal people, that it ought to move the United Nations General Assembly for an advisory opinion from the International Court of Justice as to the legal rights of Aboriginal people and that the government should negotiate with him about the terms of the foreshadowed resolution of the United Nations General Assembly. Kirby J set aside the plaintiff's written statement of claim for want of jurisdiction. In dealing with the declaration which related to the securing of a resolution of the General Assembly of the United Nations, Kirby J said (at 690) that what the plaintiff was: "... seeking ... is that this court should set out to control the way in which the Commonwealth conducts Australia's international relations ... [I]n no case that could be cited, nor any that I have discovered in my own researches, has this court purported to intrude in such a way in the conduct of Australia's international activities. The reason why no such case could be found is plain enough although the explanation may be advanced in various ways. It might be said that the subject matters of the declarations are not the kind of "immediate right, duty or liability" grounded in a legal norm which would present a "matter" to enliven the jurisdiction of this court under the Constitution . This was the Commonwealth's primary argument. But it might also be said that the issues presented by the declarations lacked "judicially discoverable and manageable standards for resolving" a justiciable issue. Traditionally in this country, as under like constitutional provisions in the United States, the courts have been extremely reluctant to pass upon the conduct of international relations". Later in his reasons, his Honour said (at 692) that if a plaintiff invites a federal court to perform functions other than those properly exercisable by the judicial branch of government: "... it matters little in practical terms whether the court, facing an objection, rules that it lacks jurisdiction for want of a "matter" engaging its powers, or that it says that any such "matter" would be non-justiciable. In either event, the court's duty is plain. It should stop the proceedings forthwith. It will thereby send the parties to the other branches of government, or to other public fora, in which they can make their complaint". The applicants, in the present case, invite the Court to direct the Commonwealth government to adopt and prosecute a particular policy which is designed to influence the conduct of another sovereign government. They wish the Commonwealth to engage other sovereign governments and international institutions in an attempt to have the Indian government act in a particular way. The conduct of Australia's international relations falls within the province of the executive government. In the absence of legislative restraint it is a matter for the government to determine the issues which it chooses to raise with foreign governments and the manner in which it will pursue those issues with foreign governments. The choices which the government makes in dealing with international relations are a matter for it and are not justiciable. They do not give rise to "matters" with which the judicial branch may deal. In my view, the Court thus lacks jurisdiction to entertain this part of the applicants' case. The applicants applied for protection visas under the Migration Act 1958 (Cth) ("the Migration Act "). A delegate of the Minister rejected their applications. They appealed, unsuccessfully, to the Refugee Review Tribunal. In this proceeding they apply for a writ of mandamus to direct the Immigration Department to grant the visas which the Minister's delegate has already refused to grant. Under the Migration Act , visas are granted by the Minister or a delegate of the Minister. The Immigration Department has no power to grant visas. The Department has no duty enforceable by a writ of mandamus or otherwise to issue protection visas to the applicants. For that reason alone the application is bound to fail. The application would also have failed had it been directed to the Minister or a delegate of the Minister. This is because the application would necessarily involve the Court directing the Minister or a delegate how to exercise power conferred on them under the Migration Act , and to do so in a way in which they, having considered the applicants' applications, have determined not to be appropriate. This would be tantamount to judicial review of the decision-making process.


case_title: White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298


case_title: Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685

case_text: relation to Ms George's application for a stay of his Honour's Orders, while I note the principles arising from such cases as Cambridge Credit Corporation (1985) 2 NSWLR 685 brought to my attention by the first, second, third and fourth respondents, I consider that a refusal to order a stay would substantially frustrate any success Ms George would have should her appeal to the Full Court be successful. Accordingly, it is for this reason that I am prepared to exercise my discretion in favour of Ms George and order a stay of the orders of his Honour of 9 February 2009 numbered 1, 2, 3, 4, 5, 6, 9 and 10 pending delivery of judgment in Ms George's appeal. I am not prepared to make an Order in the terms sought by Ms George in para 2 of her amended Notice of Motion as has been observed by both Dowsett J and myself during the course of these proceedings, if there is an error in the decision of the Federal Magistrates Court it is for the Federal Court to review on appeal. Further, as I indicated to the parties at the hearing before me, I am not prepared to make the orders sought by Ms George in paras 4, 5, 6 and 7 of her amended Notice of Motion before me (TS 5 March 2009 86 ll 28-30). Instead, the hearing of those paragraphs is adjourned to a date to be fixed. Finally, I do not consider that it is appropriate that I make an Order in the terms sought by Ms George in para 3 of her amended Notice of Motion, being an order by which she apparently seeks recognition of her reliance on certain material and on Supreme Court Orders. Nor do I consider it either appropriate or desirable that I should make an order in the terms sought by Ms George in para 8 of her amended Notice of Motion, being referable to proceedings in the Supreme Court of Queensland. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 25 March 2009 Solicitor for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Mr K Kelso Solicitor for the First Respondent: Holman Webb Counsel for the Second and Third Respondents: Mr R Galloway Solicitor for the Fourth Respondent: E Abernethy of Thynne & Macartney Solicitor for the Fifth Respondent: The Respondent was given leave not to appear Date of Hearing: 10 March 2009 Date of Judgment: 25 March 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/264.html


case_title: Cook's Construction Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] QCA 322


case_text: appeal from orders of a Federal Magistrate pursuant to s 17A Federal Magistrates Act 1999 (Cth), being a summary judgment of the Federal Magistrates Court (cf observations of Buchanan J in Croker v Commonwealth of Australia [2007] FCA 1593) , requires leave of this Court pursuant to s 24(1A) Federal Court of Australia Act 1976 (Cth). In the amended notice of motion the applicant seeks the following orders: Under Federal Court Act 1976 s 29(1) request a stay on court orders dated 9 February 2009 numbered 1, 2, 3, 4, 5, 6, 9, 10 pending the outcome of the Supreme Court matter file number 3747/2008. Request a stay on hearing the notice of appeal dated 18 February 2009 pending the outcome of the Supreme Court matter file number 3747/2008. The appellant relies upon affidavits dated 5 March 2009, 14 February 2009 in the name of Lauren Kay George for the above matter and Supreme Court Orders dated 18 February 2009 and transcripts dated 9 February 2009 and 18 February 2009. The appellant makes application to the court under ss 303 , 29 , 178 , 30 (1)(a)(b), 149 (4), 149J of the Bankruptcy Act 1966 . The appellant be deemed to have been discharged from bankruptcy on 25 February 2009 under s 149(4) of the Bankruptcy Act 1966 .


case_outcome: applied

case_text: relevant to the exercise of discretion by the Court in granting leave to appeal are: whether the judgment the subject of the appeal was attended by sufficient doubt to warrant it being reconsidered; and whether substantial injustice would result if leave were refused, supposing the decision to be wrong. ( Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 , at 398 399, Telstra Corporation Ltd v AAPT Ltd [1997] 38 IPR 539 at 542, Harrington v Rich [2008] FCAFC 61 at [25] .)


case_outcome: related

case_text: the application Ms George seeks leave to appeal from the judgment of a Federal Magistrate of 9 February 2009 and his Honour's Orders 1, 2, 3, 4, 5, 6, 9 and 10 ( Fletcher v George & Ors (No 6) [2009] FMCA 69). The orders of the Federal Magistrate in those proceedings were made pursuant to s 17A Federal Magistrates Act 1999 (Cth), which provides: (1) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is prosecuting the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding. (2) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. (4) This section does not limit any powers that the Federal Magistrates Court has apart from this section.


