case_text: Commonwealth v Northern Land Council [1993] HCA 24 ; (1993) 176 CLR 604 , a public interest immunity case about documents recording cabinet deliberations, the Court said at 620: There was, therefore, no call for Jenkinson J to order that the documents be produced for inspection. But we would add that, even if there had been, the procedure of ordering production of documents for inspection by the legal representatives of one of the parties, even upon a restricted basis, before the claim for immunity had been decided by the court, was open to serious question. Whatever the safeguards, it represents an encroachment upon the confidentiality claimed for the documents. And in this case, public interest in their immunity from disclosure was of the highest order. If inspection of documents is necessary to determine the question of immunity (and in this case it was not) then it ought to be carried out by the court before ordering production for inspection by a party. No doubt this may in some cases cast a heavy burden on the court, but it is unavoidable if confidentiality is to be maintained until a claim for immunity is determined. See also Alister v The Queen (1984) 154 CLR 404 at 469 and Gypsy Jokers Inc v Commissioner of Police (WA) [2008] HCA 4 ; (2008) 234 CLR 532 at [180] and [185] per Crennan J. Northern Land Council and Alister concerned inspection by the court of the documents over which privilege was claimed. In Gypsy Jokers Crennan J spoke more broadly of "information in documents", "certain material relied on for determination of a proceeding" and "confidential material before a court", which was not revealed to a party seeking it. In The Queen v Bebic (unreported, 27 May 1982) the Court of Criminal Appeal of New South Wales dealt specifically with the disclosure of the contents of an affidavit tendered in support of a public interest immunity claim. There Samuels JA, Nagle CJ at CL and Cantor J said at 4: Mr Mason tendered an affidavit in support of his claim for privilege. He submitted, however, that the affidavit should not be placed on the file, that is to say that it should be read only by the Court and not disclosed to the party calling, on the footing that the contents of the affidavit would or might themselves compromise the claims for privilege. We had and still have some doubts about the propriety of restricting the affidavit in the way proposed. However, it may well be that that course is, in certain cases, of which this is one, no more than a logical extension of the established practice of the Courts inspecting the allegedly privileged documents itself. Later at 5, after saying that the Court had read both documents in question and the affidavit in support of the claim for privilege, their Honours said: It seems to us that granted that it is now commonplace for judges to make a private inspection of documents in order to resolve a claim for privilege ..., it follows that in a proper case the judge may similarly keep to himself the affidavit by which the claim is supported. The Court then ordered that the affidavit remain sealed up with the papers on the ground that to disclose its contents might prejudice the claim for privilege. I was uncertain about the status of the "ASIO internal email dated 7 September 2005 (re: Parkin)", and called for the documents in order to determine whether it fell within the class claimed. I did this in reliance on what had been said in Northern Land Council 176 CLR at 617: In many so-called "class" cases a court may find it necessary to consider a document, inspecting it if necessary, in order to determine whether it does in truth fall into a class which attracts immunity. Having inspected the documents, my inference as to the Internal Minutes and Briefing Notes was confirmed. Each Internal Minute fits the description given by the respondent of a Final Appreciation. Each Briefing Note accords with his description of a DGBN. The "ASIO internal email dated 7 September 2005 (re: Parkin)" is a covering note transmitting the Internal Minute to the respondent. It contains a brief summary of the Internal Minute. It fits the respondent's description recorded at [21] that "Final Appreciation documents, and summaries thereof , are documents the disclosure of which is very likely to damage Australia's national security" (emphasis added). On the basis of the material in the respondent's affidavit, aided by my inspection of the documents, it is clear to me that the matters relied on by the applicants do not outweigh the public interest identified by the respondent. The contrast asserted by the applicants between Cabinet documents ('a clear class claim') and the respondent's description here (see [34]) is not helpful. That is because of the range of documents, with different levels of Cabinet connection, that may fall within the description but not necessarily qualify for immunity. At the top of the chain will be the Cabinet minutes considered in Northern Land Council [1993] HCA 24 ; 176 CLR 604. Lower down will be documents and communications between a Minster and the head of department relating to cabinet proceedings and material prepared for cabinet. Further down the chain are documents relating to the formation of government policy at a high level. Then will come other documents concerned with policy making including minutes by junior officials and correspondence with outside bodies. See S ankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1 at 39. In Conway v Rimmer [1968] UKHL 2 ; [1968] AC 910 at 952 Lord Reid said of this last-mentioned category "I do not think that it is possible to limit such documents by any definition".


case_outcome: cited

case_text: contrast asserted by the applicants between Cabinet documents ('a clear class claim') and the respondent's description here (see [34]) is not helpful. That is because of the range of documents, with different levels of Cabinet connection, that may fall within the description but not necessarily qualify for immunity. At the top of the chain will be the Cabinet minutes considered in Northern Land Council [1993] HCA 24 ; 176 CLR 604. Lower down will be documents and communications between a Minster and the head of department relating to cabinet proceedings and material prepared for cabinet. Further down the chain are documents relating to the formation of government policy at a high level. Then will come other documents concerned with policy making including minutes by junior officials and correspondence with outside bodies. See S ankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1 at 39. In Conway v Rimmer [1968] UKHL 2 ; [1968] AC 910 at 952 Lord Reid said of this last-mentioned category "I do not think that it is possible to limit such documents by any definition".


case_title: Dodds v The Queen [2009] NSWCCA 78

case_text: more recent cases it appears to have become a matter of course for "confidential" affidavits supporting public interest immunity claims to be restricted to the judge. See, for example, R v Smith (1996) 86 A Crim R 308 at 310, Dodds v The Queen [2009] NSWCCA 78 at [55] and R v Meissner (1994) 76 A Crim R 81 at 85.


case_text: weeks after I had reserved my decision the applicants' counsel submitted a memorandum drawing my attention to a recent decision of the House of Lords in Secretary of State for the Home Department v AF (No 3) [2009] 3 WLR 74. No leave was sought to file additional material, no prior notice was given to the respondent, and the respondent submits that I should not receive the memorandum. On many occasions the High Court has said that the hearing is the time and place to present arguments, and has explained why unauthorised post-hearing submissions will generally not be received. See for example Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 ; (1981) 147 CLR 246 at 258, Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28 ; (2003) 214 CLR 318 at [27] - [31] and Re Chief Commissioner of Police (Vic) (2005) 214 ALR 522 at [22].


case_text: Commonwealth v Northern Land Council [1993] HCA 24 ; (1993) 176 CLR 604 , a public interest immunity case about documents recording cabinet deliberations, the Court said at 620: There was, therefore, no call for Jenkinson J to order that the documents be produced for inspection. But we would add that, even if there had been, the procedure of ordering production of documents for inspection by the legal representatives of one of the parties, even upon a restricted basis, before the claim for immunity had been decided by the court, was open to serious question. Whatever the safeguards, it represents an encroachment upon the confidentiality claimed for the documents. And in this case, public interest in their immunity from disclosure was of the highest order. If inspection of documents is necessary to determine the question of immunity (and in this case it was not) then it ought to be carried out by the court before ordering production for inspection by a party. No doubt this may in some cases cast a heavy burden on the court, but it is unavoidable if confidentiality is to be maintained until a claim for immunity is determined. See also Alister v The Queen (1984) 154 CLR 404 at 469 and Gypsy Jokers Inc v Commissioner of Police (WA) [2008] HCA 4 ; (2008) 234 CLR 532 at [180] and [185] per Crennan J. Northern Land Council and Alister concerned inspection by the court of the documents over which privilege was claimed. In Gypsy Jokers Crennan J spoke more broadly of "information in documents", "certain material relied on for determination of a proceeding" and "confidential material before a court", which was not revealed to a party seeking it. In The Queen v Bebic (unreported, 27 May 1982) the Court of Criminal Appeal of New South Wales dealt specifically with the disclosure of the contents of an affidavit tendered in support of a public interest immunity claim. There Samuels JA, Nagle CJ at CL and Cantor J said at 4: Mr Mason tendered an affidavit in support of his claim for privilege. He submitted, however, that the affidavit should not be placed on the file, that is to say that it should be read only by the Court and not disclosed to the party calling, on the footing that the contents of the affidavit would or might themselves compromise the claims for privilege. We had and still have some doubts about the propriety of restricting the affidavit in the way proposed. However, it may well be that that course is, in certain cases, of which this is one, no more than a logical extension of the established practice of the Courts inspecting the allegedly privileged documents itself. Later at 5, after saying that the Court had read both documents in question and the affidavit in support of the claim for privilege, their Honours said: It seems to us that granted that it is now commonplace for judges to make a private inspection of documents in order to resolve a claim for privilege ..., it follows that in a proper case the judge may similarly keep to himself the affidavit by which the claim is supported. The Court then ordered that the affidavit remain sealed up with the papers on the ground that to disclose its contents might prejudice the claim for privilege. In seeking to establish an exceptional case the applicants' point out that they may be unable to make out their cases if the claim to immunity is upheld. The authorities establish that this consequence of the outcome of the process of balancing public interest immunity against the public interest, upon which the applicants rely, of having conventional access to evidentiary material, is not exceptional. Thus in the Scientology case at 76-77 Brennan J referred to the obstacles in a plaintiff's path in judicial review proceedings against the Director-General arising out of the restrictions imposed upon discovery in aid of proving what is and is not relevant to security. In the same case at 61 Mason J noted that a successful claim for privilege may exclude from consideration the very material on which a plaintiff hopes to base his argument. These observations of Mason J were quoted with approval by Gummow, Hayne, Heydon and Keifel JJ in Gypsy Jokers Inc 234 CLR at [24]. In that case at [5] Gleeson CJ said that the consequence of success of a claim for public interest immunity against disclosure of information is that the information is not available as evidence to be taken into account in deciding the outcome of judicial review proceedings. The Court would not be able to have regard to some, or perhaps any, of the information on which a public official's belief was based.


