case_text: In SW Hart & Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466 , Gibbs CJ said (at 472): "The notion of reproduction, for the purposes of copyright law, involves two elements - resemblance to, and actual use of, the copyright work, or, to adopt the words which appear in the judgment of Willmer LJ in Francis Day & Hunter Ltd v Bron [1963] Ch 587 at 614, "a sufficient degree of objective similarity between the two works" and "some causal connection between the plaintiffs' and the defendants' work". Lord Reid said in Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273 at 276 ...: 'Broadly, reproduction means copying, and does not include cases where an author or compiler produces a substantially similar result by independent work without copying. And, if he does copy, the question whether he has copied a substantial part depends much more on the quality than on the quantity of what he has taken'." 67 Their Honours referred to the well-known passage from the judgment of Gibbs CJ in SW Hart & Co v Edwards Hot Water Systems, cited earlier in these reasons for judgment, and then continued: "[44] 'Causal connection' and 'objective similarity' are not referred to in the Act, and are but the components of the Act's concept of 'reproduction'; Eagle at [98]. Causal connection is sometimes inferred from access to the copyright work in suit and sufficient objective similarity between it and the work said to infringe. But the two elements are conceptually distinct: a young child may try to copy a drawing, yet fail, for lack of skill, to reproduce it; a skilful copier may attempt to copy a work on the basis of his or her recollection of it, yet fail for imperfection of memory; a chain of communications from the observer of a work to the ultimate author of an intended copy of it may be so defective that, again, the intended copy fails to reproduce the original. But even a perfect copy, if truly accidental and independent, is also not a 'reproduction', because the necessary causal link between the two works is missing: cf Ladbroke at 276 per Lord Reid; Eagle at [85], [86]. [45] Tamawood concedes that there can be an infringement although the author did not directly copy from, or even know of , the copyright work. The primary judge cited, in this connection, LED at 225, but that case did not go so far as Tamawood 's concession does. In LED , a director of the alleged infringer gave instructions to its drafters for modifications to be made to bring plans into line with the copyright plans of the applicant. The comparable situation in the circumstances of the present case would be that Mr Mizikovsky filled Ms Gould's role, that is to say, that he, as an officer of Tamawood, and knowing of the Chirnside plan and intending to take from it , gave the unsuspecting Mr Middleton instructions for modifications to the Adrian, which, in fact, when implemented, would bring it into line with the Chirnside. On his Honour's findings, that is not this case. [46] The primary judge expressed (at [42]) surprise at a statement in Eagle (at [86]) that 'where subjective copying occurs there can be expected to be found an infringement, unless it transpires that the product is so dissimilar to the copyright work that the copyright work can no longer be seen in the work produced'. Referring to an expectation, that statement allows for exceptions. Also it must be read in context. As stated earlier in the judgment (at [72]) Eagle was better regarded as a case of reproduction of the whole of the copyright work, so it was strictly not necessary to undertake the 'substantial part' inquiry. Eagle was a case of subjective copying of the shapes and arrangement of, and interrelationship between rooms, and of traffic flow, throughout the house. The statement which surprised his Honour is akin to that of Lord Bingham in Designers Guild Ltd v Russell William (Textiles) Ltd [2001] FSR 113 (' Designers Guild' ) that: '[w]hile the finding of copying did not in theory conclude the issue of substantiality, on the facts here [Designers Guild was also a case of overall similarity] it was almost bound to do so.' (at 116-117) It was acknowledged several times elsewhere in the judgment in Eagle (at [69], [74] and [103], for example) that subjective copying alone is not enough, and that where a part is taken it must be a substantial part of the copyright work. (Peterson J's aphorism, 'what is worth copying is prima facie worth protecting', a statement made in University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601 at 610 in relation to the subsistence of copyright, was in fact invoked in the context of infringement and 'substantial part' in Ladbroke by Lord Reid at 279 and by Lord Pearce at 293-294, but the House of Lords may be taken to have cautioned against this practice in Designers Guild )." 69 In the absence of any direct evidence of copying, or access by the respondent to the applicant's work, the causal link can be inferred. The greater the degree of objective similarity, the more likely it will be that that inference will be drawn: SW Hart & Co v Edwards Hot Water Systems (at 472); Clarendon Homes v Henley Arch and Barrett Property Group Pty Ltd v Carlisle Homes Pty Ltd [2008] FCA 375 . 71 Determining whether "a substantial part of the work" has been reproduced is a question of fact and degree. As indicated, greater weight must be given to the quality of what is reproduced than to its quantity: SW Hart & Co v Edwards Hot Water Systems. The protected element may arise out of a combination of elements, any one of which considered individually might not qualify as sufficiently original to attract copyright. An allegation of substantial reproduction will be made out if what has been taken is an essential or material part of the applicant's work: Autodesk Inc v Dyason [No 2] [1993] HCA 6 ; (1993) 176 CLR 300 per Mason CJ at 305; Tamawood v Henley Arch at [52]; and Dixon Investments Pty Ltd v Hall (1990) 18 IPR 490 at 494 per Lockhart, Spender and Ryan JJ .


case_outcome: cited

case_text: Copying can be conscious or subconscious: Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd (1999) 46 IPR 309 at [24]. In Francis Day & Hunter Ltd v Bron, Willmer LJ explored the idea of "subconscious" copying. His Lordship said (at 612-614): "I confess that I have found the notion of subconscious copying one of some difficulty, for at first sight it would seem to amount to a contradiction in terms, the word 'copying' in its ordinary usage connoting what is essentially a conscious process ... The conclusion at which I arrive on this part of the case is that subconscious copying is a possibility which, if it occurs, may amount to an infringement of copyright. But in order to establish liability on this ground, it must be shown that the composer of the offending work was in fact familiar with the work alleged to have been copied."


case_text: Copying in relation to building plans is not confined to tracing and can be established even where there are significant differences between the finished products. In LED Builders Pty Ltd v Eagle Homes Pty Ltd (1996) 35 IPR 215 , there were differences in room sizes, window placings, wall alignments, and cupboards between the plans of the applicant and respondent. Nonetheless, these differences were minor and there was found to be reproduction of a substantial part of the applicant's plans. 65 Davies J found that the respondent did not ask its draftsmen to copy the applicant's plans. The respondent gave instructions to change the respondent's existing plans, both by way of sketches and orally, which, when implemented, would bring those plans into line with the applicant's plans. This was said to constitute deliberate copying, though achieved by the giving of instructions for change rather than the direct tracing of one plan from another. There was thus a causal connection between the two sets of plans. 93 In support of its argument, Inform noted Davies J's comments in LED Builders v Eagle Homes , in which he said (at 217): "What stands out is that the overall positioning, orientation, and designs of the rooms, of the entry and of the garage are practically identical. So also is the general relationship between the house and its environs. Note that in each case, the garage is in the same position in LED's and Eagle's comparable drawings, notwithstanding that the garage in drawings A1 and A2 is situated differently from the garage in drawings B1 and B2." 116 Inform contended that the authorities were careful to point out that the conceptual limits of project home copyright should not be overstated: Eagle Homes v Austec Homes ; LED v Eagle Homes and Clarendon Homes v Henley Arch, Tamawood v Henley Arch and Barrett Property Group v Metricon Homes . It noted that copyright protection had been given to the combination and arrangement of rooms and spaces in a design and the "flow" or movement and other aspects arising from that arrangement and associated design choices (eg Eagle Homes v Austec Homes).