case_title: Harrington v Rich [2008] FCAFC 61


case_title: Telstra Corporation Ltd v AAPT Ltd [1997] 38 IPR 530


case_text: To the extent that the appellants are submitting that the Tribunal was obliged to have further discussion with them or to provide another hearing, the Tribunal was under no such obligation by reason of s 424A(1) of the Act ( SZBYR v Minister for Immigration & Citizenship (2007) 185 ALR 609, SZJHL v Minister for Immigration and Citizenship [2007] FCA 1713). To the extent that the appellants are saying that the Tribunal had an obligation to notify them of its thought processes after receipt of the comments pursuant to the s 424A(1) letter, the Tribunal was under no obligation to do so ( SZBYR ; VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123).


case_title: SZJHL v Minister for Immigration and Citizenship [2007] FCA 1713


case_outcome: considered

case_text: The appellants applied for a review of the Tribunal decision ( SZKSO & Ors v Minister for Immigration [2007] FMCA 1413). The appellants relied on a number of grounds including a claim of bias on the part of the Tribunal and a failure to comply with s 424A of the Act. 7 Federal Magistrate Scarlett rejected the appellants' claim that the Tribunal had made its finding with bias (at [21]). His Honour noted that the basis of that claim was that the Tribunal had completely ignored independent evidence submitted to it but observed that this does not constitute bias (at [21]). His Honour noted that it was open to the Tribunal to prefer the evidence of the expert to the evidence of the first appellant (at [19]). 8 In dealing with an alleged failure by the Tribunal to comply with its obligations under s 424A of the Act, the Federal Magistrate concluded that s 424A had been complied with and that that ground failed (at [22]). 9 His Honour also dismissed what appeared to be a claim that the appellants had not been provided with a hearing as required by s 425 of the Act. As his Honour noted, there was no transcript to show that the evidence of the appellants was unduly curtailed or truncated or that they were prevented from anything (at [23]). 10 The appellants appeared in person, assisted by an interpreter, and provided particulars of the bases or the grounds of appeal upon which they relied. The notice of appeal contains three grounds, that the Federal Magistrate: 1. erred in law by incorrectly assessing the appellants' claim that the Tribunal ignored or failed to consider their claim, ignored relevant materials, misstated or misconceived the claim, made a mistake in relation to an important finding of fact and incorrectly assessed the first appellant's credibility; 2. was wrong in finding that the Tribunal considered the appellants' claims properly when the Tribunal made its finding with bias and ignored evidence put to it; and 3. was wrong in finding that the Tribunal complied with its obligations under s 424A of the Act. 11 Before me, the first appellant explained that the appellants were not saying that the Tribunal had failed to consider a claim that had been made to it but rather that the Tribunal did not believe what the first appellant had said. A decision on credibility is a matter for the Tribunal. This ground of appeal does not succeed. 12 The appellants did not point to any matter which the Tribunal ignored other than to assert that the Tribunal preferred the evidence of the expert, which it should not have done because the expert was not familiar with grapes in China. The first appellant also asserted that, while in the response to the s 424A letter the appellants were unable to provide further information about the grape type that they said that they had grown, this information could easily have been found on the internet. The appellants complained that the Tribunal had not found it.


case_title: VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123


case_text: By virtue of s 43 of the Federal Court of Australia Act 1976 (Cth), the Court may make orders as to costs. The power, which is discretionary, must be exercised judicially: see Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 234 per Black CJ and French J. Within this general discretion, it is accepted that costs ordinarily follow the event, with the result that a successful litigant receives costs in the absence of special circumstances justifying some other order: see Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 234 per Black CJ and French J.


case_text: The usual rule is that costs are payable on a party and party basis, unless the circumstances of the case warrant a departure from the normal course: see Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 (" Colgate-Palmolive ") at 233 per Sheppard J and the Federal Court Rules (Cth), O 62. In that case, Sheppard J considered the circumstances in which indemnity costs might be awarded, referring, amongst other things, to "misconduct that causes loss of time to the Court and to other parties" although, as his Honour concluded, "[t]he question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis": see Colgate-Palmolive at 233-234. The Full Court reconsidered the appropriateness of an indemnity costs award in Re Wilcox: Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 (" Re Wilcox ") at 152-153 per Black CJ and 156-158 per Cooper and Merkel JJ. In Re Wilcox , at 156-157, Cooper and Merkel JJ reiterated Sheppard J's approach, saying: In order to exercise the discretion [regarding costs] judicially the following principles have been accepted by the Court as applicable: (a) the Court ought not to depart from the rule that costs be ordered on a party and party basis unless the circumstances of the case warrant the Court in departing from the usual course; (b) the circumstances which may warrant departure from the usual course arise as and when the justice of the case so requires or where there may be some special or unusual feature in the case to justify the court in departing from the usual course; (c) whilst the circumstances in cases in which indemnity costs have been ordered offer a guide, the question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for costs other than on a party and party basis. See also Abbott v Random House Australia Pty Ltd [1999] FCA 1540 at [5] per Beaumont, Miles and Drummond JJ, quoting the above passage with approval. Even more recently, the Full Court in Hamod v New South Wales [2002] FCA 424 ; (2002) 188 ALR 659 at 665 (per Gray J, with whom Carr and Goldberg JJ agreed) explained the basal principle for an award of indemnity costs in the following terms: Indemnity costs are not designed to punish a party for persisting with a case that turns out to fail. They are not awarded as a means of deterring litigants from putting forward arguments that might be attended by uncertainty. Rather, they serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the Court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs. 7 A perusal of other cases decided in this Court, including in recent times, shows that these principles are regularly applied. In particular, the Court may award indemnity costs in respect of misconduct that causes loss of time to the Court and to other parties: see Tetijo Holdings Ltd v Keeprite Australia Pty Ltd [1991] FCA 187 per French J, referred to with approval in Colgate-Palmolive at 233 and Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189 (" Ugly Tribe ") at [7] per Harper J. In Xat Ky v Australvic Property Management Pty Ltd (No 2 ) [2007] FCA 1785 , Middleton J awarded indemnity costs to prevent the plaintiffs being out of pocket where "there was a considerable loss of time, inconvenience to the parties and the Court, and a wilful disregard to established law in the attempts to re-open the case ... and in the application for a restraining order": see [12]-[13], [29].


case_text: The usual rule is that costs are payable on a party and party basis, unless the circumstances of the case warrant a departure from the normal course: see Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 (" Colgate-Palmolive ") at 233 per Sheppard J and the Federal Court Rules (Cth), O 62. In that case, Sheppard J considered the circumstances in which indemnity costs might be awarded, referring, amongst other things, to "misconduct that causes loss of time to the Court and to other parties" although, as his Honour concluded, "[t]he question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis": see Colgate-Palmolive at 233-234. The Full Court reconsidered the appropriateness of an indemnity costs award in Re Wilcox: Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 (" Re Wilcox ") at 152-153 per Black CJ and 156-158 per Cooper and Merkel JJ. In Re Wilcox , at 156-157, Cooper and Merkel JJ reiterated Sheppard J's approach, saying: In order to exercise the discretion [regarding costs] judicially the following principles have been accepted by the Court as applicable: (a) the Court ought not to depart from the rule that costs be ordered on a party and party basis unless the circumstances of the case warrant the Court in departing from the usual course; (b) the circumstances which may warrant departure from the usual course arise as and when the justice of the case so requires or where there may be some special or unusual feature in the case to justify the court in departing from the usual course; (c) whilst the circumstances in cases in which indemnity costs have been ordered offer a guide, the question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for costs other than on a party and party basis. See also Abbott v Random House Australia Pty Ltd [1999] FCA 1540 at [5] per Beaumont, Miles and Drummond JJ, quoting the above passage with approval. Even more recently, the Full Court in Hamod v New South Wales [2002] FCA 424 ; (2002) 188 ALR 659 at 665 (per Gray J, with whom Carr and Goldberg JJ agreed) explained the basal principle for an award of indemnity costs in the following terms: Indemnity costs are not designed to punish a party for persisting with a case that turns out to fail. They are not awarded as a means of deterring litigants from putting forward arguments that might be attended by uncertainty. Rather, they serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the Court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs.