case_outcome: followed

case_text: same approach was taken by Lockhart J in Haj-Ismail v Minister for Immigration Multicultural and Ethnic Affairs (No 2) (1982) 45 ALR 379 at 389 in relation to a statement of reasons signed by the Acting Attorney-General disclosing the grounds for his objection to the production of documents for national security reasons. His Honour said, following Bebic : Initially I had some doubt about the propriety of restricting the disclosure of the very grounds themselves in the way proposed by the Acting Attorney-General; but it is really only another facet of the established practice whereby the courts may themselves inspect documents where objection is taken to their production. See also R v Khazaal [2006] NSWSC 1061.


case_text: carefully studied the redacted parts of the respondent's affidavit I have concluded that they should not be made available to the applicants' legal advisers, even on the giving of appropriate undertakings. There are many cases that establish that courts should attach very considerable weight to the view of what national security requires as is expressed by the responsible officer. See for example Leghaei v Director-General of Security [2007] FCAFC 56 at [56] - [58] , [62]. Although usually expressed in connection with the inspection of protected documents themselves, those observations apply also to an affidavit, such as that sworn in this case, which supplies the reasons for the claim to privilege. In the open part of his affidavit the respondent says that the disclosure of the redacted portions of his affidavit would be likely to prejudice national security. In the balance of the affidavit, in particular the redacted parts, he explains the basis for his opinion. Having read those parts, I am satisfied that the opinion is soundly based. Accordingly, the respondent may rely on his affidavit in support of his public interest claim without providing to the applicants' legal representatives the redacted parts thereof. The next question is whether the respondent's public interest immunity claims should be upheld. In Church of Scientology v Woodward [1982] HCA 78 ; (1980) 154 CLR 25 at 76 Brennan J said: Discovery would not be given against the Director-General [of Security] save in a most exceptional case. The secrecy of the work of an intelligence organization which is to counter espionage, sabotage, etc. is essential to national security, and the public interest in national security will seldom yield to the public interest in the administration of civil justice ... ... the veil of secrecy is not absolutely impenetrable ... But the veil is not penetrated merely by a plaintiff's deposition that he is not a security risk. That, after all, may be the very matter which is under investigation. See also Leghaei v Director-General of Security [2007] FCAFC at [52] and R v Khazaal [2006] NSWSC at [31]-[32].


case_title: R v Khazaal [2006] NSWSC 1061

case_text: same approach was taken by Lockhart J in Haj-Ismail v Minister for Immigration Multicultural and Ethnic Affairs (No 2) (1982) 45 ALR 379 at 389 in relation to a statement of reasons signed by the Acting Attorney-General disclosing the grounds for his objection to the production of documents for national security reasons. His Honour said, following Bebic : Initially I had some doubt about the propriety of restricting the disclosure of the very grounds themselves in the way proposed by the Acting Attorney-General; but it is really only another facet of the established practice whereby the courts may themselves inspect documents where objection is taken to their production. See also R v Khazaal [2006] NSWSC 1061. The next question is whether the respondent's public interest immunity claims should be upheld. In Church of Scientology v Woodward [1982] HCA 78 ; (1980) 154 CLR 25 at 76 Brennan J said: Discovery would not be given against the Director-General [of Security] save in a most exceptional case. The secrecy of the work of an intelligence organization which is to counter espionage, sabotage, etc. is essential to national security, and the public interest in national security will seldom yield to the public interest in the administration of civil justice ... ... the veil of secrecy is not absolutely impenetrable ... But the veil is not penetrated merely by a plaintiff's deposition that he is not a security risk. That, after all, may be the very matter which is under investigation. See also Leghaei v Director-General of Security [2007] FCAFC at [52] and R v Khazaal [2006] NSWSC at [31]-[32].


case_title: R v Meissner (1994) 76 A Crim R 81


case_title: R v Smith (1996) 86 A Crim R 308


case_title: Re Chief Commissioner of Police (Vic) (2005) 214 ALR 522


case_title: Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1


case_title: Secretary of State for the Home Department v AF [2009] UKHL 29


case_text: Land Council and Alister concerned inspection by the court of the documents over which privilege was claimed. In Gypsy Jokers Crennan J spoke more broadly of "information in documents", "certain material relied on for determination of a proceeding" and "confidential material before a court", which was not revealed to a party seeking it. In The Queen v Bebic (unreported, 27 May 1982) the Court of Criminal Appeal of New South Wales dealt specifically with the disclosure of the contents of an affidavit tendered in support of a public interest immunity claim. There Samuels JA, Nagle CJ at CL and Cantor J said at 4: Mr Mason tendered an affidavit in support of his claim for privilege. He submitted, however, that the affidavit should not be placed on the file, that is to say that it should be read only by the Court and not disclosed to the party calling, on the footing that the contents of the affidavit would or might themselves compromise the claims for privilege. We had and still have some doubts about the propriety of restricting the affidavit in the way proposed. However, it may well be that that course is, in certain cases, of which this is one, no more than a logical extension of the established practice of the Courts inspecting the allegedly privileged documents itself. Later at 5, after saying that the Court had read both documents in question and the affidavit in support of the claim for privilege, their Honours said: It seems to us that granted that it is now commonplace for judges to make a private inspection of documents in order to resolve a claim for privilege ..., it follows that in a proper case the judge may similarly keep to himself the affidavit by which the claim is supported. The Court then ordered that the affidavit remain sealed up with the papers on the ground that to disclose its contents might prejudice the claim for privilege. The same approach was taken by Lockhart J in Haj-Ismail v Minister for Immigration Multicultural and Ethnic Affairs (No 2) (1982) 45 ALR 379 at 389 in relation to a statement of reasons signed by the Acting Attorney-General disclosing the grounds for his objection to the production of documents for national security reasons. His Honour said, following Bebic : Initially I had some doubt about the propriety of restricting the disclosure of the very grounds themselves in the way proposed by the Acting Attorney-General; but it is really only another facet of the established practice whereby the courts may themselves inspect documents where objection is taken to their production. See also R v Khazaal [2006] NSWSC 1061.


case_text: some of the cases considered above, reference is made to disclosure of confidential information to legal advisers subject to appropriate undertakings. Such undertakings were offered in the present case. There are many cases in which access has been denied to legal advisers who have offered undertakings on the ground that the risk to national security flowing from inadvertent disclosure is simply too high. There is an elaborate discussion of this risk in Regina v Khazaal [2006] NSWSC at [31]-[39]. See also Traljesic v Attorney-General (Cth) [2006] FCA 125 ; (2006) 150 FCR 199 at [22] - [23] .


case_text: As senior counsel for both parties acknowledged, the resolution of their dispute depends upon the proper construction of s 705 - 70 of the ITAA 1997. In Commissioner of Taxation v Murry [1998] HCA 42 ; (1998) 193 CLR 605 Kirby J at 632 referred to authorities indicating that taxation statutes should generally not be narrowly construed. His Honour said that each case must depend upon its own statutory language and apparent statutory purposes. Neither party on this appeal suggested any particular policy behind s 705 - 70 which helpfully informed its construction in the present circumstances. 30 It is not disputed by the Commissioner that Envestra, and ESL and EQL, could have elected on or before 1 July 2002 (or, indeed, at any time until the formal adoption of the financial accounts of ESL and EQL respectively for the financial year ended 30 June 2003) under s 334(5) of the Corporations Act to apply the 1999 AASB 1020 to the statement of the financial position of ESL and EQL or to the consolidated financial statements of Envestra and its group. Had they done so, it is also common ground that the deferred tax liabilities of ESL and EQL measured in accordance with the 1999 AASB 1020 would have been liabilities of ESL and EQL under s 705 - 70 (1) of the ITAA for the purpose of working out the allocable cost amount of each of ESL and EQL joining the Envestra consolidated group. There is no apparent policy behind Pt 3 - 90 of the ITAA 1997, or in particular s 705 - 70 , which suggests such an outcome would be inappropriate.


case_text: But does the word "can" in s 705 - 70 (1) in its context mean that the possible adoption of the 1999 AASB 1020 by Envestra, ESL and EQL at 30 June 2002 (or until their financial accounts to 30 June 2003 were approved by their directors) enlivens s 705 - 70 (1)? Or does the word "can" in its context have some different meaning and function? It is a trite starting point, recognised by those rhetorical questions that it is desirable, where possible, to give meaning to every word used in a statute: Chu Kheng Lim v Minister for Immigration Local Government and Ethnic Affairs [1992] HCA 64 ; (1992) 176 CLR 1 at 12-13; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355 at 382.