case_text: An important case for present purposes is Tamawood Ltd v Henley Arch Pty Ltd (2004) 61 IPR 378. It also concerned copyright in project home designs. The trial judge found that copyright had been infringed. On appeal, Wilcox and Lindgren JJ in a joint judgment observed in relation to copyright and project homes generally: "[38] The application of the law of copyright to project home plans gives rise to special difficulty. All modern homes have certain features in common. In the case of project homes competing for the same number of dollars, there are pressures towards sameness. Of course, the size, number of rooms and facilities will vary according to the price range. Commonly, however, those in the same price range will be found: (a) to be designed to fit blocks of approximately similar shape and dimensions; (b) to provide for vehicular access and accommodation; and (c) to include features demanded by the market in question, such as, a certain number of bedrooms, a laundry, a kitchen, a family or rumpus room, an ensuite and a walk-in wardrobe ('WIR') in association with the main bedroom, built-in wardrobes in the other bedrooms, at least one bathroom in proximity to the other bedrooms, and certain facilities in the kitchen such as a sink, bench, dishwasher, stove, hot plate and microwave oven. [39] The idea-form distinction, often elusive, is particularly so in the case of project homes. Yet the originality threshold for copyright protection is low. It is no longer challenged that copyright subsisted in the Chirnside Works and Buildings, as well as in the Baltimore Works and Buildings. [40] Although copyright subsists in the whole of a plan or house, this does not mean that each individual part of it, considered in isolation, satisfies the originality test for the subsistence of copyright, that is to say, that it originated with the author. Some parts may be original only in the sense that they are part of a whole which did originate with the author. So, Lord Pearce was able to say that to copy an unoriginal part of a copyright whole is not an infringement: cf Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273 ("Ladbroke") per Lord Pearce at 293. [41] The taking of an idea, as distinct from its expression, from a copyright work will also not constitute an infringement, since there is no copyright in ideas: cf Kenrick & Co v Lawrence & Co (1890) 25 QBD 99 ( "Kenrick" ). Common examples concern objects in the real world or ideas based on objects in the real world. A person who draws or photographs an object does not, through the copyright in the drawing or photograph, become entitled to prevent others from drawing or photographing the same object, even though there may be a striking similarity between the two drawings or between the two photographs. The drawing of plans for project homes involves a mixture of the use of familiar ideas based on objects in the real world (many other project homes and the plans for them) on the one hand, and labour, skill and judgment (in combining and arranging the various parts) on the other hand. It may be possible to say of each individual part, considered in isolation, that it merely expresses a common idea, yet there will be copyright in the whole plan if the combination and arrangement originated with the author. In protecting that origination, copyright protects the author's labour, skill and judgment. [42] It is reasonable to expect that the more simple, commonplace, familiar and straightforward the subject matter of a copyright work, the closer the similarity that will be required if infringement is to be found: cf Kenrick at 102." 68 What is clear from Clarendon Homes v Henley Arch, and Tamawood v Henley Arch in particular , as well as the other cases cited, is that in order to prove infringement of copyright there must be proof of copying. As indicated, copying can be deliberate or subconscious although, as the Full Court observed in Clarendon Homes v Henley Arch at [24], in cases involving works such as architectural plans, it would be surprising to find many cases of subconscious copying. If a person independently creates a work that is substantially similar or even identical to another in which copyright subsists, the copyright holder has no recourse: Eagle Homes Pty Ltd v Austec Homes Pty Ltd [1999] FCA 138 ; (1999) 87 FCR 415 at [86] per Lindgren J. 71 Determining whether "a substantial part of the work" has been reproduced is a question of fact and degree. As indicated, greater weight must be given to the quality of what is reproduced than to its quantity: SW Hart & Co v Edwards Hot Water Systems. The protected element may arise out of a combination of elements, any one of which considered individually might not qualify as sufficiently original to attract copyright. An allegation of substantial reproduction will be made out if what has been taken is an essential or material part of the applicant's work: Autodesk Inc v Dyason [No 2] [1993] HCA 6 ; (1993) 176 CLR 300 per Mason CJ at 305; Tamawood v Henley Arch at [52]; and Dixon Investments Pty Ltd v Hall (1990) 18 IPR 490 at 494 per Lockhart, Spender and Ryan JJ . 75 Inform submitted that this objective similarity was a matter of impression for the Court to undertake as a lay observer. That there were differences between the relevant Inform and Boutique plans was to be expected and was in no way determinative. In relation to what it termed the "legacy features", which could be seen as carrying over from the Villa Grand to the Villa View, Inform noted that the question was addressed in Tamawood v Henley Arch. In that case, Wilcox and Lindgren JJ concluded that such features should be "subtracted" from the assessment of what had been reproduced. However, Moore J, in his dissenting judgment, reached the conclusion that they should not. 76 Notwithstanding this, Inform said that a number of key features not present in the Villa Grand could be seen to have been introduced into the Villa View, which reproduced "with remarkable fidelity" features from the Seasons. They were: • the relocation and orientation of the staircase; • the redesign of the hallway space and spine on the ground floor; • the cleaner line between hall and dining space at front of the house with no columns and reduced articulation of the separation between that room and the hallway; • the placement of the study at the front of the house; • the shift forward of the garage; • the 'straighter' alignment of the front of the house with the garage; • the arrangement of the downstairs laundry and toilet 'wet areas' around the stair, which have the same 'footprint' on the two plans, although the disposition of the laundry and toilet within the footprint is varied; • the arrangement upstairs of the bathrooms and toilet around the stairway; • the rearrangement of the children's bedrooms in a cluster at the rear without separation by a bathroom; • the introduction of the island bedhead/wardrobe in the master bedroom; and • the spatial arrangement and disposition of en suite bathroom, robe and master bedroom. 77 Even subtracting the "legacy features" from the Villa Grand that were present in the Villa View design, and allowing for the slight differences in dimension and arrangement of some of the spaces, Inform argued that there remained a striking similarity between the Villa View and Inform's Seasons and Urban plans. 88 As noted above, copyright subsists in the work as a whole. It will be infringed if a "substantial part" of the work is reproduced, though no separate copyright is conferred on that part. As was noted in Tamawood v Henley Arch, the critical question will be whether the part or parts taken represented a substantial part of the labour, skill and judgment of the author that made the whole work "original". Plainly, this involves questions of degree. 89 As indicated above, Inform relied on the evidence of Mr Meyer and Mr Wines to submit that a number of features, which were material, essential or important parts of the Urban and Seasons designs, are found in the Villa View. Of these features, the most significant is the arrangement of a centralized staircase in proximity to a "core" of wet areas with living area and bedrooms then arranged around that core. Inform submitted that this aspect of the design of the Seasons and Urban was of key qualitative significance. 90 Despite Mr Rivette's suggestions in cross-examination that the central staircase, and arrangement of wet areas around it, were unremarkable features in commercial design, Inform contended that Boutique had not been able to offer any evidence of these features forming part of the "common stock" in project housing before the Urban and Seasons. Inform noted how the central stair in the Urban and Seasons could have been pushed further forwards or backwards in the buildings or rotated to face the front or rear. Its placement where it was represented a concrete choice by Mr Meyer from which other choices, such as the subsequent arrangement of surrounding rooms, flowed. Similarly, Inform contended, the arrangement of the wet areas around the stairs had no functional or cost benefits but was simply a choice made from many which were available. This was also true of the separation and arrangement of the downstairs meals and living rooms and the upstairs rooms around the core. Inform said that, despite Boutique's attempts to portray these aspects of the design of the Inform homes as being the result of the requirements of building on narrow blocks and satisfying building codes, this was not the case. 94 In addition it drew attention to the comments of Wilcox and Lindgren JJ in Tamawood v Henley Arch, in which their Honours said (at [89]) : "It would be tedious to attempt to identify the most important features of the Chirnside which were taken. In our opinion, cumulatively, they constituted a substantial part of the Chirnside. As between the Chirnside and the Adrian, the parts of the Chirnside that were taken were "distinctively" Chirnside. We regard: • the absence of protrusions from bedroom 1 and bedroom 2 and of diagonal walls and hampers between the dining and living areas; • the glassed conservatory-style meals area between the rumpus room and the kitchen; • the lack of diagonal walls and hamper between the rumpus and family rooms; • the glass walls of the rumpus room; and • the absence of a door and built-in wardrobe of bedroom 5/study, as essential and material non-functional parts of the Chirnside, regarded as an artistic work, that were copied. We prefer, however, to say that all of the items which we have concluded were taken from the Chirnside, when regarded cumulatively, amount to a substantial part of the Chirnside." 95 In reply, Boutique submitted that even if I found that there had been copying, it would still not have infringed Inform's copyright. It submitted that any such copying, assuming it had occurred, was not done in relation to a "substantial part" of Inform's work. 97 Boutique submitted that in considering whether a "substantial part" of Inform's work had been reproduced, I should bear in mind the observations of Wilcox and Lindgren JJ in Tamawood v Henley Arch at [56]: "Placing a kitchen in reasonable proximity to a dining room, and bedrooms in reasonable proximity to each other and to a bathroom is suggested by broad functional considerations. Those proximities would not be a substantial part of a plan or house regarded as an artistic work. Moreover, they would be ideas. But broad functional requirements can be satisfied in more ways than one. Some features of the project home plan may be dictated by aesthetics and decorative concerns, for example. In these ways, the labour, skill and judgment of the author are called upon. The dividing line between that which is dictated by broad functional requirements and that which is not, is, however, often unclear." 98 Boutique submitted that in order to determine whether the relevant causal connection was established, the Court had to identify that part of Inform's work that was the subject of copying, whether consciously or subconsciously. In that regard, Inform's case was that the essential features of its Urban and Seasons designs that were reproduced were those set out by its counsel in his opening, namely: • a long narrow rectangular plan forming a "spine" to the building; • a centrally positioned free-standing staircase; • minimized hallway space downstairs and upstairs; • creation of a central services "core" around the stairwell ie placement of the kitchen adjacent to the stairwell but not abutting a permitter wall; • placement of other "service" areas such as laundry powder room and en suite bathroom around the stairwell; • placement of living and bedrooms around the core in zones; • master bedroom at front of house, forward of stairs (upstairs) with an island style bedhead/robe; • rumpus room and children's rooms upstairs at rear; • arrangement of the children's rooms; • arrangement of bathrooms upstairs; • open informal living spaces on ground floor with visual floor to rear of house; • a meals area extending into the yard creating a courtyard effect with garage; • a garage arranged to side of the house; • façade/elevation arrangements designed to break down the visual and spatial massing of the building; and • a relatively low pitch roofline. 99 Boutique submitted that many of these features were either mere ideas or common to all project homes. It will be recalled that in Tamawood v Henley Arch, the Court observed (at [38]) that the application of the law of copyright to project home plans gave rise to special difficulty. All modern homes had certain features in common and, in the case of project homes competing for the "same number of dollars", there were pressures towards sameness. See also Eagle Homes v Austec Homes at [80] per Lindgren J . In Henley Arch Pty Ltd v Clarendon Homes (Aust) Pty Ltd (1998) 41 IPR 443 , Merkel J (at 460) went so far as to suggest that the degree of the protection under copyright of an architectural plan might be limited by reason of the proportion of features common to all plans. 101 For functional reasons, kitchens are normally located in reasonable proximity to dining areas. For similar reasons, in a two-level home, bedrooms are usually positioned upstairs in reasonable proximity to each other. In Tamawood v Henley Arch, the Court observed (at [56]) that proximities such as these would not be a substantial part of any plan or house regarded as an artistic work. Moreover, they would be ideas and not the expression of ideas. 102 Boutique argued that the design of project homes was invariably dictated by features such as the size and shape of the block of land available, the requirements of Rescode (the planning scheme provisions applying to residential developments in Victoria), local government requirements, and cost considerations. 103 Inform conceded that many of the features identified by Boutique as common to project homes were present in the Villa Grand 35 plan, to which Inform took no exception. Indeed, a number of those features were present in the earlier Mawson Lakes home as well. Boutique submitted that these pre-existing elements had to be excluded from any analysis of what may have been derived from Inform's work. In Tamawood v Henley Arch, Wilcox and Lindgren JJ said at [64]: "Obviously, it is important in considering the similarities between the Gould and Chirnside plans, to discount the pre-existing similarities between the Chirnside and the Adrian: the Gould was 'based' on the Adrian, not the Chirnside." 104 Boutique argued that when one excluded these common and pre-existing features, all that was left was the central core of the Urban and Seasons, that being the staircase and its position in the house with the wet services area around it. In that regard, even Mr Wines conceded that a central staircase was hardly novel. Moreover, a staircase that folds back on itself has been around for centuries. Mr Meyer acknowledged that such a staircase was quite standard and that the structure of a staircase that wrapped around a blade wall or balustrade was not uncommon in 1999 when he designed the Core house. He agreed that the staircase in the Villa View differed from that used in the Urban and Seasons in that it did not appear to wrap around a blade wall, but rather a balustrade. 105 Mr Wines accepted that commercial and high-rise properties often had wet service areas surrounding the vertical core. He accepted that this concept had been adopted by both Inform and Boutique and that it made good sense as an economy measure. He agreed that the wet areas were configured above each other in the Villa Grand and that this same approach had been taken in the design of the Villa View. Mr Meyer accepted that other architects or designers might have been using a central staircase with serviced wet areas surrounding it at the time that he designed the Core house in 1999.