case_title: Abbott v Random House Australia Pty Ltd [1999] FCA 1540


case_title: Hamod v State of New South Wales [2002] FCA 424 ; (2002) 188 ALR 659


case_outcome: approved

case_text: A perusal of other cases decided in this Court, including in recent times, shows that these principles are regularly applied. In particular, the Court may award indemnity costs in respect of misconduct that causes loss of time to the Court and to other parties: see Tetijo Holdings Ltd v Keeprite Australia Pty Ltd [1991] FCA 187 per French J, referred to with approval in Colgate-Palmolive at 233 and Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189 (" Ugly Tribe ") at [7] per Harper J. In Xat Ky v Australvic Property Management Pty Ltd (No 2 ) [2007] FCA 1785 , Middleton J awarded indemnity costs to prevent the plaintiffs being out of pocket where "there was a considerable loss of time, inconvenience to the parties and the Court, and a wilful disregard to established law in the attempts to re-open the case ... and in the application for a restraining order": see [12]-[13], [29]. 8 The same principles with regard to indemnity costs are applied in other Australian courts. In Ugly Tribe , Harper J referred (at [7]) to the need for special circumstances to justify departure from the usual rule, instancing "[c]onduct which causes loss of time to the Court and to other parties" and "[t]he failure until after the commencement of the trial, and without explanation, to discover documents the timely discovery of which would have considerably shortened, and very possibly avoided, the trial". As his Honour said, however, "[t]he categories of special circumstances are not closed". As Mason P, with whom Meagher JA and Clarke A-JA agreed, said in Rosniak v Government Insurance Office (1997) 41 NSWLR 608 at 616, "the court requires some evidence of unreasonable conduct, albeit that it need not rise as high as vexation" before departing from the usual party and party costs order.


case_text: A perusal of other cases decided in this Court, including in recent times, shows that these principles are regularly applied. In particular, the Court may award indemnity costs in respect of misconduct that causes loss of time to the Court and to other parties: see Tetijo Holdings Ltd v Keeprite Australia Pty Ltd [1991] FCA 187 per French J, referred to with approval in Colgate-Palmolive at 233 and Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189 (" Ugly Tribe ") at [7] per Harper J. In Xat Ky v Australvic Property Management Pty Ltd (No 2 ) [2007] FCA 1785 , Middleton J awarded indemnity costs to prevent the plaintiffs being out of pocket where "there was a considerable loss of time, inconvenience to the parties and the Court, and a wilful disregard to established law in the attempts to re-open the case ... and in the application for a restraining order": see [12]-[13], [29].


case_text: The same principles with regard to indemnity costs are applied in other Australian courts. In Ugly Tribe , Harper J referred (at [7]) to the need for special circumstances to justify departure from the usual rule, instancing "[c]onduct which causes loss of time to the Court and to other parties" and "[t]he failure until after the commencement of the trial, and without explanation, to discover documents the timely discovery of which would have considerably shortened, and very possibly avoided, the trial". As his Honour said, however, "[t]he categories of special circumstances are not closed". As Mason P, with whom Meagher JA and Clarke A-JA agreed, said in Rosniak v Government Insurance Office (1997) 41 NSWLR 608 at 616, "the court requires some evidence of unreasonable conduct, albeit that it need not rise as high as vexation" before departing from the usual party and party costs order.


case_title: Tetijo Holdings Ltd v Keeprite Australia Pty Ltd [1991] FCA 187


case_text: Courtney v Medtel Pty Ltd [2002] FCA 957 ; (2002) 122 FCR 168 at [48] , Sackville J observed that there are good reasons to give s 33ZF a generous interpretation. His Honour did not refer expressly to the remarks of Wilcox J in McMullen , however the passage to which I have referred from McMullen was approved by Tamberlin J in Johnstone v HIH Limited [2004] FCA 190 at [103] - [104] .


case_text: seems that the authorities to which I referred in Taylor v Telstra suggest that there might be some slight difference of emphasis between the approach taken by Goldberg J in Williams v FAI Home Security Pty Ltd (No 4) [2000] FCA 1925 ; (2001) 180 ALR 459 and Darwalla Milling Co Pty Ltd v F Hoffmann-La Roche Limited (No 2) (2007) 236 ALR 322. However, both of these approaches indicate that the essential question is whether the settlement is fair and reasonable having regard to the claims made by group members who will be bound by the settlement.


case_text: Taylor v Telstra Corporation Ltd [2007] FCA 2008 at [56] to [66], I endeavoured to set out the principles which apply to the exercise of the power under s 33V to approve a settlement. The principles to which I referred were applied by Stone J in Dorajay Pty Ltd v Aristocrat Leisure Limited [2009] FCA 19 at [10] . I will apply those principles in considering the present application.


case_title: Johnstone v HIH Limited [2004] FCA 190


case_text: opt-out requirements of Part IVA are an important element of the scheme laid down by that part of the Act. In King v GIO Australia Holdings Ltd [2001] FCA 270 at [15] , a Full Court observed that these requirements ensure that group members can make an informed decision about their rights. The Full Court said at [15] and [16] that the opt-out notice must not mislead group members and must be expressed with clarity and simplicity. Section 33Y provides for the Court to approve the form and content of an opt-out notice. Section 33Y(2) would ordinarily also require the Court to approve the form and content of the notice to group members advising them of the settlement. Section 33ZB(b) provides that persons who exercise the right to opt out of a proceeding under s 33J are not bound by a judgment given in a representative proceeding.


case_text: at the time of the mediation, the company appeared to have limited financial capacity. As I have said, it was uninsured. Its last trading price was $0.01, which is the lowest price that can be quoted on the ASX. This is a matter of considerable importance in determining whether to exercise the power. I will refer later to the similar circumstances that arose in Lopez v Star World Enterprises Pty Ltd [1999] FCA 104. The terms of settlement provide that the parties to the agreement are the applicants in each proceeding, the respondents and the group members referred to in each of the proceedings. Clause 2 of the agreement provides the essential terms of the settlement, which are that there is to be a verdict for the respondents, and the respondents are to pay to the applicants the sum of $3 million in full and final settlement of both sets of proceedings. In Lopez , Finkelstein J referred at [16] to the onerous task involved in the consideration of an application. As I mentioned earlier, the application in Lopez has some striking similarities to the situation which arises in the present matter. That is because, in Lopez , there was a very real likelihood that if the case went to a final hearing, the group members would not receive anything like the amount they will receive upon the approval of the compromise. The reason for this was that the company was hopelessly insolvent and success in the proceeding would have left group members in a position where their claim would be reduced to the ability to prove in a winding up. As his Honour remarked at [19], "that is hardly an enticing position". A further similarity in Lopez was that there was an insurance fund which was available. His Honour referred at [23] to the effect of s 562 of the then Corporations Law which had the effect that the approval of the settlement and the application of the insurance funds would not, in any way, adversely affect the interests of unsecured creditors of the company. Whilst Village Life is conceded to have limited assets, what I have said about Lopez is not to suggest in any way that the company is insolvent. In this case, as Mr Abadee submitted, the stark consequences of the Court withholding its approval to the settlement would be that any successful judgment that may be obtained by the applicants and subsequently by group members would be wiped out by the legal costs which would be incurred in pursuing the proceedings to final judgment. The estimate of those costs provided in Mr Moulis's affidavit, is in an amount of approximately $4.8 million. Mr Moulis is an experienced practitioner in this field, and I accept his estimate as being within the range in this type of matter. It seems to me to be likely that the individual respondents, who would be entitled to indemnity from the insurer, would incur costs of that order in defending the proceedings. Accordingly, if the matter were to proceed to a final hearing, the entire amount of the insurance fund would be eaten up by legal fees. That is, of course, an unfortunate consequence of the complexity of this type of proceeding. Nevertheless, it is a fact which informs the fairness and reasonableness of the settlement which has been reached. Although the letter from the individual respondents' solicitors suggests that two of the respondents may have some funds at present, it is, in my view, reasonable to infer that were the matter to proceed to final judgment, all of the personal respondents would have to eat into their own assets to such an extent that there would be nothing left for the applicant and group members. That is to say there would be no financial return from success in the proceeding.