case_title: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355


case_outcome: considered

case_text: Accounting standards of the AASB are not totally prescriptive. They may contain provisions which require or permit matters of judgment, and matters of choice. The use of the words "can or must" can therefore readily function as alternatives in relation to the AASB accounting standards which in fact apply in the determination of the accounting liabilities of a joining entity at the joining date. Some standards will direct the recognition of a particular accounting liability, and some will permit of a judgment or discretion as to whether a particular accounting liability is recognised. I do not think it is necessary to look to accounting standards which might have, but in fact did not, apply at the relevant time to give meaning and function to the word "can" in s 705 - 70 (1). Indeed, if that were contemplated by that provision, it would have been more appropriate to use words such as "could have been" or "may have been" as well as "can or must" in that provision. I think the use of the present tense points only to accounting standards which in fact apply in the determination of the accounting liabilities of the joining entity at the joining time. Although in a quite different context, I note that the expression "can comply" in s 1 of the Sex Discrimination Act 1975 (UK) and in s 1 of the Race Relations Act 1976 (UK) has been given a practical operative meaning rather than one which encompasses what is theoretically possible: Price v Civil Service Commission [1978] 1 All ER 1228; and Mandla (Sewa Singh) v Dowell Lee [1983] 2 AC 548 per Lord Fraser at 565-566 respectively.


case_title: Mandla (Sewa Singh) v Dowell Lee [1983] 2 AC 548


case_text: The significance of tense in the construction of s 23(g)(iii) of the ITAA 1936 was discussed by the Full Court of this Court in Cronulla Sutherland Leagues Club Ltd v Commissioner of Taxation (1990) 23 FCR 82 , especially per Lockhart J at 89 and per Beaumont J at 116. Of course, that case addressed a quite different context, so it merely provides an indication that tense may be a significant indicator to the proper construction of a taxation statute. See also Brookton Co-op Society Ltd v Commissioner of Taxation (Cth) [1981] HCA 28 ; (1981) 147 CLR 441 per Mason J at 451 and per Aickin J at 461-469.


case_title: Brookton Co-op Society Ltd v Commissioner of Taxation (Cth) [1981] HCA 28 ; (1981) 147 CLR 441


case_text: ACCC v Samton Holdings Pty Ltd & Ors (2002) 117 FCR 301 a Full Court of this Court considered the pre-history of s 51AA ([39] [42]); the text of s 51AA ([43] [45]); the way in which equity will intervene to prevent unconscionable behaviour and, in doing so, identified five categories of cases where equity will intervene and the relief it will provide ([46] [48]); and the scope of s 51AA ([49] [50]). Relevantly, in relation to the five categories, the Court observed at [48]: Under the rubric of unconscionable conduct, equity will: (i) Set aside a contract or disposition resulting from the knowing exploitation by one party of the special disadvantage of another. The special disadvantage may be constitutional, deriving from age, illness, poverty, inexperience or lack of education Commercial Bank of Australia Ltd v Amadio [(1983) [1983] HCA 14 ; 151 CLR 447]. Or it may be situational, deriving from particular features of a relationship between actors in the transaction such as the emotional dependence of one on the other Louth v Diprose [(1992) 175 CLR 62]; Bridgewater v Leahy [1998] HCA 66 ; (1998) 194 CLR 457. (ii) Set aside as against third parties a transaction entered into as the result of the defective comprehension by a party to the transaction, the influence of another and the want of any independent explanation to the complaining party Garcia v National Australia Bank Ltd [1998] HCA 48 ; (1988) 194 CLR 395. (iii) Prevent a party from exercising a legal right in a way that involves unconscionable departure from a representation relied upon by another to his or her detriment Waltons Stores (Interstate) Ltd v Maher [(1988) [1988] HCA 7 ; 164 CLR 387] ; Commonwealth v Verwayen [(1990) [1990] HCA 39 ; 170 CLR 394]. (iv) Relieve against forfeiture and penalty Legione v Hateley [(1983) [1983] HCA 11 ; 152 CLR 406] ; Stern v McArthur [(1988) [1988] HCA 51 ; 165 CLR 489]. (v) Rescind contracts entered into under the influence of unilateral mistake Taylor v Johnson [(1983) [1983] HCA 5 ; 151 CLR 422]. Each of these categories of case (the list may not be exhaustive) involves the identification of unconscionable conduct, albeit its content and degree will vary according to the category. It is a term which has various shades of meaning according to its context. There are different thresholds of conduct in various categories, all of which may be described as unconscionable G Dal Pont, "The Varying Shades of 'Unconscionable' Conduct Same Term, Different Meaning" (2000) 19 Aust Bar Rev 135 at p 165. I am of the view that the Access Agreement did not result from the knowing exploitation by Telstra of any special disadvantage of Optus whether constitutional or situational: the first category referred to in Samton Holdings ([48]). I am also of the view that this is not a case where equity needs to intervene to prevent Telstra from exercising a legal right in a way that involves unconscionable departure from a representation relied upon by Optus to its detriment: the third category referred to in Samton Holdings ([48]). The other categories there referred to are irrelevant. While the Full Court itself acknowledged the list may not be exhaustive, the fact that the terms of the Access Agreement were ultimately concluded in the way they were such that the conduct of Telstra which is impugned in this case was found to be a breach of contract would suggest that Optus was not only aware, which it undoubtedly was, that Telstra would have access to Optus' traffic information but that its disadvantage in this respect it did not have access to Telstra's traffic information was nevertheless counter-balanced by the restrictions on the use and disclosure of such information. The fact that Telstra acted in contravention of those restrictions does not make its conduct unconscionable. It follows that I also decline to find that Telstra engaged in unconscionable conduct in contravention of s 51AA of the TPA. I will direct the parties to bring in short minutes of order to give effect to these reasons and the reasons published on 30 April 2009, as well as to move the proceeding to its next phase. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate: Dated: 10 July 2009 Counsel for the Applicant: Mr RM Smith SC and MR C Dimitriadis Solicitor for the Applicant: Baker & McKenzie Counsel for the Respondent: Mr CRC Newlinds SC and Mr IR Pike Solicitor for the Respondent: Mallesons Stephen Jaques Date of Hearing: 7, 8 and 10 October 2008 Date of Judgment: 10 July 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/728.html


case_outcome: referred to

case_text: the learned authors of Meagher, Gummow and Lehane's Equity, Doctrine and Remedies , 4 th ed., observe at 41-025 it may be accepted that, since Moorgate Tobacco Co Ltd v Philip Morris Ltd (No. 2) [1984] HCA 73 ; (1984) 156 CLR 414 , there exists a general equitable jurisdiction to grant relief against actual or threatened abuse of confidential information not involving any tort or breach of contract (at 438 per Deane J in delivering the judgment of the High Court). But where there exists a contract, the position is not as clear. The learned authors had earlier said (at 41-020): Where there is a contract then it is to the contract that the court should look to see from express words or necessary implication what the obligations of the parties are and the introduction of equitable concepts should be resisted. On the other hand, as the learned authors go on to acknowledge, there have been a number of cases involving a contractual nexus where judges have nevertheless treated equitable principles at length as if they overlapped or were concurrent with the common law. Nevertheless, where, as here, there is not only a contract between the parties, but a contract which, in its terms, defines 'Confidential Information' on an exhaustive basis (cl 1.1 of the Access Agreement) and regulates the obligations of each party in relation to the Confidential Information of the other party on a comprehensive basis (cl 15 of the Access Agreement), there is, in my view, no reason for the intervention of equity for the simple reason that there is no need for its intervention to achieve justice between the parties for conduct which is common to both the finding of breach of contract and the ground relied on for equitable intervention. Moreover, the conclusion expressed in [4] above is reinforced where, as here, the contract contains a provision such as cl 16.1 which provides: Save to the extent that another provision of this agreement expressly provides for (or expressly excludes or limits) a remedy, a liability or a form of compensation in relation to an act, omission or event, this clause 16 shall regulate the liability (whether arising in contract, in tort, under statute or in any other way and whether due to negligence, wilful or deliberate breach or any other cause) of a party to each other party under and in relation to this agreement and in relation to any act, omission or event relating to or arising out of this agreement.