case_outcome: considered

case_text: What is clear from Clarendon Homes v Henley Arch, and Tamawood v Henley Arch in particular , as well as the other cases cited, is that in order to prove infringement of copyright there must be proof of copying. As indicated, copying can be deliberate or subconscious although, as the Full Court observed in Clarendon Homes v Henley Arch at [24], in cases involving works such as architectural plans, it would be surprising to find many cases of subconscious copying. If a person independently creates a work that is substantially similar or even identical to another in which copyright subsists, the copyright holder has no recourse: Eagle Homes Pty Ltd v Austec Homes Pty Ltd [1999] FCA 138 ; (1999) 87 FCR 415 at [86] per Lindgren J. 72 A "substantial part" can be constituted by the arrangement of rooms in a design, as well as by matters such as traffic flow throughout a house: Eagle Homes v Austec Homes . Although questions of "substantiality" and "reproduction" are ultimately for the Court to determine, it is permissible and of assistance to have regard to expert opinion to resolve those questions: Ancher, Mortlock, Murray & Woolley Pty Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278 at 286 and Barrett Property Group v Metricon Homes at [28]. 99 Boutique submitted that many of these features were either mere ideas or common to all project homes. It will be recalled that in Tamawood v Henley Arch, the Court observed (at [38]) that the application of the law of copyright to project home plans gave rise to special difficulty. All modern homes had certain features in common and, in the case of project homes competing for the "same number of dollars", there were pressures towards sameness. See also Eagle Homes v Austec Homes at [80] per Lindgren J . In Henley Arch Pty Ltd v Clarendon Homes (Aust) Pty Ltd (1998) 41 IPR 443 , Merkel J (at 460) went so far as to suggest that the degree of the protection under copyright of an architectural plan might be limited by reason of the proportion of features common to all plans. 112 It argued that it was relevant, when determining whether there was sufficient objective similarity to justify a finding of reproduction of a substantial part, to consider whether there had been actual and deliberate copying. In Eagle Homes v Austec Homes, Lindgren J pointed out the importance in that case of the primary judge's finding that there had been subjective copying. His Honour said (at [92]): "To insist that a copyright owner can satisfy the sufficient objective similarity of reproduction only by establishing such a close similarity is a hurdle too high to be placed before a copyright owner who is found to have proved subjective copying. The way of the copier, including the copier of a plan of a project home, should not be made easy." 113 Boutique submitted that it was in the light of findings of deliberate copying that both Eagle Homes v Austec Homes and Barrett Property Group v Metricon Homes (affirmed on appeal: Metricon Homes Pty Ltd v Barrett Property Group Pty Ltd [2008] FCAFC 46) should be viewed. In a case involving at its highest an allegation of subconscious reproduction, a close objective similarity in the detail of the two plans should be required before there could be any finding that a substantial part had been taken. 116 Inform contended that the authorities were careful to point out that the conceptual limits of project home copyright should not be overstated: Eagle Homes v Austec Homes ; LED v Eagle Homes and Clarendon Homes v Henley Arch, Tamawood v Henley Arch and Barrett Property Group v Metricon Homes . It noted that copyright protection had been given to the combination and arrangement of rooms and spaces in a design and the "flow" or movement and other aspects arising from that arrangement and associated design choices (eg Eagle Homes v Austec Homes).