case_text: McMullen v ICI Australia Operations Pty Ltd (1998) 84 FCR 1 at 4, Wilcox J observed that the power in s 33ZF(1) was: intended to confer on the Court the widest possible power to do whatever is appropriate or necessary in the interests of justice being achieved in a representative proceeding. His Honour expressed the view that Part IVA involved the introduction of a novel procedure and that it was at the time impossible to foresee all the issues that might arise in the operation of the Part. He said that for that reason, it was desirable to empower the Court to make orders necessary to resolve unforeseen difficulties. As his Honour observed, the only limitation is that the Court must consider the order to be appropriate or necessary to ensure that justice is done in the proceeding. In Courtney v Medtel Pty Ltd [2002] FCA 957 ; (2002) 122 FCR 168 at [48] , Sackville J observed that there are good reasons to give s 33ZF a generous interpretation. His Honour did not refer expressly to the remarks of Wilcox J in McMullen , however the passage to which I have referred from McMullen was approved by Tamberlin J in Johnstone v HIH Limited [2004] FCA 190 at [103] - [104] .


case_text: Multiplex Funds Management Ltd v P Dawson Nominees Pty Ltd [2007] FCAFC 200 ; (2007) 164 FCR 275 , a Full Court considered the question of whether a compulsory funding agreement in similar terms to the funding agreement of the present matter contravened the opt-out nature of representative proceedings. Although not stated explicitly in Multiplex , it is clear enough from the analysis of the relevant provisions of Part IVA that s 33J and the right to opt out is an essential ingredient of the scheme. In spite of that, the Court came to the view that the conditions of the funding agreement which effectively imposed an opt-in requirement did not contravene the provisions of Part IVA. I observed at [149] that the execution of the funding agreement as a condition of inclusion in the represented group operates as a substantial practical disincentive to a group member to exercise the right to opt out of the proceeding. Although the appellants in that case submitted that this subverts a fundamental principle of Part IVA , I said at [150] that group members are nevertheless entitled to opt out, and I came to the view that the funding agreement did not contravene the provisions of Part IVA. French J (as his Honour then was) and Lindgren J agreed with the views that I expressed. I do not consider that Multiplex is authority for the proposition that the Court lacks power to dispense with the requirements of s 33J. I do not consider that the general dispensing power contained in s 33X(2) is applicable. However, in my view, there is power in s 33ZF to dispense with the requirements of opt-out notices.


case_text: Taylor v Telstra Corporation Ltd [2007] FCA 2008 at [56] to [66], I endeavoured to set out the principles which apply to the exercise of the power under s 33V to approve a settlement. The principles to which I referred were applied by Stone J in Dorajay Pty Ltd v Aristocrat Leisure Limited [2009] FCA 19 at [10] . I will apply those principles in considering the present application. It seems that the authorities to which I referred in Taylor v Telstra suggest that there might be some slight difference of emphasis between the approach taken by Goldberg J in Williams v FAI Home Security Pty Ltd (No 4) [2000] FCA 1925 ; (2001) 180 ALR 459 and Darwalla Milling Co Pty Ltd v F Hoffmann-La Roche Limited (No 2) (2007) 236 ALR 322. However, both of these approaches indicate that the essential question is whether the settlement is fair and reasonable having regard to the claims made by group members who will be bound by the settlement.


case_title: Williams v FAI Home Security Pty Ltd (No 4) [2000] FCA 1925 ; (2001) 180 ALR 459


case_text: also determined (at 97) that if no SoP were in force, the hypothesis will not be taken to be reasonable and in consequence the application must fail. Such observation has subsequently been disapproved: see Bull v Repatriation Commission (2001) 188 ALR 756 at [14]; Woodwood v Repatriation Commission [2003] FCAFC 160 ; (2003) 131 FCR 473 at [55] ; and Repatriation Commission v Hancock [2003] FCA 711 ; (2003) 37 AAR 383 at [10] .


case_text: Court has an unfettered discretion with regard to the award of a certificate, provided that the discretion is exercised judicially: see Bullock and Others v Federated Furnishing Trades Society of Australasia and Others (No. 2) (1985) 5 FCR 476 at 478. Whilst there is no presumption that an unsuccessful respondent is entitled to a certificate, in Repatriation Commission v Milenz [2007] FCA 50 , Finn J said at [4]: Given the beneficial purpose of the Veterans Entitlement legislation but accepting the appropriateness of the Repatriation Commission seeking to ensure that administrative decisions made under the Veterans Entitlements Act are made according to law, I consider it appropriate that the burden of making a respondent such as Mr Milenz bear the costs of the appeal in such circumstances undercuts the public interest served by the Federal Proceedings (Costs) Act : see Cornelius at [11]. I would emphasise that in granting a certificate I do take account of Mr Milenz' status as a war veteran though I do not consider it to be of decisive significance.