case_outcome: applied

case_text: Comcare v Commonwealth (2007) 163 FCR 207 ; [2007] FCA 662 ( Trooper Lawrence ) Madgwick J said at [116] [123]: 116. The overriding principle in assessing penalty is that the amount of the penalty should reflect the Court's view of the seriousness of the offending conduct in all , the relevant circumstances: Coochey v Commonwealth [2005] FCA 1165 ; (2005) 149 FCR 312 and the cases there cited. 117. The relevant circumstances will vary from case to case and by reference to the objects of the particular legislation which has been contravened. 118. Pursuant to s 3 of the OHS Act the objects of the Act include: (a) to secure the health, safety and welfare at work of employees of the Commonwealth and of Commonwealth authorities; and ... (d) to promote an occupational environment for such employees at work that is adapted to their needs relating to health and safety; ... (f) to encourage and assist employers, employees and other persons to whom obligations are imposed under the Act to observe those obligations; and (g) to provide for effective remedies if obligations are not met, through the use of civil remedies and, in serious cases, criminal sanctions. 119. The applicant contends that guidance may be had from decisions relating to penalty under State occupational health and safety laws which import like obligations on employers. 120. Decisions under the cognate New South Wales Act refer to the following considerations among others: (i) the penalty must be such as to compel attention to occupational health and safety generally, to ensure that workers whilst at work will not be exposed to risks to their health and safety; (ii) it is a significant aggravating factor that the risk of injury was foreseeable even if the precise cause or circumstances of exposure to the risk were not foreseeable; (iii) the offence may be further aggravated if the risk of injury is not only foreseeable but actually foreseen and an adequate response to that risk is not taken by the employer; (iv) the gravity of the consequences of an accident does not of itself dictate the seriousness of the offence or the amount of penalty. However the occurrence of death or serious injury may manifest the degree of the seriousness of the relevant detriment to safety; (v) a systemic failure by an employer to appropriately address a known or foreseeable risk is likely to be viewed more seriously than a risk to which an employee was exposed because of a combination of inadvertence on the part of an employee and a momentary lapse of supervision; (vi) general deterrence and specific deterrence are particularly relevant factors in light of the objects and terms of the Act; (vii) employers are required to take all practicable precautions to ensure safety in the workplace. This implies constant vigilance. Employers must adopt an approach to safety which is proactive and not merely reactive. In view of the scope of those obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the employer in the future. This is particularly so where the employer conducts a large enterprise which involves inherent risks to safety; (viii) regard should be had to the levels of maximum penalty set by the legislature as indicative of the seriousness of the breach under consideration; (ix) the neglect of simple, well-known precautions to deal with an evident and great risk of injury, take a matter towards the worst case category; (x) the objective seriousness of the offence, without more may call for the imposition of a very substantial penalty to vindicate the social and industrial policies of the legislation and its regime of penalties. The applicant contends that the above approach is particularly relevant in the context of the subject OHS Act. The evident purpose of making the Commonwealth liable to a penalty for a breach of s 16(1) of the OHS Act is to mark the seriousness of the conduct and act as a deterrent to the Commonwealth, Commonwealth agencies and other persons who may be subject to the OHS Act. 122. The respondent submitted: Care must be taken in the use of criminal cases arising under occupational health and safety legislation in the various State jurisdictions. Unlike subsection 16(1) of the OHS Act, the New South Wales equivalent imposes an absolute obligation on an employer to secure the health and safety of its employees, a circumstance that has guided the New South Wales courts in their approach to penalties in criminal proceedings under the NSW legislation. Subsection 11(2) of the OHS Act very deliberately excludes the Commonwealth and Commonwealth authorities (other than Government business enterprises) from liability for prosecution for an offence under the Act. The reasons for this exclusion must go beyond simply easing the procedural and evidentiary burdens faced by Comcare and its investigators in making the Commonwealth accountable for occupational health and safety breaches. As Giles JA observed in Adler v ASIC [2003] NSWCA 131 ; (2003) 46 ACSR 504 , [658]: "Civil penalties can be regarded as punitive, with a resemblance to fines imposed on criminal offenders, but the resemblance is not identity". I nevertheless consider that, despite the differences between the New South Wales and the Commonwealth legislation, and bearing in mind that these are civil and not criminal proceedings, the considerations enumerated above, mainly enunciated in decisions of the New South Wales Industrial Commission, provide useful, analogical, general guidance as to the approach to be taken in consideration of penalties under the Commonwealth Act. Both parties accepted that these remarks provided useful guidance in assessing the amount of a pecuniary penalty in the present case. Comcare accepted that the Commonwealth did not consciously or deliberately disregard the safety of cadets. There was no conscious decision to flout the law. Mr Rozen said that in Trooper Lawrence 163 FCR 2007 Madgwick J held that, absent such features, a case could not fall within the worst category. Mr Rozen, however, contested this view and argued that the absence of such features did not remove the case from the worst category. In Trooper Lawrence 163 FCR 2007 Madgwick J said at [125]: I cannot impose the maximum penalty for the reason suggested by Mr Maurice QC for the respondent, namely that there was no conscious decision to flout the law, this is not quite in the worst class of case. The seriousness of the breaches of the law mean, however, that the case is close to being in the worst class. There were systemic failures of the most serious kinds. His Honour was referring to the circumstances of the particular case before him. I doubt that he was seeking to lay down a general principle concerning the operation of the section. Such a reading would not sit comfortably with the approach of his Honour expressed in [116] [117]. There His Honour emphasised that the overriding principle in assessing penalty is that the amount should reflect the Court's view of the seriousness of the offending conduct in all the circumstances. It is possible to imagine cases of the extreme end of seriousness, perhaps involving multiple fatalities, where the maximum penalty would be ordered even though there was no deliberate flouting of the law. Then Mr Livermore referred to two Victorian Court of Appeal cases in addition to reference to the guidance provided by Madgwick J in Trooper Lawrence [2007] FCA 662 ; 163 FCR 207. These references were designed to throw some light on the analysis of the facts in the present case. However, the width of the factual enquiry in each particular case makes comparison with the facts of other cases of rather limited assistance. Each case must be assessed on its own facts. With that reservation in mind, I deal first with Director of Public Prosecutions v Yarra Valley Water Limited (2006) 159 IR 395 ; [2006] VSCA 279. In that case an employee was killed when the endplate blew off a stretch of pipe and struck him. The pipe was being pressure tested by a contractor. The contract required the testing to be done with water which was the recognised method. Instead, the test was conducted with air, thereby causing the accident. Nettle JA said at [3], [4] and [6]: 3. First, this case results from a tragedy. The victim of the offence lost his life in the course of his work through no fault of his own. That could have been avoided if the respondents had known more about the techniques employed in their operations. It is because of their failure to know and to take appropriate action that they fall to be punished. Secondly, this case is a long way from Amcor , to which King, A.J.A. refers in her reasons; for there was here no attempt to cut corners for the sake of supposed economies or any calculated disregard of the safety of men. To the contrary, and despite the fact of the offending, the evidence bespeaks two organisations committed to the safety of their workforce and whose modus operandi was to do and pay for what they understood to be necessary to achieve it. The tragedy here came about because of a lack of knowledge and ultimately human error. ... 6. No one denies that the nature and gravity of these offences was serious and therefore that they warranted substantial penalties. General deterrence is the pre-eminent sentencing consideration in matters of this kind and therefore any contravention of s 21 of the Occupation Health and Safety Act 1985 which results in death or serious injury is liable to be visited with heavy penalties. But for the reasons essayed by King, A.J.A. in her judgment, the level of culpability in this case was not high and it is apparent from the improvements made to the respondents' systems since the offences were committed that there is no need for specific deterrence. It should also be understood that both respondents were without any prior convictions and according to the evidence each had a well deserved reputation for safety in the workplace. [original emphasis, footnotes omitted]


case_text: to the overriding caution expressed by Flick J in Comcare v Post Logistics Australasia Pty Ltd (2008) 178 IR 200 ; [2008] FCA 1987 at [38] in the passage which follows, these statements reflect the proper approach to assessing penalty: Care must be taken to ensure that any listing of potentially relevant considerations do not themselves become an impermissible substitute for considering the terms of the legislation in issue or an unnecessary constraint upon a discretion conferred in otherwise unconfined terms. The Submissions of Comcare Mr Rozen, who appeared as counsel for Comcare, submitted that the contraventions in this case were in the worst category. He argued that the risk of a cadet suffering an allergic reaction to peanuts contained in a ration pack was both foreseeable and foreseen. This was, he argued, a significant aggravating factor. The Australian National Audit Office report in 1996 drew attention to the risk of ADF personnel suffering allergic reactions as a result of lack of awareness of the ingredients in the ration packs. The report recommended: ... that Army needs to provide greater assurance that personnel are aware of the contents of ration packs prior to issue so that individuals can make alternative arrangements where medical circumstances warrant. Army could also investigate the development of alternative components to allow use by personnel with medical conditions that preclude consumption of current components. It seems from an affidavit sworn on 5 June 2009 by Alfred John Purvis, Director, Health System Program Office, Defence Material Organisation, that the ADF responded to this report by including the ingredients list in ration packs from 1997. However, there was no warning of the dangers of food allergy on the ration packs, and no indication of the ingredients on the beef satay pouch in the ration packs provided to Nathan and Nivae Anandaganeshan and Gene van den Broek. Then, Mr Rozen contended that the grave consequences, particularly Nathan's death, but also the exposure of Nivae Anandaganeshan and Gene van den Broek to the danger of death, pointed to the seriousness of the risk to safety that arose from the contravention of s 16(1). Next, it was contended that the threat to safety in this case arose from a systemic failure rather than from the inadvertence of the victim or a momentary lapse of supervision. Here, parents were required to advise the camp organisers of any medical conditions of the cadets. The cadets were not permitted to bring their own food on the camp. The medical details were collated but the list was not given to those responsible for distributing food to the cadets. There was thus a failure to have a system whereby the medical details relating to food allergies were available to those distributing the ration packs, and no sufficient attention was given to the potential risk to cadets with food allergies.