case_text: In the absence of any direct evidence of copying, or access by the respondent to the applicant's work, the causal link can be inferred. The greater the degree of objective similarity, the more likely it will be that that inference will be drawn: SW Hart & Co v Edwards Hot Water Systems (at 472); Clarendon Homes v Henley Arch and Barrett Property Group Pty Ltd v Carlisle Homes Pty Ltd [2008] FCA 375 . 91 Inform said that the placement of the central stair with the wet areas around it, and the interrelationship of these design features to the remaining spaces of the house, were at least as substantial to the overall design as was the al fresco quadrant in Barrett Property v Carlisle Homes . In that case, the Court held that an al fresco quadrant, which comprised a combination of rumpus, family, kitchen and meals areas around an open courtyard enclosed on three sides, all under a single roof, was a substantial part of the design. 92 Inform said that Courts had been ready, sometimes implicitly, to find particular design features, and the layout and interrelationship of rooms in plans, as constituting a substantial part. Moreover, they had regularly stopped short of finding it necessary to list or define the elements as constituting a substantial part, which was consistent with the role that subjective impression had to play in the process.


case_text: The operative similarity need not be, and indeed rarely will be, to the entire work. However, correspondence to a substantial part of the applicant's design will be sufficient to ground infringement: Barrett Property Group Pty Ltd v Metricon Homes Pty Ltd (2007) 74 IPR 52 . It is not necessary to show that the alleged copy is a perfect reproduction of a substantial part of the applicant's work: British Northrop Ltd v Texteam Blackburn Ltd [1974] RPC 57 at 72 per Megarry J.


case_title: British Northrop Ltd v Texteam Blackburn Ltd [1974] RPC 57


case_text: Determining whether "a substantial part of the work" has been reproduced is a question of fact and degree. As indicated, greater weight must be given to the quality of what is reproduced than to its quantity: SW Hart & Co v Edwards Hot Water Systems. The protected element may arise out of a combination of elements, any one of which considered individually might not qualify as sufficiently original to attract copyright. An allegation of substantial reproduction will be made out if what has been taken is an essential or material part of the applicant's work: Autodesk Inc v Dyason [No 2] [1993] HCA 6 ; (1993) 176 CLR 300 per Mason CJ at 305; Tamawood v Henley Arch at [52]; and Dixon Investments Pty Ltd v Hall (1990) 18 IPR 490 at 494 per Lockhart, Spender and Ryan JJ .


case_title: Dixon Investments Pty Ltd v Hall (1990) 18 IPR 490


case_text: A "substantial part" can be constituted by the arrangement of rooms in a design, as well as by matters such as traffic flow throughout a house: Eagle Homes v Austec Homes . Although questions of "substantiality" and "reproduction" are ultimately for the Court to determine, it is permissible and of assistance to have regard to expert opinion to resolve those questions: Ancher, Mortlock, Murray & Woolley Pty Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278 at 286 and Barrett Property Group v Metricon Homes at [28]. 121 Boutique referred to Ancher, Mortlock, Murray & Woolley Pty Ltd v Hooker Homes Pty Ltd where Street J said (at 284): "An architect may legitimately inspect an original plan or house and then, having absorbed the architectural concept and appreciated the architectural style represented therein, return to his own drawing board and apply that concept and style to an original plan prepared by him and in due course to a house built to such plan. There is a dividing line separating such a legitimate process from an inspection followed by a later copying of a substantial part of the physical object inspection, even though the copying be from memory; the latter exercise does infringe. In many instances it will be difficult to state categorically whether the dividing line has been crossed. Cases will not always be black or white where the alleged coping is from memory. The borderline area is clouded by a band of grey within which opinions and conclusions may differ. Within this grey band conflicting answers could without error be given to the questions is that plan or house only a copy of the concept or style of the original and hence legitimate?, or is it a copy of the author's manifestation of that concept or style and hence an infringement?" 122 Despite the significant body of evidence led in this case, and the copious citation of authority, the real dispute between the parties turns largely upon a simple question of fact. Has Inform established by reliance upon inference that those involved in the design and construction of the Villa View copied central elements of the Urban or Seasons? 123 Inform's case turns primarily upon subconscious rather than deliberate copying. It does not invite me to find that any of Mr Di Natale, Mr de Weerd, Mr O'Dwyer or Mr Lazarovski has given untruthful evidence as such. Rather, it submits that it is simply inconceivable that two such similar designs as the Seasons and Villa View could have been independently arrived at. It says that someone associated with the design of the Villa View must have seen and digested the essential features of either or both of the Urban or Seasons, each of which achieved considerable publicity at about the time the Villa View was being planned. The seeds of the Inform designs must have been planted in the minds of those who conceived the Villa View and influenced the design of that home. Inform says that any other conclusion would strain the bounds of credulity. 124 Weighed against that view is the emphatic evidence given by Mr Di Natale, Mr de Weerd, and Mr Lazarovski in particular, denying any knowledge of the Urban or Seasons at the time in question. Their evidence is supported by a detailed documentary trail, which shows the evolution of the different Boutique homes from the one at Mawson Lakes to the various Villa Grand versions, including the Contemporary Villa Grand, and ultimately the Villa View. That evidence, which included transparencies of the plans of each of these homes, was said to controvert Mr Wine's opinion to the extent that he did not resile from it in any event under cross-examination. 125 It was Oscar Wilde who said in The Importance of Being Earnest : "To lose one parent ... may be regarded as a misfortune; to lose both looks like carelessness."


case_title: Ladbroke (Football) Ltd v William Hill (Football)Ltd [1964] 1 All ER 465

case_text: It noted that in Ladbroke (Football) Ltd v William Hill (Football) [1964] 1 WLR 273 , Lord Pearce said (at 293): "Whether a part is substantial must be decided by its quality rather than its quantity. The reproduction of a part which by itself has no originality will not normally be a substantial part of the copyright and therefore will not be protected. For that which would not attract copyright except by reason of its collocation will, when robbed of that collocation, not be a substantial part of the copyright and therefore the courts will not hold its reproduction to be an infringement. It is this, I think, which is meant by one or two judicial observations that 'there is no copyright' in some unoriginal part of a whole that is copyright'."


case_text: Boutique submitted that many of these features were either mere ideas or common to all project homes. It will be recalled that in Tamawood v Henley Arch, the Court observed (at [38]) that the application of the law of copyright to project home plans gave rise to special difficulty. All modern homes had certain features in common and, in the case of project homes competing for the "same number of dollars", there were pressures towards sameness. See also Eagle Homes v Austec Homes at [80] per Lindgren J . In Henley Arch Pty Ltd v Clarendon Homes (Aust) Pty Ltd (1998) 41 IPR 443 , Merkel J (at 460) went so far as to suggest that the degree of the protection under copyright of an architectural plan might be limited by reason of the proportion of features common to all plans.


case_text: Boutique submitted that it was in the light of findings of deliberate copying that both Eagle Homes v Austec Homes and Barrett Property Group v Metricon Homes (affirmed on appeal: Metricon Homes Pty Ltd v Barrett Property Group Pty Ltd [2008] FCAFC 46) should be viewed. In a case involving at its highest an allegation of subconscious reproduction, a close objective similarity in the detail of the two plans should be required before there could be any finding that a substantial part had been taken.


case_text: As previously discussed, copyright protects the form in which ideas are expressed but not the ideas themselves: Autodesk Inc v Dyason [1992] HCA 2 ; (1992) 173 CLR 330 at 344 per Dawson J. It does not prevent the development and expansion of ideas or the furtherance of architectural concepts: Clarendon Homes v Henley Arch at [16]. To constitute an infringement, the act must constitute an unauthorised use of the form of the work and not merely its idea or theme or method. 115 Inform's submissions on this point were not detailed. It noted that in cases involving architectural designs, broad design concepts were not subject to protection but their form, as found in a given design, was if they were neither mere copies nor entirely generic concepts. Inform conceded that with project homes, the idea/expression dichotomy could be harder to distinguish because of the degree to which function dictated form and the fact that such homes were often composed of stock elements common to the genre. However, Inform submitted that such concerns had limited application in this case because the Urban and Seasons designs were not "run-of-the-mill variants" of standard project home lines.