case_text: Bushell v Repatriation Commission [1992] HCA 47 ; (1992) 175 CLR 408 Mason CJ, Deane and McHugh JJ, said (at 413): Notwithstanding the submission of counsel for the Commission, s. 120(3) is not exhaustive of the content of s. 120(1). Sub-section (3) is concerned with whether "the material" raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. It is not concerned with conflicts in the material, whether they be of opinion or fact. The purpose of sub-s. (3), as demonstrated by its terms and its history, is to ensure that a claim to which s. 120 applies is not met unless there is some material which raises the relevant causal hypothesis. At 414 their Honours said: The material will raise a reasonable hypothesis within the meaning of s. 120(3) if the material points to some fact or facts ("the raised facts") which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. At 415 their Honours said: If the material does raise a reasonable hypothesis of a connexion between the service and the injury, disease or death, the claim must be dealt with in accordance with s. 120(1). That is to say, the commission must determine that the injury, disease or death was war caused "unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination." Section 120(1) and (3) are affected by s 120A. Section 120A applies in respect of claims made under the VE Act on or after 1 June 1994. Section 120A and ss 196A to 196ZP were introduced in order to establish a more certain basis for the finding of a medical hypothesis and to ensure that ' medical opinions supported by little or no medical-scientific evidence do not prevail over the carefully developed mass of medical-scientific opinion ' (see Explanatory Memorandum to the Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 ). Such changes allow for the creation of a Statement of Principles ('SoP') to be determined by the Repatriation Medical Authority ('the Authority') which establish the relevant relationship between service and the death claimed by applicants for pensions. Section 120A(3) of the VE Act relevantly provides that a hypothesis connecting, inter alia, the death of the person with the circumstances of any particular service rendered by the person is reasonable only if there is a SoP that upholds the hypothesis. Section 196B(1) authorises the Authority to formulate SoPs for the purpose of the VE Act. Section 196B(2) relevantly provides: (2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of... death can be related to: (a) operational service rendered by veterans; or ... the Authority must determine a Statement of Principles in respect of that kind of... death setting out: (d) the factors that must as a minimum exist; and (e) which of those factors must be related to service rendered by a person; before it can be said that a reasonable hypothesis has been raised connecting [a]... death of that kind with the circumstances of that service. Believing that there was no applicable SoP, the Tribunal then considered whether there was a reasonable hypothesis connecting the veteran's death with his service (at [40]): As there is no SoP, we therefore proceed according to the principles outlined in Bushell and Byrne . Section 120 (3) of the Act provides, inter alia, that, for there to be no sufficient ground for determining Dr Walker's death was war caused, the material before us must not raise a reasonable hypothesis connecting the injury, disease or death with the service rendered by Dr Walker... The Tribunal concluded that a hypothesis was established. That hypothesis was that the veteran developed a heavy smoking habit during and in consequence of his service which caused IHD and that IHD was one cause of his death. The Tribunal found that such hypothesis was reasonable and that it was not satisfied beyond a reasonable doubt that any element of the hypothesis had been disproved beyond reasonable doubt. Having determined that there was no applicable SoP for heart failure or kidney failure, the Tribunal then applied ss 120(1) and 120(3) of the VE Act and had regard to the observations of the High Court in Bushell to determine whether there was a reasonable hypothesis that established the veteran's cigarette smoking habit was connected to his death. Having observed that there was evidence that the veteran's tobacco consumption had been between 30 and 50 pack years as estimated by Dr Butler, the Tribunal found that the hypothesis raised by the respondent linked the veteran's service with his death from heart failure. In such deliberation the Tribunal noted the evidence of Dr Butler that the requirements of the IHD SoP in respect of the veteran's tobacco consumption would be met. The Tribunal also observed at [52]: Given the terms of s 196B we accept that the existence of the SoP for IHD, which includes smoking as a factor, is a relevant matter in respect of this element of the hypothesis. Later in its decision the Tribunal observed (at [54]): As we understand the evidence of Dr Butler and Professor O'Rourke, they agreed that there was no evidence of damage as a result of ischaemia within the two weeks before Dr Walker's death, but previous damage could have contributed to heart failure. Further, Dr Butler said that there was 10 or 20 per cent likelihood of systolic failure on the basis of IHD. Professor O'Rourke also said that there was a less than 10 per cent probability that IHD played a role in Dr Walker's death. That is evidence from both doctors of a likelihood of a contribution from IHD to Dr Walker's death.


case_text: operation of such statutory provisions was summarised by Buchanan J in Byrne v Repatriation Commission [2007] FCAFC 126 ; (2007) 242 ALR 620. At [26] his Honour said: Subsection (3) of s 120 therefore contains a statutory direction that the Repatriation Commission (or, in this case, the AAT) is to be satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that an injury was a war-caused injury if it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the veteran. By the use of that statutory direction the legislation fastens upon an opinion that no reasonable hypothesis is available and directs that it satisfy the onus of proof beyond reasonable doubt. In these circumstances the claim will be rejected.


case_text: Repatriation Commission v Deledio [1998] FCA 391 ; (1998) 83 FCR 82 the Full Court explained the method of the application of s 120(1) and (3) at page 91 where the Court said: The method of applying s 120(1) and (3) is now well established: (1) One commences with subs (3). The first step is to identify the hypothesis said to establish the causal link between the veteran's eligible war service and the death, injury or disease. Identifying the hypothesis is a question of fact. (2) The second step under subs (3) is to determine whether the hypothesis is reasonable. The material will raise a reasonable hypothesis if it points to some fact or facts which support the hypothesis (the 'raised facts') and if the hypothesis can be regarded as reasonable assuming the raised facts to be true. In determining whether the hypothesis is reasonable the decision-maker must identify the facts said to point to it. (3) Whether a hypothesis is reasonable is a question of fact. The decision-maker must be satisfied that the hypothesis is reasonable after considering the whole of the material. Proof of facts and onus of proof are not in issue at this point. (4) If the decision-maker concludes that the material raises a reasonable hypothesis, the third step is reached. Subsection (1) must be applied, and the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis. See also Byrnes v Repatriation Commission [1993] HCA 51 ; (1993) 177 CLR 564 at 571.


case_text: Collector of Customs v Pozzolanic Enterprises Pty Ltd; Collector of Customs v Pressure Tankers Pty Ltd [1993] FCA 456 ; (1993) 43 FCR 280 the Full Court considered such question. At 287 the Full Court distilled five propositions which emerged from previous authority relating to such question. Relevantly, the fourth proposition states: The effect or construction of a term whose meaning or interpretation is established is a question of law: Life Insurance Co of Australia v Phillips ... In the present proceedings the 'kind of death' to be determined involves the question whether such words should be given their ordinary meaning or some technical meaning. Accordingly, this question of construction raises a question of law. The Full Court in Pozzolanic stated the fifth proposition as follows (at 287): The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law: Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 7 per Mason J with whom Gibbs, Stephen, Murphy and Aickin JJ agreed; Australian National Railways Commission v Collector of Customs (SA) at 379 (Sheppard and Burchett JJ). The Amended Notice of Appeal raises questions of statutory interpretation and of the application of the provisions of the IHD SoP, and whether the facts support the claim. As such, questions of law are pivotal to the appeal. Accordingly, the Court rejects the contention that the Tribunal's finding concerning the cause of death of the veteran was a finding only of fact. Misapplication of IHD SoP


case_text: Comcare v Etheridge and Others [2006] FCAFC 27 ; (2006) 149 FCR 522 , Branson J considered the determination of question of fact and question of law. Her Honour, adopting the reasoning of Gummow J in TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 at 178-179, said at [13]: ...where an appeal lies "on a question of law" the subject matter of the appeal is the question or questions of law.


case_text: Commission submits that the Tribunal was required, when characterising the 'kind of death' met by the veteran, to have regard to the characterisation of such death as provided by the IHD SoP. The veteran must have met a death with which that SoP is concerned in order to link such death with his war service: see Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331 at [16] . The Commission submits that the Tribunal erred in its finding that the 'kind of death' sustained by the veteran was heart failure and kidney failure, and that such finding conflates the medical cause of death with the actual death of the veteran. The Commission referred to paragraph 8 of SoP No. 89 of 2007 which defines ' death from [IHD]' to include ' death from a terminal event or condition that was contributed to by the person's [IHD]'. As mentioned earlier, this was not the applicable SoP, however, the relevant wording is identical to the SoP that was in force. ' Terminal event ' is defined in the IHD SoP and includes cardiac arrest. The Commission contends that the Tribunal's finding did not consider the cause of heart failure or kidney failure. Instead the Tribunal wrongly made its finding on the 'kind of death' based upon the proximate cause or terminal event. The Commission also submits that given that the Tribunal found that IHD was not a 'kind of death', it follows that the Tribunal must, as a consequence of that decision, have not been satisfied, on the balance of probabilities, that IHD had contributed to the veteran's death. That is, the Tribunal's hypothesis connecting the veteran's death to his service was erroneous because it was premised on IHD contributing to the veteran's death. Further, by the finding that IHD was not a cause of death of the veteran, but that glomerulonephritis was such cause, the Commission submits that the Tribunal should have concluded that the GN SoP was applicable. However, the application of the GN SoP would not have assisted the respondent because the GN SoP did not include cigarette smoking as a cause of glomerulonephritis. The respondent submits that the determination of the 'kind of death' was a question of medical causation and as such comprised a factual finding which could not be the subject of an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 ('the AAT Act'); that the factual finding was open to the Tribunal since there was evidence that heart failure occurred; and that heart failure was a cause of the veteran's death.