case_outcome: discussed

case_text: also relied on the following passage from Workcover Authority of New South Wales v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at 714 (quoting with approval from Lawrenson Diecasting Pty Ltd v Workcover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464): [T]he primary factor to look at in relation to the penalty to be imposed is the objective seriousness of the offence. Particularly in cases involving a serious breach of the OH & S Act, subjective factors, such as a plea of guilty, co-operation with the investigation and subsequent measures taken to improve safety, must play a subsidiary role in determination of penalty to the gravity of the offence itself. See also Director of Public Prosecutions v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557 ; [2005] VSCA 219 ( Amcor ) at [35] where this passage was cited. Then Mr Livermore referred to two Victorian Court of Appeal cases in addition to reference to the guidance provided by Madgwick J in Trooper Lawrence [2007] FCA 662 ; 163 FCR 207. These references were designed to throw some light on the analysis of the facts in the present case. However, the width of the factual enquiry in each particular case makes comparison with the facts of other cases of rather limited assistance. Each case must be assessed on its own facts. With that reservation in mind, I deal first with Director of Public Prosecutions v Yarra Valley Water Limited (2006) 159 IR 395 ; [2006] VSCA 279. In that case an employee was killed when the endplate blew off a stretch of pipe and struck him. The pipe was being pressure tested by a contractor. The contract required the testing to be done with water which was the recognised method. Instead, the test was conducted with air, thereby causing the accident. Nettle JA said at [3], [4] and [6]: 3. First, this case results from a tragedy. The victim of the offence lost his life in the course of his work through no fault of his own. That could have been avoided if the respondents had known more about the techniques employed in their operations. It is because of their failure to know and to take appropriate action that they fall to be punished. Secondly, this case is a long way from Amcor , to which King, A.J.A. refers in her reasons; for there was here no attempt to cut corners for the sake of supposed economies or any calculated disregard of the safety of men. To the contrary, and despite the fact of the offending, the evidence bespeaks two organisations committed to the safety of their workforce and whose modus operandi was to do and pay for what they understood to be necessary to achieve it. The tragedy here came about because of a lack of knowledge and ultimately human error. ... 6. No one denies that the nature and gravity of these offences was serious and therefore that they warranted substantial penalties. General deterrence is the pre-eminent sentencing consideration in matters of this kind and therefore any contravention of s 21 of the Occupation Health and Safety Act 1985 which results in death or serious injury is liable to be visited with heavy penalties. But for the reasons essayed by King, A.J.A. in her judgment, the level of culpability in this case was not high and it is apparent from the improvements made to the respondents' systems since the offences were committed that there is no need for specific deterrence. It should also be understood that both respondents were without any prior convictions and according to the evidence each had a well deserved reputation for safety in the workplace. [original emphasis, footnotes omitted] In Amcor 11 VR 557, a worker was killed when drawn into an unguarded machine used in a paper manufacturing operation. There had been a number of injuries suffered by workers in the past and reports highlighting the potential danger of the machine. The risk of injury was obvious. The Court of Appeal allowed the appeal against sentence and imposed a penalty of $180,000 for each of two counts of the Victorian statutory provision equivalent to s 16(1) of the Act. Consideration Neither of the parties disputes that the death of Nathan involved a serious contravention of the Act. There are several features which identify the contravention as particularly serious. Nathan was 13 years old. It was his first cadet camp. He was possibly the youngest boy on the camp. The breach of duty in this case involved the failure to take care of a child. The respondent had a special responsibility given Nathan's youth to ensure that his safety was protected. Further, the danger of harm to people suffering food allergy was made known to the ADF by the 1996 Australian National Audit Office report. And, in the year prior to the camp there was renewed attention to the dangers of food allergy in schools. The State government working party on which the Association of Independent Schools of Victoria was represented had formulated its guidelines by the end of 2006. I infer from the change in the Scotch College medical form for use in the 2007 enrolment that the school was aware of the peril of anaphylaxis to people suffering food allergy. And I infer from the establishment of the working party and distribution of the Guidelines that food allergy in schools was a matter of general community concern at the time of Nathan's death. Then, the Scotch College Cadet Unit notified parents that cadets were not expected to provide their own food. The Unit required medical information and Nathan's parents provided that information. Despite this, the Commonwealth supplied ration packs with food containing peanut and failed to take the simple precaution of having the medical details available when the ration packs were distributed. That would have allowed those supervising the distribution to ensure that boys suffering food allergy did not receive ration packs containing peanut.


case_outcome: approved

case_text: the case of victims of criminal acts, legislation now provides for courts to hear their voices through victim impact statements: for example see Div 1A of Pt 6 of the Sentencing Act 1991 (Vic). That legislation broadened the type of evidence which a court could consider in the course of sentencing in criminal cases: R v Dowlan [1998] 1 VR 123 at 138-9 per Charles JA. But even at common law a criminal court was entitled to take into account the impact on a victim in order to assess the severity of criminal conduct: R v Medini [2002] VSC 12 at [45] . In Director of Public Prosecutions v DJK [2003] VSCA 109 ( DJK ) Vincent JA explained the value of victim impact statements in a way which is equally applicable to evidence given by those affected by the failure of employers to comply with their occupational health and safety obligations. He said at [17] - [18] that such statements: ... constitute a reminder of what might be described as the human impact of crime. They draw to the attention of the judge who would of necessity have to consider the possible and probable consequences of criminal behaviour, not only its significance to society in general but the actual effect of a specific crime upon those who have been intimately affected by it. The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court's attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statement must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made. Nevertheless, there has been an increasing level of appreciation by the courts of the value of victim impact statements. In my view they play an important role with respect to an aspect of the criminal law to which reference is not often made. They play their part in achieving what might be termed social and individual rehabilitation. Rehabilitation, in this sense, is not perceived from the perspective of the offender, but from that of those persons who have sustained loss and damage by reason of the commission of an offence. ... It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the response of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for the wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim's perspective, an apparent failure of the system to recognize the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation. The evidence of Mr and Mrs Francis is a good example of the purpose of such evidence as explained by Vincent JA in DJK [2003] VSCA 109. The extent to which their evidence is directly relied upon in the sentencing process is described later in these reasons. Evidence concerning the state of knowledge in the community about peanut allergy The second issue on which the Court sought further assistance from Comcare was the state of knowledge in March 2007 about peanut allergy in the community generally and in the school community in particular. Initially the only prior knowledge of peanut allergy on which Comcare relied against the Commonwealth was the Australian National Audit Office Report in 1996 which was in limited in its terms and will be discussed later. But general knowledge suggested that peanut allergy awareness was a very live issue in the school community by March 2007. Comcare responded to the Court's request by filing an affidavit sworn on 11 May 2009 by Dr Jo Ann Douglass. Dr Douglass is a specialist physician and Head of the Department of Allergy, Asthma and Immunology Service at the Alfred Hospital in Melbourne. She was a member of the Allergy and Anaphylaxis Working Party established in 2006 by the Victorian Department of Health Services. The Working Party was chaired by Dr Robert Hall, the Chief Health Officer for Victoria, and included paediatric allergy physicians, representatives of general practitioners, consumer advocacy groups, representatives of the Office for Children and the Department of Education and Training. It held its first meeting on 13 September 2006. The working party developed guidelines which were published in November 2006 by the Office of School Education and entitled "Anaphylaxis Guidelines: A resource for managing severe allergies in Victorian Government schools" (the Guidelines). The document acknowledges the contributions of various bodies including the Association of Independent Schools of Victoria. The Guidelines address how anaphylaxis can be prevented as follows: The key to prevention of anaphylaxis in schools is knowledge of those students who are at risk, awareness of triggers (allergens) and prevention of exposure to these. Schools need to work with parents and students to ensure that certain foods or items are kept away from the student while at school. The Guidelines then outline a number of prevention strategies for school camps and remote settings as follows:


case_text: Mr Livermore referred to two Victorian Court of Appeal cases in addition to reference to the guidance provided by Madgwick J in Trooper Lawrence [2007] FCA 662 ; 163 FCR 207. These references were designed to throw some light on the analysis of the facts in the present case. However, the width of the factual enquiry in each particular case makes comparison with the facts of other cases of rather limited assistance. Each case must be assessed on its own facts. With that reservation in mind, I deal first with Director of Public Prosecutions v Yarra Valley Water Limited (2006) 159 IR 395 ; [2006] VSCA 279. In that case an employee was killed when the endplate blew off a stretch of pipe and struck him. The pipe was being pressure tested by a contractor. The contract required the testing to be done with water which was the recognised method. Instead, the test was conducted with air, thereby causing the accident. Nettle JA said at [3], [4] and [6]: 3. First, this case results from a tragedy. The victim of the offence lost his life in the course of his work through no fault of his own. That could have been avoided if the respondents had known more about the techniques employed in their operations. It is because of their failure to know and to take appropriate action that they fall to be punished. Secondly, this case is a long way from Amcor , to which King, A.J.A. refers in her reasons; for there was here no attempt to cut corners for the sake of supposed economies or any calculated disregard of the safety of men. To the contrary, and despite the fact of the offending, the evidence bespeaks two organisations committed to the safety of their workforce and whose modus operandi was to do and pay for what they understood to be necessary to achieve it. The tragedy here came about because of a lack of knowledge and ultimately human error. ... 6. No one denies that the nature and gravity of these offences was serious and therefore that they warranted substantial penalties. General deterrence is the pre-eminent sentencing consideration in matters of this kind and therefore any contravention of s 21 of the Occupation Health and Safety Act 1985 which results in death or serious injury is liable to be visited with heavy penalties. But for the reasons essayed by King, A.J.A. in her judgment, the level of culpability in this case was not high and it is apparent from the improvements made to the respondents' systems since the offences were committed that there is no need for specific deterrence. It should also be understood that both respondents were without any prior convictions and according to the evidence each had a well deserved reputation for safety in the workplace. [original emphasis, footnotes omitted]


case_text: also relied on the following passage from Workcover Authority of New South Wales v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at 714 (quoting with approval from Lawrenson Diecasting Pty Ltd v Workcover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464): [T]he primary factor to look at in relation to the penalty to be imposed is the objective seriousness of the offence. Particularly in cases involving a serious breach of the OH & S Act, subjective factors, such as a plea of guilty, co-operation with the investigation and subsequent measures taken to improve safety, must play a subsidiary role in determination of penalty to the gravity of the offence itself. See also Director of Public Prosecutions v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557 ; [2005] VSCA 219 ( Amcor ) at [35] where this passage was cited.