case_outcome: discussed

case_text: the Deed of Grant was made, the Kamu made representations to the NLC. They did so because the NLC is required by s 23 and 24 of the ALRA to determine who are the 'traditional Aboriginal owners' of land that has been the subject of a grant under the ALRA: see Tapgnuk v Northern Land Council (1996) 5 NTLR 109 ( Tapgnuk ). They said their traditional ownership in the eastern part of the claim area had not been recognised. They challenged the Commissioner's findings that the Malak Malak were the traditional owners of the land granted, and the findings that as a group of people the Kamu no longer existed. The NLC's function under ss 23 and 24 of the ALRA is a significant one. It accepts that, in performing its function, it must comply with the rules of procedural fairness. It endeavoured to do so by adopting an adjudicative process (described below) including hearing evidence and submissions from the Malak Malak and from the Kamu. The dispute between the Malak Malak and the Kamu could not be resolved informally. The NLC therefore established the Committee to make findings and recommendations in relation to the traditional ownership of the disputed part of the land contained within the Land Trust. In Tapgnuk, Angel J expressly declined to declare that the NLC was bound by the findings in the Toohey Report in exercising its function of determining who are the traditional Aboriginal owners of the land in the name of the Land Trust. The application by or on behalf of the Malak Malak to have the NLC reject the claimed interest of the Kamu in part of that land was unsuccessful. The NLC had to make its own decisions as to who the traditional owners were at a relevant time. His Honour at 114-115, in reaching that conclusion, considered the obligation on the NLC under s 23(3) to have regard to and to consult with 'the traditional Aboriginal owners (if any) of the land' as indicating a legislative intention that the NLC should form its own view on that matter. Otherwise (apart from Schedule 1 land) the words 'if any' would be otiose. Section 24 empowering the NLC to compile a register of the traditional Aboriginal owners, in Angel J's view at 115-116, fortified that conclusion by the use of the words 'in the opinion of the Council'. At 117, Angel J said: 'The initial starting point, for both the Commissioner and the Land Council, must be the definition of "traditional Aboriginal owner" (and all that it incorporates) within s 3(1) of the Act. As a consequence the same considerations that a Land Commissioner applies must be applied by the Council. Providing the Council forms its opinion in accordance with law, it is entitled to form a contrary view to the Land Commissioner. Such a contrary view could only be formed in limited circumstances; if traditional Aboriginal owners change through succession over time; if the Land Commissioner failed to identify all the traditional Aboriginal owners; or, if the Land Commissioner's inquiry was seriously flawed in some material respect.' I agree with the submission that his Honour's use of the word 'could' in that passage should be understood as meaning only that, in a practical sense, a different factual decision on the composition of the traditional Aboriginal owners will only be made following a report of the Aboriginal Land Commissioner in the rare type of circumstances to which his Honour referred. As its title indicates, the claim area concerned part of the area through which the Daly River runs in a roughly north-westerly direction towards the coast. The Toohey Report includes two maps, one of which identifies the many sites of significance within the area of the land grant. The eastern portion of the claim area includes two sites (numbered 146 and 47) in respect of which the key person is said to be Kitty Pan Quee. Mrs Pan Quee was recognised in the Toohey Report as a surviving Kamu person. The map comprising part of the Committee Report reveals that the contentious sites Jirigij (Jugirij), Jebenyi, Kabamal (Kabumal), Ngulukmoenet, Coppermine Graves, Ngalyuwuy, and the Mt Hayward area in the vicinity of Wani-Alawun are in the central eastern or upper eastern part of the land trust area, as is the site Durk Koen. The Toohey Report at [16] recognised that the Malak Malak not only identify themselves and distinguish themselves from other tribunal or linguistic groups, but do so to emphasise that they are the traditional Aboriginal owners of the land because they are Malak Malak. It also recognised at [20] that the position of the Kamu is 'crucial' to the claim, as there was evidence that Kamu country used to run from upstream of the Daly River roughly in the eastern section of the claim area. The thesis with which Justice Toohey was presented in evidence was that by 1932 the Kamu dialect was practically extinct, that by about that time the Malak Malak (a group comprising the integration of the Malak Malak and the Madngele people) had taken over responsibility for the former Kamu area, and that Mrs Pan Quee had said that she wanted the Malak Malak to look after the former Kamu area but preserving only hunting and foraging rights for herself. The Committee identified its task as applying the statutory definition of 'traditional Aboriginal owners' to the material presented to it, including the evidence of the Aboriginal people themselves, to decide whether the Kamu or the Malak Malak are the traditional owners of the disputed country. In doing so, it said it followed the guidance of Angel J in Tapgnuk at 117. It said it would give 'proper weight and respect to the findings' in the Toohey Report. The Committee noted at [32] that some 20 years had elapsed since the Toohey Report, and that over that time the circumstances of the Aboriginal people concerned have changed significantly. It noted at [32] that the core Malak Malak people now are Albert Myoung and his five sisters, all of whom reside on the Land trust area and all of whom speak Malak Malak and know a lot about the area. The Committee noted at [33] that the Kamu, the core element being Mrs Pan Quee's children and grandchildren, have since the Toohey Report sought to be recognised as the traditional Aboriginal owners of the eastern part of the Land Trust land. They acknowledge that Mrs Pan Quee told Justice Toohey that she was giving the Kamu land to the Malak Malak, but they dispute that they thereby (or otherwise) ceased to be its traditional Aboriginal owners. They do not live on that land, but since the Toohey Report have visited and camped there including in rudimentary buildings for lengthy periods. The Kamu language is no longer spoken, but the Kamu (in particular Marjorie Foster one of the five sisters and her children) profess a strong sense of identity as Kamu and as Aboriginal people associated with Kamu country in the Daly River region and are likely to pass it on in turn to their children. Once it was accepted that the Committee was obliged to address the competing claims of the Malak Malak and the Kamu under the ALRA and was not bound to adopt the conclusions in the Toohey Report (in accordance with the decision of Angel J in Tapgnuk ), the Committee had to determine, among other things, whether the Kamu were a 'local descent group' who had common spiritual affiliations to a site or sites in the Land Trust area. Its abbreviated expression simply reflects its findings on that matter a matter required to be addressed by the ALRA and its findings that, in respect of some sites, within the Land Trust area, the Malak Malak also had common spiritual affiliations to certain of the same sites. I do not consider that its approach to the question posited by the definition of 'traditional Aboriginal owners' in the ALRA was infected by some misplaced pre-conception about how that task should be carried out. The Committee has identified the correct question. It has had regard to the evidence. And it has reached a conclusion on the issue it was required to address, and explained how it came to that conclusion. Although the Malak Malak did not contend that the Committee could not use its general knowledge and experience, and did not contend (subject to the first mentioned contention above, which I have rejected) that as a matter of fact there could never be shared country between Aboriginal groups at the margins of neighbouring country, they nevertheless criticised the evidence identified in the Kamu submissions that in fact there was certain shared country between the Malak Malak and the Kamu. They did so because the evidence referred to was evidence also before Justice Toohey, but had not led to a conclusion in the Toohey Report that the Kamu continued to exist as traditional Aboriginal owners of part of the Land Trust area. I do not consider that criticism demonstrates any reviewable error on the part of the Committee. There was clearly such evidence before Justice Toohey. I do not need to refer to it. But the Committee was required to come to its own conclusions, and it did so having regard not only to the evidence before Justice Toohey (and the conclusions in the Toohey Report) but also to the additional evidence which it received and to which it referred. That further evidence went to the existence of the Kamu as a local descent group, and to that group's common spiritual affiliations with certain sites within the Land Trust area. I do not accept that the Committee's report indicates that it failed properly to apply the requirements of the ALRA and somehow strayed into 'some kind of middle ground' to accommodate the interests of each party. Nor do I accept that the passages complained of reflect that the Committee assumed that, in the case of the competing claimants which it was considering, the solution should be some form of sharing. For the reasons I have given, upon my reading of the Committee's report, it simply recognised the questions it had to address and, having addressed them, it concluded in fact that, in respect of certain sites, the responsibility and common spiritual associations of the Malak Malak and of the Kamu overlapped.