case_text: issue determined before this Court concerns the interpretation by the Tribunal of both statutory provisions and of SoPs. The Tribunal was not referred by the Commission to the GN SoP in respect of which numerous submissions have now been made by the Commission and which were not raised before the Tribunal. The arguments of the Commission involved a degree of complexity, and the errors of the Tribunal have arisen from a misapplication of the law. The position is not dissimilar to that in Repatriation Commission v Codd [2005] FCA 910.


case_text: Repatriation Commission v Codd [2007] FCA 877 ; (2007) 95 ALD 619 Gordon J observed (at [20]) that the Deledio methodology is subject to three qualifications. Firstly, the methodology is not to be applied mechanistically; secondly, if no SoP is in force reference must be had to s 120A(4) of the VE Act which provides that s 120A(3) does not apply in certain circumstances; and thirdly there are two preliminary steps to the Deledio analysis as expounded by Selway J in Hancock . Such steps were identified at [11] as follows: (a) First, the AAT was required to determine, on balance of probabilities, whether the pre-conditions other than causation, had been made out... (b) Next, the AAT was required to determine on balance of probabilities what "kind of death" [the veteran] had suffered. This involved the identification, on balance of probabilities, of any and all [SoP] and/or determinations under s 180A(2) of the Act and any other "kinds of death" which were applicable to that death. (c) If one or more [SoP] were applicable, then the methodology in Deledio is applicable in relation to those "kinds of death"...


case_outcome: distinguished

case_text: application for a costs certificate is opposed by the Commission. The Commission submits that such certificate should not issue and relies upon Repatriation Commission v Cornelius (2002) 35 AAR 345. In Cornelius , Branson J found that an application to the Court from a decision by the Tribunal constituted an ' appeal ' from a decision of the Tribunal. It followed that the proceeding constituted a ' Federal appeal ' within the meaning of the Costs Act. This Court, adopting such finding, determines that it has a discretion to award the relevant certificate. In Cornelius Branson J observed at [11] that costs certificates are ' intended to advance a more specific public interest '. Her Honour continued: That public interest would seem to be the alleviation of the costs burden that can fall on an individual who appropriately and successfully institutes a proceeding before the Administrative Appeals Tribunal or a federal court yet thereafter finds himself or herself a respondent to a successful "appeal" on a question of law or as to the amount of damage awarded at first instance. Branson J had evidence that the Legal Aid Review Committee had not been satisfied that the unsuccessful respondent in those proceedings had reasonable prospects of success in the application before the Tribunal. Accordingly, the respondent was made aware that her claim was weak. In the present proceedings, no such consideration arises. The Court has an unfettered discretion with regard to the award of a certificate, provided that the discretion is exercised judicially: see Bullock and Others v Federated Furnishing Trades Society of Australasia and Others (No. 2) (1985) 5 FCR 476 at 478. Whilst there is no presumption that an unsuccessful respondent is entitled to a certificate, in Repatriation Commission v Milenz [2007] FCA 50 , Finn J said at [4]: Given the beneficial purpose of the Veterans Entitlement legislation but accepting the appropriateness of the Repatriation Commission seeking to ensure that administrative decisions made under the Veterans Entitlements Act are made according to law, I consider it appropriate that the burden of making a respondent such as Mr Milenz bear the costs of the appeal in such circumstances undercuts the public interest served by the Federal Proceedings (Costs) Act : see Cornelius at [11]. I would emphasise that in granting a certificate I do take account of Mr Milenz' status as a war veteran though I do not consider it to be of decisive significance.


case_text: Repatriation Commission v Deledio [1998] FCA 391 ; (1998) 83 FCR 82 the Full Court explained the method of the application of s 120(1) and (3) at page 91 where the Court said: The method of applying s 120(1) and (3) is now well established: (1) One commences with subs (3). The first step is to identify the hypothesis said to establish the causal link between the veteran's eligible war service and the death, injury or disease. Identifying the hypothesis is a question of fact. (2) The second step under subs (3) is to determine whether the hypothesis is reasonable. The material will raise a reasonable hypothesis if it points to some fact or facts which support the hypothesis (the 'raised facts') and if the hypothesis can be regarded as reasonable assuming the raised facts to be true. In determining whether the hypothesis is reasonable the decision-maker must identify the facts said to point to it. (3) Whether a hypothesis is reasonable is a question of fact. The decision-maker must be satisfied that the hypothesis is reasonable after considering the whole of the material. Proof of facts and onus of proof are not in issue at this point. (4) If the decision-maker concludes that the material raises a reasonable hypothesis, the third step is reached. Subsection (1) must be applied, and the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis. See also Byrnes v Repatriation Commission [1993] HCA 51 ; (1993) 177 CLR 564 at 571. Deledio also determined (at 97) that if no SoP were in force, the hypothesis will not be taken to be reasonable and in consequence the application must fail. Such observation has subsequently been disapproved: see Bull v Repatriation Commission (2001) 188 ALR 756 at [14]; Woodwood v Repatriation Commission [2003] FCAFC 160 ; (2003) 131 FCR 473 at [55] ; and Repatriation Commission v Hancock [2003] FCA 711 ; (2003) 37 AAR 383 at [10] . In Repatriation Commission v Codd [2007] FCA 877 ; (2007) 95 ALD 619 Gordon J observed (at [20]) that the Deledio methodology is subject to three qualifications. Firstly, the methodology is not to be applied mechanistically; secondly, if no SoP is in force reference must be had to s 120A(4) of the VE Act which provides that s 120A(3) does not apply in certain circumstances; and thirdly there are two preliminary steps to the Deledio analysis as expounded by Selway J in Hancock . Such steps were identified at [11] as follows: (a) First, the AAT was required to determine, on balance of probabilities, whether the pre-conditions other than causation, had been made out... (b) Next, the AAT was required to determine on balance of probabilities what "kind of death" [the veteran] had suffered. This involved the identification, on balance of probabilities, of any and all [SoP] and/or determinations under s 180A(2) of the Act and any other "kinds of death" which were applicable to that death. (c) If one or more [SoP] were applicable, then the methodology in Deledio is applicable in relation to those "kinds of death"...


case_text: instrument entitled ' Revocation and Determination of Statement of Principles concerning Ischaemic Heart Disease ' (No. 53 of 2003 as amended by No. 9 of 2004) ('the IHD SoP'), now replaced by No. 89 of 2007, was operative at the date of the Commission's decision. The replacement is not relevant, since the Commission was required to consider the IHD SoP in accordance with the SoP prevailing at the date of its decision: see Repatriation Commission v Gorton [2001] FCA 1194 ; (2001) 110 FCR 321. In all relevant respects, the 2004 and 2007 IHD SoPs are identical. Paragraph 8 of the IHD SoP provided that ' " death from ischaemic heart disease " in relation to a person includes death from a terminal event or condition that was contributed to by the person's ischaemic heart disease '. Paragraph 2(b) of the IHD SoP provided: For the purposes of this Statement of Principles, "ischaemic heart disease" means a cardiac disability characterised by insufficient blood flow to the muscle tissue of the heart due to atherosclerosis, thrombosis or vasospasm of the coronary arteries. Paragraph 8 of the IHD SoP defined ' terminal event ' as follows: "terminal event" means the proximate or ultimate cause of death and includes: (a) pneumonia; (b) respiratory failure; (c) cardiac arrest; (d) circulatory failure; or (e) cessation of brain function. ' Condition ' is not defined. The IHD SoP had been made, and it was directly relevant to the respondent's claim which contended that the veteran's 'kind of death' (heart failure) was caused by IHD. Accordingly, the Tribunal was required to consider the IHD SoP in accordance with the SoP prevailing at the date of its decision: see Gorton . Applying the IHD SoP, the critical issue for the Tribunal's determination was the identification of the cause of the IHD, as itemised in the IHD SoP. Purported application of s 120(3)