case_title: R v Dowlan [1998] 1 VR 123

case_text: the case of victims of criminal acts, legislation now provides for courts to hear their voices through victim impact statements: for example see Div 1A of Pt 6 of the Sentencing Act 1991 (Vic). That legislation broadened the type of evidence which a court could consider in the course of sentencing in criminal cases: R v Dowlan [1998] 1 VR 123 at 138-9 per Charles JA. But even at common law a criminal court was entitled to take into account the impact on a victim in order to assess the severity of criminal conduct: R v Medini [2002] VSC 12 at [45] . In Director of Public Prosecutions v DJK [2003] VSCA 109 ( DJK ) Vincent JA explained the value of victim impact statements in a way which is equally applicable to evidence given by those affected by the failure of employers to comply with their occupational health and safety obligations. He said at [17] - [18] that such statements: ... constitute a reminder of what might be described as the human impact of crime. They draw to the attention of the judge who would of necessity have to consider the possible and probable consequences of criminal behaviour, not only its significance to society in general but the actual effect of a specific crime upon those who have been intimately affected by it. The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court's attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statement must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made. Nevertheless, there has been an increasing level of appreciation by the courts of the value of victim impact statements. In my view they play an important role with respect to an aspect of the criminal law to which reference is not often made. They play their part in achieving what might be termed social and individual rehabilitation. Rehabilitation, in this sense, is not perceived from the perspective of the offender, but from that of those persons who have sustained loss and damage by reason of the commission of an offence. ... It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the response of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for the wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim's perspective, an apparent failure of the system to recognize the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation.


case_title: R v Medini [2002] VSC 12


case_title: R v Propsting [2009] VSCA 45

case_text: the criminal law it is established that a maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed. In Veen v R (No 2) [1988] HCA 14 ; (1988) 164 CLR 465 at 478; [1988] HCA 14 , Mason CJ, Brennan, Dawson and Toohey JJ said: That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. In R v Propsting [2009] VSCA 45 , Vincent JA said at [15]: There is a stage at which conduct becomes so egregious that it must be regarded as being of a kind attracting the imposition of a very substantial, if not the maximum, penalty for the commission of the offence involved regardless of whether a more serious example could be imagined.


case_title: Workcover Authority of New South Wales v Profab Industries Pty Ltd (2000) 49 NSWLR 700


case_text: non-indigenous respondents reminded me of the criteria for the admissibility and role of expert opinion evidence. They referred, in particular, to Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 ; (2001) 52 NSWLR 705 at [59] [86] (Heydon JA), and to my own judgments in Allstate Life Insurance Co v ANZ (No 6) (1996) 64 FCR 79 at 83 84 and Harrington-Smith v Western Australia (No 7) at [20]. I need not embark upon a general discussion of the rules governing the admissibility of expert opinion evidence. Anthropologists' notes as evidence of facts


case_text: circumstances pose a particular difficulty for the Claim groups. They bear the onus of proving that the group rights and interests they claim derive from laws and customs as they existed at sovereignty, that is, at 1829. Lack of evidence in this respect tells against them, and in favour of those who oppose their Claims. Yet substantial written records relating to Aboriginal people in the Goldfields do not begin until the 1890s. Contrast the recent case of Bennell v Western Australia [2006] FCA 1243 ; (2006) 153 FCR 120 in which European settlement and accompanying written records occurred soon after sovereignty. Of course, it should not be assumed that if the Goldfields had been settled in 1829, a record of the local position at that time would necessarily have supported the present Claims: it may have defeated them. The point is simply that contemporaneous records do not exist, and any evidentiary vacuum works against the Claim groups. Since the evidence does not establish any important and relevant event between 1829 and the earliest European records relating to the Goldfields, I infer that the situation that existed immediately when the written record began was like that at sovereignty. As discussed at 3.1 below, however, there are constraints on the 'retrospective inferences' that can properly be drawn. It is, for example, one thing to infer from European observation of the presence of semi-nomadic Aboriginal people in the Wongatha Claim area in and after 1869 that semi-nomadic Aboriginal people were to be found in the Wongatha Claim area in 1829. It is another thing to infer that the latter were the ancestors of the people observed and would have 'occupied' the area where the former were observed. (b) The difficulty of proving claims to land by various groupings of semi-nomadic people The indigenous people of the Western Desert led semi-nomadic lives. They roamed over large areas, determined primarily by the availability of water and food. Since animals also needed water, the location of water in pools, rockholes and 'soaks' was all important. Indeed, the Aboriginal word for water, ' kapi ' (there are different spellings, such as ' gabi '), was also used to refer to one's 'country' in the sense of the main watering place to which one returned, particularly in time of drought. It is for this reason, that a preference has been expressed for 'semi-nomadic' rather than 'nomadic' (but I will often use 'nomadic' without the qualifier).


case_title: Branfield v Wharton [2004] FCAFC 138

case_text: my view, the applicable test under s 61(1) is that a pre-Amending NTA application, that was amended after the commencement of the Amending NTA, is 'made' to the Court under Div 1 of Pt 3 of the New NTA if the amended application is properly to be regarded as a 'new application' or a 'fresh application': see Wharton on behalf of the Kooma People v Queensland [2003] FCA 1398 at [25] [27] (Emmett J) (leave to appeal refused: Branfield v Wharton [2004] FCAFC 138) ; Briggs v Minister for Lands (NSW) [2004] FCA 1056 ; (2004) 141 FCR 17 at [28] (Moore J); McKenzie v South Australia (2005) 214 ALR 214 at [31] (Finn J). Against the possibility that the following authorities are properly to be understood as going so far, I should say, with respect, that I do not agree that any post-amending NTA amendment necessarily triggers the authorisation requirement: cf Quall v Risk [2001] FCA 378 (O'Loughlin J) at [63], [65]; Dieri People (Mansfield J) at [18]; Edward Landers v South Australia [2003] FCA 264 ; (2003) 128 FCR 495 (' Edward Landers ') (Mansfield J) at [4], [5].


case_title: Briggs v Minister for Lands (NSW) [2004] FCA 1056 ; (2004) 141 FCR 17


case_title: Browne v Dunn (1893) 6 R 67

case_text: the above reasons, my conclusion is that the Wongatha application, in its original and subsequent forms, was not authorised by all the persons who (hypothetically) hold the group rights and interests comprising the particular native title claimed, as required by s 61(1) of the NTA. The accompanying affidavits under s 62(1) of the NTA and Browne v Dunn (1893) 6 R 67 The Wongatha applicants submit that there is sufficient compliance with s 61(1) and that '[t]he evidence on authorisation was simply not disputed'. They submit that the allegations raised in final submissions were not put to the applicants in cross-examination. Fourteen of the 40 persons who attended the Maku Stadium meeting testified, but only four of them were cross-examined about the meeting at all, and none as to how they learned of it. Aubrey Lynch said: call a meeting with all the applicants that had actually lodged a claim in the area to come to a meeting at the Maku Stadium so that we can discuss amalgamation.' If the word 'applicants' in this passage were to be understood in a literal sense, it would signify that it was only antecedent applicants, not antecedent claimants, who attended. There would then arise in stark form the question of their authority to commit their respective claim groups to a combination. Apart from Aubrey Lynch, no applicant was cross-examined on the decision making process at the meeting. Doreen Harris said that she was aware of the meeting but could not attend. Eleven of the 12 Wongatha applicants testified, and none were challenged on the content of their s 62 affidavits. The Wongatha applicants submit that in the circumstances a failure to cross-examine witnesses on authorisation enlivens a principle analogous to that associated with Browne v Dunn (1893) 6 R 67 (' Browne v Dunn '). Subsection 62(1) of the NTA provides, relevantly, that a claimant applicant must be accompanied by an affidavit sworn by the applicant: that the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it; and stating the basis on which the applicant is authorised as mentioned in subparagraph (iv).' In a case such as the present one, all 12 Wongatha applicants are jointly 'the applicant': NTA s 253 ('applicant'), s 61(2). Authorisation is dealt with in s 251B (see 1.5 [75]). There is no prescribed form of accompanying affidavit. Each of the 12 affidavits that accompanied the Form 1 that was annexed to Mr de Kerloy's affidavit sworn 3 February 1999 and filed on 8 February 1999, stated, relevantly: am authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to the application pursuant to the process of decision making that: under the traditional laws and customs of the persons in the native title claim group, must be complied with in relation to authorising things of that kind; and the persons in the native title claim group have also agreed to and adopted in relation to authorising the making of the application and dealing with matters and in relation to doing things of that kind.' The 12 s 62 affidavits that accompanied the Form 1 filed on 1 November 1999 contained an almost identical formulaic paragraph. On 10 December 2003, the last day of the taking of evidence, in Perth, months after all indigenous testimony had concluded in the Goldfields, the Wongatha applicants tendered the successive Wongatha Forms 1 and accompanying s 62 affidavits. Group 6A objected to the tender of the affidavits. In response to a question by me, counsel for the Wongatha applicants said that he wished to rely on them as if they were read and as evidence of the truth of their contents. He claimed that the Wongatha applicants had indicated to the other parties since April 2003, that they intended to tender the documents and that no one had raised an objection. On 23 February 2004, I ordered that: shall be two folders of Forms 1 including affidavits annexed to them, without prejudice to the right of any party to make submissions that no weight or little weight should be given to the affidavits.' In the somewhat unusual circumstances, I do not think that the failure to cross-examine all the Wongatha applicants who testified on their s 62(1) affidavits activates a principle analogous to that of Browne v Dunn . All parties proceeded on the basis that a return to the Goldfields for cross-examination of the remaining 11 Wongatha applicants who testified on their affidavits was out of the question, and that it was a matter for me to determine the weight to be given to the affidavits in the light of all the evidence on authorisation that was before the Court. The Browne v Dunn principle is one of fairness. I do not think there is unfairness to the Wongatha applicants in the respondents being permitted to succeed on the authorisation point. Of course, if the applicants' Browne v Dunn submission had succeeded, the result would not be that the Court would be required to treat the Wongatha application as if it had been duly authorised. Conclusion on authorisation Authorisation goes to the Court's jurisdiction to make a determination on the present application: see the authorities cited at [1171] and [1172] above. I am not at liberty to fail to resolve the issue over jurisdiction that the respondents have raised. I hold that the Court does not have jurisdiction to hear and determine the Wongatha application. Against the possibility that I am wrong, however, I will proceed to deal with the Wongatha Claim on its merits. 4.2 RELEVANT SOCIETY AT THE TIME OF SOVEREIGNTY ('THE ANCESTRAL SOCIETY')