case_outcome: referred to

case_text: NLC took the view that it should not play an active role in these proceedings except in one respect, because there is a proponent and an opponent to the claims made. That was a proper approach: R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13 at 33-35. It made submissions concerning its powers and the proper construction of the ALRA. It took that position because there was no intervention by the Attorney-General or other public officer to inform the Court on those issues, beyond the particular interests of the parties. In my view, the NLC acted consistently with the decision in Hardiman in adopting that role: see e.g. TXU Electricity Ltd v Office of the Regulator-General [2001] VSC 4 ; (2001) 3 VR 93 at [44] .


case_title: TXU Electricity Ltd v Office of the Regulator-General [2001] VSC 4 ; (2001) 3 VR 93


case_text: ALRA provides for the granting of traditional Aboriginal land in the Northern Territory for the benefit of Aboriginals and for other purposes. Its scheme has been explained by the High Court in Risk v Northern Territory [2002] HCA 23 ; (2002) 210 CLR 392 at 398-403 and 409-412. See also Northern Land Council v Olney (1992) 34 FCR 470 at 475-478.


case_text: ALRA provides for the granting of traditional Aboriginal land in the Northern Territory for the benefit of Aboriginals and for other purposes. Its scheme has been explained by the High Court in Risk v Northern Territory [2002] HCA 23 ; (2002) 210 CLR 392 at 398-403 and 409-412. See also Northern Land Council v Olney (1992) 34 FCR 470 at 475-478. The parties were agreed that the fact that, because the definitions of both 'traditional Aboriginal owners' and of 'Aboriginal tradition' are expressed in the present tense, the identity of traditional owners may evolve somewhat over time, and that the strength of spiritual affiliations to sites and spiritual responsibility for sites may vary in strength from time to time: see e.g. per Brennan J in The Queen v Toohey; Ex parte Meneling Station Proprietary Limited [1982] HCA 69 ; (1983) 158 CLR 327 ( Meneling Station ) at 359; and Northern Land Council v Olney (1992) 34 FCR 470 at 485. Senior counsel for the Malak Malak pointed out, without demur, that the functions of a Land Council are the same whether the land the subject of a land grant under the ALRA followed a recommendation of the Land Rights Commissioner or was Schedule 1 land. The focus on the present traditional Aboriginal owners is also recognised in ss 19(5), 23(1)(e)(i), 23(3), 42(2)(a), 42(3) and 46(4)(a) of the ALRA. A Land Council is empowered by s 24(a) to compile and maintain a register of the names of persons who, in the opinion of the Land Council, are the traditional Aboriginal owners of the Aboriginal land in the area of the Land Council. The distribution between those two categories was recognised by Brennan J in Meneling Station at 358 and 360; by Wilson and Brennan JJ in Re Toohey; Ex parte Stanton (1982) 44 ALR 94 ( Stanton ) at 100 and 104 respectively; and by the Full Court in Northern Land Council v Olney at 479. It emerges clearly enough from provisions of the ALRA: see e.g. ss 23(1)(b), (c) and (e), and s 71. As the contentions of the Malak Malak point out, the Committee report does not explicitly refer to that broader category. The issue has not been the subject of direct judicial determination, although Justice Toohey as the Aboriginal Land Commissioner in his Report in the Finniss River Land Claim in 1981 appears to have accepted at [100], [218], [220], [225] and [234] that there may be more than one group of traditional Aboriginal owners of a particular site or area of country. I do not consider the observations of Brennan J in Meneling Station at 356-360 support the contention of the Malak Malak. That case relevantly concerned s 50(3) of the ALRA. If anything, in my view, his Honour's remarks at 358 suggest that there may be more than one group of traditional Aboriginal owners. His Honour said of the Aboriginal Land Commissioner's function under s 50(1) that it requires him: '... to evaluate the spiritual affiliations and spiritual responsibility of any local descent group of Aboriginals who may claim to be traditional owners of the land in question or who may appear to have a traditional claim to that land.' (my emphasis) Moreover, Meneling Station concerned the Finniss River Land Claim Report, so that such an approach by the Aboriginal Land Commissioner may have attracted some judicial comment if it were not consistent with the ALRA. It also appears that the Full Court in Northern Land Council v Olney at 490 contemplated the possibility of there being more than one local descent group each having common spiritual affiliations to a site. That construction is consistent with a number of reports of Aboriginal Land Commissioners under the ALRA. They are noted in Neate , Aboriginal Land Rights Law in the Northern Territory, Alternative Publishing Co-operative Ltd, Sydney, 1989 at Ch 3 fn 298. Since 1989, a number of similar reports have been made, including Justice Gray in the Jawoyn (Gimbat Area) Land Claim Report, 1995 (especially at [4.28]) and Justice Olney in the Wakaya/Alawarre Land Claim Report, 1990 (especially at [5.8]). I note, as senior counsel for the Malak Malak pointed out, both those reports concerned claimant groups who were not competing with each other. Moreover, that construction in my view is consistent with giving the ALRA a broad construction so as to give effect to the beneficial purpose for which it was intended: see e.g. R v Kearney; Ex parte Jurlama [1984] HCA 14 ; (1984) 158 CLR 426 at 433; and Northern Land Council v Olney at 479. It is unlikely that the ALRA was intended either to exclude altogether from the traditional ownership both local descent groups if (for example) there were found to be two local descent groups each with the specified characteristics in relation to a particular site, or alternatively to force a decision between competing local descent groups on some unspecified basis when reach was found to have the specified characteristics in relation to a particular site. Once it is accepted that, as a matter of law, there may be two groups of persons who are each traditional Aboriginal owners of particular sites or country, the fact that there are competing groups making mutually exclusive claims is simply a matter the decision-maker must take into account. It doe not follow that the decision-maker, having taken all relevant material into account, will err in a reviewable way if both groups are found to be traditional Aboriginal owners. As the Full Court in Northern Land Council v Olney said at 487: '... the question whether or not a group of claimants can establish its status as traditional Aboriginal owners of the land is ultimately a question of applying the statute to the particular facts as found.' The Malak Malak point out that the statutory definition of 'traditional Aboriginal owners' refers to 'common' spiritual affiliations to a site on the relevant country. That requirement of commonality is one which the members of a local descent group must enjoy as among themselves. It is not a requirement that, in the case of there being more than one local descent group, all the members of each local descent group must collectively enjoy commonality of spiritual affiliations. It is plain that subpar (a) of the definition prescribes a particular characteristic for a local descent group. As I have indicated, the definition of 'traditional Aboriginal owners' is satisfied only if the group of Aboriginals who comprise a local descent group have 'common spiritual affiliations' to a site on the land. That requirement was explained by the Full Court in Northern Land Council v Olney at 485-488. It is clearly a requirement, or characteristic, which a local descent group must satisfy before it comes within the definition. Where a local descent group has that characteristic in relation to a site on the land (and also satisfies the other elements of the definition) it will qualify as traditional Aboriginal owners in relation to that land. If there are two local descent groups who so qualify, by the application of the statute, they each enjoy that status in relation to that land. There is no requirement in the definition that the members of each such group must then be found collectively to have 'common spiritual affiliations' with that land. It therefore is not to the point, in my view, at least in relation to this contention, that there are examples where the Malak Malak and the Kamu gave different evidence as to the nature of their respective common spiritual affiliations with particular sites such as Jebenyi or Ngulukmoenet/Kabamal or the area of Mt Hayward called Wani Alawun by the Malak Malak and Ngalyuwuy by the Kamu. Those observations indicate why I also do not accept the further contention of the Malak Malak that the Committee erred in proceeding on the basis that there can be more than one 'land-owning group' in relation to a particular area of land in circumstances where the members of both groups do not hold spiritual affiliations in common with each other. It is also convenient at this point to address a subsidiary contention of the Malak Malak that the Committee erred by not addressing the existence or otherwise of the common spiritual affiliations of the Kamu local descent group in the manner required. The pithy contention was that the Committee 'made findings about the spiritual affiliations of each group rather than about those of their members'. The approach to that aspect of fact finding was described by the Full Court in Northern Land Council v Olney at 487-488 as follows: 'The task of the Commissioner is first to ascertain the relevant group to be investigated and then to determine whether the members of that group have the requisite common spiritual affiliation such that the group is as a result under a primary spiritual responsibility for the site and the land. A group necessarily comprises persons. Clearly it is not necessary to call each member of the group to give evidence to establish that they have the appropriate spiritual affiliation. It will be sufficient if the evidence establishes, on the balance of probabilities, that the Aboriginals who comprise the group have that affiliation.' In my view, the Committee is not shown to have departed from the proper decision-making process or to have misunderstood its task. In accordance with what the Full Court then went on to indicate at 488, the Committee recognised that the common spiritual affiliations have to be possessed by the individuals who comprise the group. I do not read [100] of the Committee Report as indicating any departure from that process. Its decision was based upon the evidence of individual members of the Kamu, given at a number of sites. It clearly recognised that the Kamu comprise a number of individuals who are descendants of Mrs Pan Quee. In my view, its focus when making its findings on this aspect was properly upon the Aboriginals who comprise the Kamu local descent group which it found to exist. The next two submissions of the Malak Malak can conveniently be dealt with together. They contended that the Committee erred in holding that both the Malak Malak and the Kamu hold 'joint primary spiritual responsibility' for the shared sites. And they contended that it erred in finding that the shared sites identify a 'shared area' or zone between the country of the Kamu and the country of the Malak Malak which is an area 'to which both groups have shared responsibilities and interests'.