case_text: also determined (at 97) that if no SoP were in force, the hypothesis will not be taken to be reasonable and in consequence the application must fail. Such observation has subsequently been disapproved: see Bull v Repatriation Commission (2001) 188 ALR 756 at [14]; Woodwood v Repatriation Commission [2003] FCAFC 160 ; (2003) 131 FCR 473 at [55] ; and Repatriation Commission v Hancock [2003] FCA 711 ; (2003) 37 AAR 383 at [10] . In Repatriation Commission v Codd [2007] FCA 877 ; (2007) 95 ALD 619 Gordon J observed (at [20]) that the Deledio methodology is subject to three qualifications. Firstly, the methodology is not to be applied mechanistically; secondly, if no SoP is in force reference must be had to s 120A(4) of the VE Act which provides that s 120A(3) does not apply in certain circumstances; and thirdly there are two preliminary steps to the Deledio analysis as expounded by Selway J in Hancock . Such steps were identified at [11] as follows: (a) First, the AAT was required to determine, on balance of probabilities, whether the pre-conditions other than causation, had been made out... (b) Next, the AAT was required to determine on balance of probabilities what "kind of death" [the veteran] had suffered. This involved the identification, on balance of probabilities, of any and all [SoP] and/or determinations under s 180A(2) of the Act and any other "kinds of death" which were applicable to that death. (c) If one or more [SoP] were applicable, then the methodology in Deledio is applicable in relation to those "kinds of death"... The application of the statutory provisions to the claim required the Tribunal to consider separate stages. The first step was to determine what the 'kind of death' was. As was observed by Selway J in Hancock at [9], such identification is a critical step in the analysis. Next, the Tribunal was required to determine whether s 120A applied, that is whether a SoP existed which addressed the question of the reasonableness of the hypothesis concerning the connection between the 'kind of death' and service of the veteran. If a relevant SoP existed, the Tribunal was, pursuant to s 120A of the VE Act, required to determine the claim in respect of the death in accordance with the template contained in the SoP. By satisfying the template, a reasonable hypothesis linking the veteran's service with the death would thereby be established. If no relevant SoP existed, s 120A(3) had no application by virtue of s 120A(4). In this event, the Tribunal was required to assess the claim having regard only to s 120(3) of the VE Act. In Codd Gordon J said at [31]: The phrase "kind of death met by the person" in s 120A(4) asks a causative question. It is not a question about whether the death was slow, fast or the like. It asks "questions of medical causation" about the cause of death and does so in a particular context the VE Act and, in particular, Pt VIII of the VE Act: see also explanatory memorandum to the Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 (Cth) pp i-ii.


case_text: follows that where a SoP is in force concerning the 'kind of death', unless the decision maker is provided with material which points to a hypothesis which satisfies a template of the relevant SoP, the claim that the death is related to operational service cannot succeed. As was explained by the Full Court in Repatriation Commission v Hill [2002] FCAFC 192 ; (2002) 69 ALD 581 at [57] : The result is that, where it applies, the SoP prescribes the essential content of what is a reasonable hypothesis, for s 120(3) purposes, capable of connecting the particular kind of injury, disease or death with the circumstances of a veteran's particular service. In order to satisfy ss 120(3) and 120A(3), a hypothesis relied on by a veteran to support a pension claim must be supported by material pointing to each element that the SoP makes essential for the hypothesis to be reasonable. Accordingly, where no relevant SoP exists, an evaluation is to be made under s 120(3) to determine whether any hypothesis is reasonable, unaffected by s 120A(3): see s 120A(4).


case_text: Repatriation Commission v McKenna (1998) 52 ALD 72 at 80 Goldberg J described the operation of an SoP as follows: For the purposes of s 120A(3) of the Act the hypothesis which has to be upheld by a Statement of Principles is the hypothesis which connects the disease suffered by a veteran with the circumstances of his service. So stated, the hypothesis has to point to a connection which starts with the disease in respect of which the application is made and ends with the service. That connection will comprise a number of links or factors each of which must be upheld by a Statement of Principles and, if need be, by more than one Statement of Principles. Section 120A(4) of the VE Act provides that s 120A(3): ...does not apply...if the Authority has neither determined a Statement of Principles under s196B(2), nor declared that it does not propose to make such a Statement of Principles in respect of... the kind of death met by the person... Accordingly, the first enquiry the Tribunal should have made is whether a SoP had been made in respect of the ' particular kind of...death ' suffered by the veteran.


case_title: Repatriation Commission v Milenz [2007] FCA 50


case_text: assessing what the veteran's 'kind of death' was, the Tribunal was required, by s 120(4), to be satisfied on the civil standard of proof, that is, on the balance of probabilities. In Repatriation Commission v Smith (1987) 15 FCR 327 , Beaumont J said at 335: Even if the Tribunal is not bound by the traditional evidentiary principles, s 120(4) constitutes a clear direction to the Tribunal that it must be reasonably satisfied before it makes any decision. In my opinion, this could only have been intended to introduce the standard of proof required in civil litigation. Given that the Tribunal found that IHD was not a 'kind of death', it must be assumed that the Tribunal was not satisfied on the balance of probabilities that IHD was the 'kind of death' met by the veteran. However, failure to satisfy a balance of probabilities test does not lead to the conclusion that IHD cannot have had any contribution whatsoever to the veteran's death. That is, it does not follow that such conclusion has the consequence that IHD could not have contributed to the veteran's death, as the Commission has submitted. The Tribunal's finding only establishes that the contribution has not been sufficient to satisfy the high standard found in s 120(4) of the VE Act. In finding that the veteran's 'kind of death' was heart failure (erroneously, as has been discussed) the Tribunal found that the possibility of IHD contributing to the veteran's death was sufficient to find that it was a cause of the veteran's 'kind of death' and thus ground a reasonable hypothesis under ss 120(1) and 120(3) of the VE Act. While based on a misapplication of the VE Act regarding the 'kind of death', from the Tribunal's perspective it was logical (though again, erroneous) for it to consider the IHD SoP as providing a grounding for a reasonable hypothesis, namely that cigarette smoking caused the veteran's IHD which in turn was a cause of heart failure. The Tribunal has not 'subverted the standard of proof prescribed by s 120 of the VE Act '.


case_title: TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175


case_text: also determined (at 97) that if no SoP were in force, the hypothesis will not be taken to be reasonable and in consequence the application must fail. Such observation has subsequently been disapproved: see Bull v Repatriation Commission (2001) 188 ALR 756 at [14]; Woodwood v Repatriation Commission [2003] FCAFC 160 ; (2003) 131 FCR 473 at [55] ; and Repatriation Commission v Hancock [2003] FCA 711 ; (2003) 37 AAR 383 at [10] . Since the IHD SoP existed, it was not open to the Tribunal to attempt to find a reasonable hypothesis otherwise than in accordance with that SoP. As was held by the Full Court in Woodwood at [100]: Once an [sic] SoP is determined in relation to a particular condition, it covers the field in relation to that condition. Accordingly, the Tribunal erred by determining that a reasonable hypothesis existed, pursuant to ss 120(1) and 120(3) of the VE Act, linking the veteran's service to his death. Standard of proof The evidence provided to the Tribunal established, at its highest, that there was a possibility that IHD was a component in the veteran's death. Dr Butler rated such possibility as a ten or twenty per cent chance and Professor O'Rourke assessed such possibility as probably less than ten per cent. This possibility was found by the Tribunal to be sufficient to find that the hypothesis connecting service to the veteran's death was reasonable in assessing the claim under s 120(3) of the VE Act: In our view the material before us points relevantly to one cause of Dr Walker's death being IHD. [53]