case_text: The native title that is recognised and protected by the NTA is the native title as defined in the s 223 (1) of the NTA, and the NTA, and, in particular, that definition, must be the starting point for any consideration of an application for a determination of native title brought under the NTA: Commonwealth v Yarmirr [2001] HCA 56 ; (2001) 208 CLR 1 (' Yarmirr HCA ') at [7] (Gleeson CJ, Gaudron, Gummow and Hayne JJ) ('joint judgment'); Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1 (' Ward HCA ') at [16] (Gleeson CJ, Gaudron, Gummow and Hayne JJ) ('joint judgment'); Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 ; (2002) 214 CLR 422 (' Yorta Yorta HCA ') at [32] (Gleeson CJ, Gummow and Hayne JJ) ('joint judgment'). (21) The existence and content of native title must be ascertained as a matter of fact and on a case by case basis by reference to the traditional laws acknowledged and the traditional customs observed by the indigenous people who posses the title: Mabo (No 2) at 58 (Brennan J); Wik at 169 (Gummow J); Commonwealth v Yarmirr [1999] FCA 1668 ; (1999) 101 FCR 171 at [16] (Beaumont and von Doussa JJ); Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316 (' Ward FCAFC' ) at [58] (Beaumont and von Doussa JJ). The importance of the indigenous evidence in an application for a determination of native title was accepted by all parties who referred to acknowledgments of its importance in the authorities: see Yarmirr v Northern Territories (No 2) (1998) 82 FCR 533 (Olney J) at 560; De Rose FCA/O'Loughlin J at [351]; Attorney-General (NT) v Maurice [1986] HCA 80 ; (1986) 161 CLR 475 at 492 (Deane J); and Ejai v Commonwealth [1993] WASC 1744 (Unreported, Owen J, 18 March 1994) at 9 . Nevertheless, some issues deserve mention. The word 'claim' and its derivatives gave rise to difficulty. Witnesses were asked what area they claimed as their country and why they claimed it. The intention was to direct attention to places or areas 'claimed' under traditional Aboriginal law and custom. But some witnesses answered by reference to a Claim area, when it was clear that there were vast parts of that area in which they did not claim to have any rights or interests under traditional law and custom. This difficulty was but one illustration of a more general one: the impact that the NTA and associated practices and procedures have had upon the claimants' knowledge and understanding. Second, in the GLSC Appendices, the GLSC applicants list, on more than 2,000 pages, extracts from the transcript of the indigenous evidence, organised under topic headings. The non-indigenous respondents made many criticisms of these Appendices. On occasion, a passage of transcript set out does not support the proposition for which it is cited, or gives a false impression of the witness's testimony in the absence of context. Sometimes, too, editorial omissions from the quoted transcript passage are not indicated. It is difficult to avoid the impression that a computer program has been used to collect all references in the transcript in which a particular subject is mentioned. The GLSC applicants have also often cited, as evidence that a particular Claim group continues to acknowledge and observe traditional laws and customs, evidence purporting to show that a member of a different Claim group does so.


case_text: the authorisation requirement of s 61(1) is not complied with, the non-compliance is fatal to the success of the application: Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [48] ; Strickland at [56]-[57] (approved in WA v Strickland at [77]-[78]); Drury v Western Australia [2000] FCA 132 ; (2000) 97 FCR 169 at [10] ; Daniel v Western Australia (2002) 194 ALR 278 (FCA) at [11]; De Rose FCA/O'Loughlin J at [933]. Authorisation must be by all the persons who constitute the native title claim group in respect of the common or group rights and interests comprising the particular native title claimed: Risk v National Native Title Tribunal [2000] FCA 1589 at [30] ; Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at [55] (' Dieri People '); Tilmouth v Northern Territory [2001] FCA 820 ; (2001) 109 FCR 240 (' Tilmouth ').


case_text: onus of proving the existence (including the continued existence, ie non-extinguishment) of native title rests on applicants: Ward FCAFC at [117]; Members of the Yorta Yorta Aboriginal Community v Victoria [2001] FCA 45 ; (2001) 110 FCR 244 at [159] ; De Rose FCA/O'Loughlin J at [8]; Daniel v Western Australia [2003] FCA 666 at [146] [148] (' Daniel '); Neowarra at [431]; Coe v Commonwealth [1993] HCA 42 ; (1993) 118 ALR 193 (HCA) at 206. In saying this, I am referring to both the ultimate burden and the evidentiary burden in respect of all the elements of native title, subject to one qualification: in relation to extinguishment, a respondent bears an evidentiary burden of proving the existence of its title and of the rights exercisable under it, while the burden of proving that those rights are not inconsistent with the claimed native title rights and interests, rests on the applicants: Daniel at [148]. Group 6A submits that no evidence has been provided of authorisation of the further amended application of 2003. It also submits that the Wongatha applicants imply that later amendments were authorised by a s 251B(b) process. It is not clear to which amendments Group 6A is referring. It is not clear that the amendments made in 2003 required authorisation. They did not relate to a change of applicants (cf NTA ss 64(5) , 66B ) and they may have been within the Wongatha applicants' power to 'deal with all matters arising under [the NTA] in relation to the application': NTA s 62A and Drury v Western Australia [2000] FCA 132 ; (2000) 97 FCR 169 at [9] - [15] ). Most of the 2003 amendments were designed to make the application conform to the law; cf Daniel v State of Western Australia [2003] FCA 666 at [69] .


case_text: There is a distinction between a claim formulated by reference to the traditional laws and customs of the claimants as constituting 'a discrete cohesive society or community', as in Yorta Yorta , for example, and a claim formulated by reference to the traditional laws and customs of a larger 'overarching' society such as 'the Western Desert bloc society' or 'Western Desert society' as in De Rose v South Australia [2002] FCA 1342 ( 'De Rose FCA / O'Loughlin J '), and, according to the various Claim groups' submissions, as in the present case. The possibility cannot be excluded a priori that rights and interests in relation to land or waters are possessed by claimants who do not constitute a discrete cohesive society or community, under the traditional laws and customs of the larger overarching society, which are acknowledged and observed by such claimants. The question would arise, however, whether the traditional laws and customs of that larger society provide for claimants of that description to possess such rights and interests: De Rose v South Australia [2003] FCAFC 286 ; (2003) 133 FCR 325 (' De Rose FCAFC ') at [273] [278] . The claimants would still have to prove that they continued to acknowledge and observe the laws and customs of the larger overarching society, and that they possessed rights and interests under those laws and customs: De Rose FCAFC at [281].