case_text: parties were agreed that the fact that, because the definitions of both 'traditional Aboriginal owners' and of 'Aboriginal tradition' are expressed in the present tense, the identity of traditional owners may evolve somewhat over time, and that the strength of spiritual affiliations to sites and spiritual responsibility for sites may vary in strength from time to time: see e.g. per Brennan J in The Queen v Toohey; Ex parte Meneling Station Proprietary Limited [1982] HCA 69 ; (1983) 158 CLR 327 ( Meneling Station ) at 359; and Northern Land Council v Olney (1992) 34 FCR 470 at 485. Senior counsel for the Malak Malak pointed out, without demur, that the functions of a Land Council are the same whether the land the subject of a land grant under the ALRA followed a recommendation of the Land Rights Commissioner or was Schedule 1 land. The focus on the present traditional Aboriginal owners is also recognised in ss 19(5), 23(1)(e)(i), 23(3), 42(2)(a), 42(3) and 46(4)(a) of the ALRA. A Land Council is empowered by s 24(a) to compile and maintain a register of the names of persons who, in the opinion of the Land Council, are the traditional Aboriginal owners of the Aboriginal land in the area of the Land Council. The distribution between those two categories was recognised by Brennan J in Meneling Station at 358 and 360; by Wilson and Brennan JJ in Re Toohey; Ex parte Stanton (1982) 44 ALR 94 ( Stanton ) at 100 and 104 respectively; and by the Full Court in Northern Land Council v Olney at 479. It emerges clearly enough from provisions of the ALRA: see e.g. ss 23(1)(b), (c) and (e), and s 71. As the contentions of the Malak Malak point out, the Committee report does not explicitly refer to that broader category. The issue has not been the subject of direct judicial determination, although Justice Toohey as the Aboriginal Land Commissioner in his Report in the Finniss River Land Claim in 1981 appears to have accepted at [100], [218], [220], [225] and [234] that there may be more than one group of traditional Aboriginal owners of a particular site or area of country. I do not consider the observations of Brennan J in Meneling Station at 356-360 support the contention of the Malak Malak. That case relevantly concerned s 50(3) of the ALRA. If anything, in my view, his Honour's remarks at 358 suggest that there may be more than one group of traditional Aboriginal owners. His Honour said of the Aboriginal Land Commissioner's function under s 50(1) that it requires him: '... to evaluate the spiritual affiliations and spiritual responsibility of any local descent group of Aboriginals who may claim to be traditional owners of the land in question or who may appear to have a traditional claim to that land.' (my emphasis) Moreover, Meneling Station concerned the Finniss River Land Claim Report, so that such an approach by the Aboriginal Land Commissioner may have attracted some judicial comment if it were not consistent with the ALRA. It also appears that the Full Court in Northern Land Council v Olney at 490 contemplated the possibility of there being more than one local descent group each having common spiritual affiliations to a site.


case_title: Foster v Lindsay (Unreported, Supreme Court of the Northern Territory, 16 January 1998)

case_text: they did not express their concerns formally, so as to ensure the land grant took place, as it ultimately did on 21 February 1990. The members of the Land Trust when it was formed included some members of the Kamu. They had discussions with the Malak Malak before then, during which apparently some agreement was reached. The agreement, and the circumstances in which it was made, were not found to create any estoppel: Foster v Lindsay (Unreported, Supreme Court of the Northern Territory, 16 January 1998 (Martin CJ)), and the Committee concluded for reasons it expressed (which were not challenged) that the agreement was not enforceable.


case_text: contention was not that the Committee could not use its knowledge and expertise to determine the issues before it. They may do so: Repatriation Commission v Strickland (1990) 22 ALD 10; Szelagowicz v Stocker (1994) 54 IR 302 at 306. The contention was (as explained by the Malak Malak reply submissions) that the Committee's focus on those matters was irrelevant to the task at hand.