case_text: The starting point for consideration of the appellant's arguments seem to me to be conveniently addressed in a decision of a Full Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46] to [47]. The Full Court there observed that: It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. 29 Their Honours pointed out that there is a distinction between the tribunal failing to advert to evidence which, if accepted, might lead to a different finding, and a failure by a tribunal to address a contention which, if accepted, might establish that the applicant has a well-founded fear of persecution for a Convention reason. Their Honours observed at [47] that the "inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons". However, that is an inference which will not too readily be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. 30 It is therefore important to note, as I have already pointed out, that the Tribunal expressly recorded the appellant's adviser's post hearing submissions which stated that the factors relied upon by the appellant may not of themselves amount to a claim for asylum but that cumulatively they created a profile of an imputed association with Falun Gong. It seems to me to follow from this and also from the lengthy statement of the appellant's claims in the Tribunal that the reasons given by the Tribunal must be read in light of those two factors; that is to say the issue which the appellant now seeks to agitate was expressly referred to by the Tribunal before it gave its findings and reasons, and the findings are therefore to be informed by that fact. 37 I reject the submission put by counsel for the appellant that the Tribunal failed to address a contention. I do not think the appellant's argument is supported by what was said in Applicant WAEE at [44]. The present case falls for consideration upon a fair reading of all of the reasons of the Tribunal. I have already given my views on that question. 38 In my view it follows that the orders to be made are that the appeal be dismissed with 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 Jacobson J. Associate: Dated: 27 November 2006 Counsel for the Appellant: J F Gormly Counsel for the Respondent: J Potts Solicitor for the Respondent: Clayton Utz Date of Hearing: 27 November 2006 Date of Judgment: 27 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1706.html


case_text: The grounds of review which the appellant seeks to raise in her amended notice of appeal do not appear on their face to be within the grounds that were raised before the Federal Magistrate. However, I think it is arguable that they fell within the unreasonableness ground and, in any event, counsel for the Minister disclaimed any prejudice to the Minister by the raising of these grounds on appeal. Accordingly, applying the principles stated by a Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] to [48], I would be prepared to grant leave to the appellant to raise the grounds on the appeal. That, of course, is not to say that amended grounds could be raised on appeal if the principles referred to by the High Court in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7-8 are infringed.


case_text: The principles relied upon by the appellant were stated by the High Court in Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 ; (2003) 77 ALJR 1088 at [24] and [95].


case_text: The principle is that there will be jurisdictional error if the Tribunal fails to make a finding on "a substantial, clearly articulated argument relying on established facts". This may amount to a constructive failure to exercise jurisdiction. This principle was referred to by a Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at [55] . The court also referred at [57] to the nature of the review function as described by Allsop J in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42]; this is that the tribunal is to consider all of the component integers of the appellant's claim.


case_text: The appellant relied upon the decision of Moore J in Kaur v Minister for Immigration and Multicultural Affairs [2001] FCA 1401. That case was referred to with apparent approval by Finkelstein J in Jegatheeswaran v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 263 at [48]. Kaur was a case in which it was argued that the tribunal considered each of the facts put forward by the applicant in isolation but failed to consider their cumulative weight. His Honour accepted that this may amount to constructive failure to exercise jurisdiction. His Honour cited a number of authorities in support of that proposition. 36 In my view the present case falls within the approach taken by Finkelstein J in Jegatheeswaran at [49]. His Honour observed that the separate treatment of the incident relied on in that case did not indicate that the tribunal failed to look at the case in its entirety. His Honour remarked that the tribunal stated that it reached its conclusion "[h]aving considered the evidence as a whole" and that there was no reason to doubt the statement. In my view that is apt in the present case. Sundberg J agreed with the reasons given by Finkelstein J. The reasons of Emmett J at [23] are also consistent with this approach.


case_text: The appellant relied upon the decision of Moore J in Kaur v Minister for Immigration and Multicultural Affairs [2001] FCA 1401. That case was referred to with apparent approval by Finkelstein J in Jegatheeswaran v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 263 at [48]. Kaur was a case in which it was argued that the tribunal considered each of the facts put forward by the applicant in isolation but failed to consider their cumulative weight. His Honour accepted that this may amount to constructive failure to exercise jurisdiction. His Honour cited a number of authorities in support of that proposition. 35 However, in the present case, for the three reasons that I have mentioned above, I consider that the Tribunal dealt with all of the integers of the claim and that the facts put forward to support the profile were considered cumulatively. Indeed, that was the view which was eventually reached by Moore J in Kaur at [13] to [15]. It seems to me that the reasons given by the tribunal in Kaur pointed more strongly in the direction of a compartmentalised consideration of the claims than appears in the present case.


case_title: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1


case_title: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158


case_text: For completeness reference might also be made to a decision given in this Court's original jurisdiction by R.D. Nicholson J, Daniel v Western Australia [1999] FCA 1541 ; (1999) 94 FCR 537 at 541 - 542 in para 25 and para 26, his Honour observed: The communications in issue are principally communications from some of the first applicants. As I have said, however, there are possibly some communications from the second applicants and the third applicants and I've already stated that in the event of these being identified, if a privilege is found to exist, those parties should be given the opportunity to decide whether to make a claim and support it with argument. If there are communications to Mr Robinson by persons other than any of the applicants, that is persons other than any client, there is no basis for a client based privilege.


case_title: Esso Australia Resources Limited v Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49

case_text: In Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49 at 59, para 16, Gleeson CJ and Gaudron and Gummow JJ observed of these sections as follows in their joint judgment: Those sections appear in chapter 3 (sections 55 to 139 ) of the Act which, say for presently immaterial exceptions, is concerned with the admissibility of evidence. This limitation in the language of the statutory provisions was noted and was essential to the decision of this Court in Northern Territory v GPAO. The explanation of the wording of the Act is set out above. The statutory language is clear. It deals with the adducing of evidence. That would cover adducing evidence in interlocutory proceedings as well as at a final hearing or on an appeal but it does not cover all the circumstances in which a claim for privilege might arise. To take the most obvious example, it would not cover the circumstances considered in Baker v Campbell. 13 Neither, for the reasons given in para 59, does it cover the situation in respect of documents which are produced on subpoena, save in that circumstance when such a document is sought to be adduced in evidence. That is not this case at the present. That is not to say that documents produced on subpoena may not be the subject of a claim by a party entitled to claim legal professional privilege, but the foundation for such a claim must be that privilege as it is known at common law, not as provided for in s 118 and s 119 of the Evidence Act 1995 . 14 Granitgard has challenged the claim made by Termicide insofar as the claim relates to communications between third parties, in other words, where the documents did not emanate either from the Respondents or its lawyers. Three particular types or class of document have been identified by way of example: 1. documents produced by Dr French as referred to in Termicide's solicitor's letter dated 31 July 2008, being communications passing between Dr French and Dr Ahmed; 2. documents produced by Dr Ahmed as referred to in Termicide's solicitor's letter dated 31 July 2008, being communications passing between Dr Ahmed and Dr French; and 3. documents produced by a Mr Langley as referred to in Termicide's solicitor's letter dated 20 August 2008, being communications passing between "experts". 25 Though reported in the authorised reports in 1999, the Interchase case was decided in 1997, that is prior to the decision of the High Court in Esso Australia Resources Limited v Commissioner of Taxation . Thus, that explains the reference by their Honours to a sole purpose test. The later decided Esso Australia Resources case holds that for Australia the test at common law for legal professional privilege in relation to documents is whether a communication was made or a document was prepared for the dominant purpose of a lawyer providing legal advice or legal services. Subject to that necessary qualification, the discussion of principle in the Interchase case is compelling.