case_title: De Rose v South Australia [2003] FCAFC 286 ; (2003) 133 FCR 325


case_text: In the case of a claim of communal or group rights or interests, s 223(1)(a) requires the claimant community or group to establish that they have those rights and interests under traditional laws acknowledged and traditional customs observed by that community or group , and it is not sufficient that other Aboriginal peoples acknowledge and observe the traditional laws and customs. This does not mean, however, that such a claim can succeed only if every member of the community or group is shown to acknowledge and observe the relevant traditional laws and customs. The question is one of fact and degree to be determined on the circumstances of each case: De Rose v South Australia (No 2) [2005] FCAFC 110 ; (2005) 145 FCR 290 (' De Rose (No 2) FCAFC ') at [57]-[58]. Accordingly, not only, as noted earlier, must the sustaining 'society' continue to acknowledge and observe the laws and customs: if the native title claim group is not that society but only part of it, that group must also acknowledge and observe them. Whether it does so again raises questions of fact and degree. (17) The requirement that the rights and interests be 'in relation to land or waters' (s 223 (1)) is not satisfied by a right formulated as 'a right to maintain, protect and prevent the misuse of cultural knowledge': Ward HCA at [57] [61] (joint judgment). (18) It is not a necessary element of the 'connection' to which s 223(1)(b) refers that the claimants presently physically occupy, visit or use the claim area, or have done so in the recent past: Ward HCA at [62] [64] (joint judgment). Their Honours stated ([64]): doubt there may be cases where the way in which land or waters are used will reveal something about the kind of connection that exists under traditional law or custom between Aboriginal peoples and the land or waters concerned. But the absence of evidence of some recent use of the land or waters does not, of itself, require the conclusion that there can be no relevant connection . Whether there is a relevant connection depends, in the first instance, upon the content of traditional law and custom and, in the second, upon what is meant by "connection" by those laws and customs. This latter question was not the subject of submissions in the present matters, the relevant contention being advanced in the absolute terms we have identified and without examination of the particular aspects of the relationship found below to have been sufficient. We, therefore, need express no view, in these matters, on what is the nature of the "connection" that must be shown to exist. In particular, we need express no view on when a "spiritual connection" with the land (an expression often used in the Western Australian submissions and apparently intended as meaning any form of asserted connection without evidence of continuing use or physical presence) will suffice.' (my emphasis) It is possible for Aboriginal peoples to observe traditional laws and customs during periods when they have not, for one reason or another, maintained a physical connection with the claim area, but the length of the time of non-use or non-occupation may, depending on the circumstances, have an important bearing on whether traditional laws and customs continue to be acknowledged and observed: De Rose (No 2) FCAFC at [62]. I have, in fact, found to be more applicable to the facts of the present Claims, the following passage from another Full Court judgment in the more recent case of Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 ; (2005) 145 FCR 442 at [80] : ..., the society identified as the repository of the traditional laws and customs is a cultural bloc whose members are dispersed in groups over a large arid or semi-arid area an inference of communal ownership of native title rights and interests derived from its laws and customs may be difficult if not impossible to draw . In De Rose v South Australia (No 2) [2005] FCAFC 110 the Court held that a native title determination could be made in favour of individuals or small groups who held native title rights under the traditional laws and customs of a society or community of which they are part. That was identified as the Western Desert Bloc. It was not necessary that the native title holders constituted a society or community in their own right. Each case will, of course, depend upon its own facts.' (my emphasis.) facts in De Rose


case_text: the authorisation requirement of s 61(1) is not complied with, the non-compliance is fatal to the success of the application: Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [48] ; Strickland at [56]-[57] (approved in WA v Strickland at [77]-[78]); Drury v Western Australia [2000] FCA 132 ; (2000) 97 FCR 169 at [10] ; Daniel v Western Australia (2002) 194 ALR 278 (FCA) at [11]; De Rose FCA/O'Loughlin J at [933]. Authorisation must be by all the persons who constitute the native title claim group in respect of the common or group rights and interests comprising the particular native title claimed: Risk v National Native Title Tribunal [2000] FCA 1589 at [30] ; Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at [55] (' Dieri People '); Tilmouth v Northern Territory [2001] FCA 820 ; (2001) 109 FCR 240 (' Tilmouth '). In my view, the applicable test under s 61(1) is that a pre-Amending NTA application, that was amended after the commencement of the Amending NTA, is 'made' to the Court under Div 1 of Pt 3 of the New NTA if the amended application is properly to be regarded as a 'new application' or a 'fresh application': see Wharton on behalf of the Kooma People v Queensland [2003] FCA 1398 at [25] [27] (Emmett J) (leave to appeal refused: Branfield v Wharton [2004] FCAFC 138) ; Briggs v Minister for Lands (NSW) [2004] FCA 1056 ; (2004) 141 FCR 17 at [28] (Moore J); McKenzie v South Australia (2005) 214 ALR 214 at [31] (Finn J). Against the possibility that the following authorities are properly to be understood as going so far, I should say, with respect, that I do not agree that any post-amending NTA amendment necessarily triggers the authorisation requirement: cf Quall v Risk [2001] FCA 378 (O'Loughlin J) at [63], [65]; Dieri People (Mansfield J) at [18]; Edward Landers v South Australia [2003] FCA 264 ; (2003) 128 FCR 495 (' Edward Landers ') (Mansfield J) at [4], [5]. The Commonwealth and Group 6A rely on the related cases, Dieri People and Edward Landers . There were two applications in those cases. The first was brought by eight named people to whom I will refer as 'the Dieri Mitha', and was expressed to be brought on behalf of 'the Dieri People'. The second was brought, also on behalf of the Dieri people (but see below), but by an 'Edward Landers group' which was a sub-group of the Dieri People. The second application was in respect of an area wholly within the area the subject of the Dieri Mitha application. The Edward Landers application added to its description of the group on whose behalf the application was brought, the words: native title claim group however specifically excludes all of those people listed as being the applicant group in the particulars of claim filed in the [Dieri Mitha proceeding], whilst those people's names appear as members of that applicant group' Mansfield J noted ( Dieri People at [3]) that subject to that exclusion, it was not inaccurate to describe the Edward Landers application as being on behalf of 'the Dieri People'. In Edward Landers , the Dieri Mitha group sought a striking out of the Edward Landers application under s 84C or a summary dismissal of it under O 20, r 2(1)(a) of the FCRs. In Dieri People , the Edward Landers group sought a striking out or summary dismissal of the Dieri Mitha application. The grounds relied on in each motion were in substance the same. In Dieri People , after referring to authorities, his Honour again observed ( Dieri People at [55]), that the NTA did not permit the making of a claim by a sub-group of the 'native title claim group' or the 'grant' [sic] of native title to a sub-group of the 'real' native title claim group. I agree. In my opinion, there must be a coincidence between (a) the native title claim group as defined in ss 61(1) and 253 of the NTA (the actual holders of the particular native title claimed); (b) the claim group as defined in the Form 1; and (c) all of the persons who authorised the making of the application, and who must be named or otherwise defined in the Form 1 as required by s 61(4). In Dieri People , Mansfield J held ([56]) that the native title claim group was 'the community of persons comprising the Dieri People', but the claim group described in the Dieri Mitha application was a smaller group of some Dieri people only. His Honour dismissed the application for non-compliance with the authorisation requirement of s 61(1) of the NTA. I return now to the Wongatha Claim. The Wongatha applicants submit that the small claim groups in Dieri and Landers acknowledged that they were only part of 'the proper claimant group', and that the 'Court's reasoning focuses' on the authorisation by the claimants, not by those potential native title holders who may eventually be subject to a determination. They also submit, in relation to the Maduwongga application, that s 61 should not be interpreted to require authorisation of the Wongatha application by Ms Strickland and Ms Nudding, who elected to continue with their own native title claim and therefore asserted that they hold native title other than the particular native title claimed by the Wongatha applicants. The Cosmo applicants submit that any apparent overlap in group membership (as between the Wongatha and Cosmo Claim groups) is due to claims being brought on the basis of different views of how country is claimed, which is a matter to be decided on the evidence. They say that the exclusion clauses are articulations of the operation of the traditional law of Western Desert land tenure which, they submit, allows for choice in claiming country. I do not see any basis on which the Court could make a determination in favour of a group that did not include those members of the Wongatha People who were excluded in the Wongatha Form 1 filed on 1 November 1999. As Mansfield J held in both Dieri People and Edward Landers , s 61 permits a native title determination application to propose only a determination in favour of all the members of the native title claim group. By reason of the exclusion, the Wongatha Claim does not meet the requirements of ss 61(1) and (4). I discussed Dieri People and Edward Landers in the context of the Wongatha application at 4.1 [1209] ff, and will not repeat the discussion here. Those cases are not on all fours with the Wutha case because the determination that was sought was one on behalf of the larger group. Mansfield J held ( Dieri People at [54]-[57]; Edward Landers at [29]-[33]), in substance, that there must be a coincidence between the group for which a determination is sought and the authorising group. With respect, I agree, and refer to my discussion at 4.1 [50].


case_text: the authorisation requirement of s 61(1) is not complied with, the non-compliance is fatal to the success of the application: Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [48] ; Strickland at [56]-[57] (approved in WA v Strickland at [77]-[78]); Drury v Western Australia [2000] FCA 132 ; (2000) 97 FCR 169 at [10] ; Daniel v Western Australia (2002) 194 ALR 278 (FCA) at [11]; De Rose FCA/O'Loughlin J at [933]. Authorisation must be by all the persons who constitute the native title claim group in respect of the common or group rights and interests comprising the particular native title claimed: Risk v National Native Title Tribunal [2000] FCA 1589 at [30] ; Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at [55] (' Dieri People '); Tilmouth v Northern Territory [2001] FCA 820 ; (2001) 109 FCR 240 (' Tilmouth '). Group 6A submits that no evidence has been provided of authorisation of the further amended application of 2003. It also submits that the Wongatha applicants imply that later amendments were authorised by a s 251B(b) process. It is not clear to which amendments Group 6A is referring. It is not clear that the amendments made in 2003 required authorisation. They did not relate to a change of applicants (cf NTA ss 64(5) , 66B ) and they may have been within the Wongatha applicants' power to 'deal with all matters arising under [the NTA] in relation to the application': NTA s 62A and Drury v Western Australia [2000] FCA 132 ; (2000) 97 FCR 169 at [9] - [15] ). Most of the 2003 amendments were designed to make the application conform to the law; cf Daniel v State of Western Australia [2003] FCA 666 at [69] .