case_title: Szelagowicz v Stocker (1994) 54 IR 302


case_text: distribution between those two categories was recognised by Brennan J in Meneling Station at 358 and 360; by Wilson and Brennan JJ in Re Toohey; Ex parte Stanton (1982) 44 ALR 94 ( Stanton ) at 100 and 104 respectively; and by the Full Court in Northern Land Council v Olney at 479. It emerges clearly enough from provisions of the ALRA: see e.g. ss 23(1)(b), (c) and (e), and s 71. As the contentions of the Malak Malak point out, the Committee report does not explicitly refer to that broader category. On the other hand, Wilson J (with whom Gibbs CJ and Mason J agreed) in Stanton at 98-99, when addressing the then appellants' complaint that their respective claims were not separately addressed on their merits, said: 'It is implicit in Mr Castan's submission that the Act contemplates that there may be more than one local descent group of Aboriginals who satisfy the description of traditional Aboriginal owners in respect of the same area of land. Such a construction of the Act would, in my opinion, be somewhat surprising, having regard to the definition of such traditional ownership, which requires the group, inter alia , to have "common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land". It is difficult to contemplate two opposing groups, each of whom are placed at the same time under a primary spiritual responsibility for the same site and the same land. Certainly the claimants in this case each claimed traditional ownership to the exclusion of the other. In fact, the claims were not only competing, but mutually exclusive ...' The primary submission was rejected, so that those observations are not binding. It does not appear that the particular issue was argued in that case. In my judgment, there is nothing in the ALRA which indicates that, in appropriate factual circumstances, there may not be more than one local descent group which can comprise the traditional Aboriginal owners of certain land. Indeed, if it be accepted that there is not, or not always, a sharp line defining the boundaries of country between neighbouring Aboriginal groups, it would seem to follow that there is in the 'overlap' country the prospect of each of those groups having common spiritual affiliations with that country or sites within it and having a primary spiritual responsibility for those sites. I do not think that Stanton , upon which the Malak Malak rely, necessarily supports the contention. I have referred above to the relevant passage from the judgment of Wilson J (with whom Gibbs CJ and Mason J agreed). Reliance was also placed on the observations of Brennan J at 104 where his Honour said: 'Thirdly, it is submitted that the Commissioner ought to have ascertained whether the Maranunggu people on the one hand and the Kungarakany and Warai peoples on the other were all traditional Aboriginal owners of area 1 and part of area 2. Clearly enough, the facts upon which the two groups respectively relied were inconsistent with both groups being the traditional Aboriginal owners. The Commissioner noted that each of the two groups was asserting, to the exclusion of the other, traditional ownership of the land ... He found in favour of the Maranunggu claim. The Commissioner explicitly rejected the Kungarakany claim in respect of area 1 (para 192) and area 2 (para 207). There is no substance in this ground.' It is apparent his Honour concluded that the relevant finding of the Aboriginal Land Commissioner that one of the competing groups was the traditional Aboriginal owners of the particular country in dispute was not infected with reviewable error. I do not think it excludes the possibility of there being two groups of traditional Aboriginal owners, or that in all circumstances where there are competing groups making exclusive claims there cannot as a matter of law be found to be two groups of traditional Aboriginal owners. The so called exclusive claims of the Malak Malak and the Kamu in relation to particular sites in the Land Trust area must be seen in context. Although they were competing claims, the findings in the Toohey Report indicate that the basis of the Malak Malak claim to ownership of certain sites was passed on by Mrs Pan Quee on behalf of the Kamu. This is not a case where it had been found that the Kamu at no point in time had ownership of any of the disputed areas. The NLC was required to fulfil its role under the ALRA, and established the Committee for the better performance of that function. The Committee concluded differently from the Toohey Report, that the Kamu continued to exist as a local descent group. It was then required to determine whether the Malak Malak or the Kamu or both satisfied the characteristics in the definition of 'traditional Aboriginal owners'. There is nothing which, as a matter of law, obliged the Committee then to ignore its findings (which were positive in respect of the shared sites in the case of both the Malak Malak and the Kamu), or to find one or other group had a greater 'primary spiritual responsibility' than the other, or in some other way to conclude that despite both groups satisfying the definition in respect of particular sites one or other or neither of them should be so recognised. The consequences of their respective recognition as traditional Aboriginal owners in respect of particular sites is then simply governed by other provisions of the ALRA. I do not accept that, by recognising two groups of traditional Aboriginal owners of particular sites, the determination of rights or their implementation would be frustrated. The NLC has certain consultation obligations with traditional Aboriginal owners, and with other Aboriginal persons in certain circumstances. The fact that the consent of the traditional Aboriginal owners is also required in respect of some proposed decisions (e.g. under ss 19(5)(a) and 46 (6)) will not be impeded, although practically it may be more difficult. In respect of any groups of traditional Aboriginal owners, s 77A provides how the consent may be taken to have been given in the case of intra-group disputes. But if as a fact (as here found) there are in respect of a particular site two groups of traditional Aboriginal owners, then the consent of each group will need to be obtained where such consent is required by the Act. That is, in my view, consistent with the beneficial purposes of the Act as it gives each of the groups of traditional Aboriginal owners the 'ownership' or control of decision-making through the processes the ALRA contemplates.


case_text: definition of 'traditional Aboriginal owners' accommodates, rather than excludes, such circumstances. If it were intended that, in respect of a particular site, there would be only one group of traditional Aboriginal owners, it would have been expressed to refer to 'the' local descent group rather than 'a' local descent group. In my view, the use of the indefinite article is intended to allow for more than one such group. The use of the definite article in subpar(a) of the definition before the word 'group' is then simply a reference back to the particular local descent group or groups found to exist and require that that particular group or groups have the characteristics specified. In addition, I consider that the use of the indefinite article before the words 'primary spiritual responsibility' also recognise that there may be more than one local descent group, otherwise that part of the definition would also refer to 'the' primary responsibility so as to exclude other local descent groups in respect of a particular site. See e.g. per Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273 at 289. To the extent that it is necessary, reliance for such a construction may be derived from s 23(b) of the Acts Interpretation Act 1901 (Cth) which provides for the singular to include the plural. Neither text of the definition of 'traditional Aboriginal owners', nor its context in the ALRA, indicates that a contrary intention to that construction emerges.


case_text: construction is consistent with a number of reports of Aboriginal Land Commissioners under the ALRA. They are noted in Neate , Aboriginal Land Rights Law in the Northern Territory, Alternative Publishing Co-operative Ltd, Sydney, 1989 at Ch 3 fn 298. Since 1989, a number of similar reports have been made, including Justice Gray in the Jawoyn (Gimbat Area) Land Claim Report, 1995 (especially at [4.28]) and Justice Olney in the Wakaya/Alawarre Land Claim Report, 1990 (especially at [5.8]). I note, as senior counsel for the Malak Malak pointed out, both those reports concerned claimant groups who were not competing with each other. Moreover, that construction in my view is consistent with giving the ALRA a broad construction so as to give effect to the beneficial purpose for which it was intended: see e.g. R v Kearney; Ex parte Jurlama [1984] HCA 14 ; (1984) 158 CLR 426 at 433; and Northern Land Council v Olney at 479. It is unlikely that the ALRA was intended either to exclude altogether from the traditional ownership both local descent groups if (for example) there were found to be two local descent groups each with the specified characteristics in relation to a particular site, or alternatively to force a decision between competing local descent groups on some unspecified basis when reach was found to have the specified characteristics in relation to a particular site.


case_text: balance of the Malak Malak contentions involve a more immediate attack upon factual findings of the Committee adopted by the NLC, including in some respects adopting the 'no evidence' ground of review available under s 5(1)(h) of the ADJR Act. In approaching these grounds, I have borne in mind the explanation of Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 358-359 as to the interaction of subs 5(1)(e), (f) and (h) of the ADJR Act. I have also borne in mind that the High Court said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 per Mason J at 39-41 about the scope of the grounds of review under subs 5(1)(e) and (2)(a) and (b) of the ADJR Act.


case_title: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24


case_text: respect of the site Jigirij, I am not persuaded that the Committee's findings involve reviewable error under the ADJR Act. I think there was evidence which could rationally support its conclusions. It had the benefit of seeing and hearing all the evidence, in particular the evidence of Mr Storer taken at the site. It had regard to the evidence before Justice Toohey and the findings in the Toohey Report. It is not shown to have misapprehended any evidence, or to have attributed to it a significance which it was not rationally capable of bearing. It is not my function to reconsider all the relevant evidence on a topic to see if I would have come to a different view of the facts: see per Gleeson CJ in Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222 at [26] . It is my function to determine, in respect of contentions such as those referred to above, whether the Committee erred in a way which s 5(1) of the ADJR Act identifies as reviewable error. In my judgment, it did not. The further contentions attacked the factual findings of the Committee, adopted by the NLC, that the Kamu have common spiritual affiliations to the sites Jebenyi, Ngulukmoenet and Kabamal, the Mt Hayward area in particular Wani-Alawun or Ngalyuwuy, or Jigirij. Again, the parties' submissions have referred to the paucity (in the case of the Malak Malak) or the adequacy (in the case of the Kamu) of the evidence available to support the Committee's findings as well as evidence from Malak Malak persons about the relationship of the Malak Malak to those sites. In some instances, the Malak Malak evidence was not referred to by the Committee in its reasons, although of course (with the exception of the sites in respect of which only the Kamu were found to have common spiritual affiliations) the Committee concluded that they were traditional Aboriginal owners in respect of those sites.


case_title: Cropper v Smith (1884) 26 Ch D 700

case_text: Perusal of the original Defence supported the respondents' claim that they conceded liability inadvertently: compare Defence, par 8. Bearing in mind the accepted principles, the respondents should have leave to file an Amended Defence, as counsel for the applicants properly conceded at the hearing: see Cropper v Smith (1884) 26 Ch D 700 at 710 per Bowen LJ; Queensland v JL Holdings Pty Limited [1997] HCA 1 ; (1997) 189 CLR 146 at 152 153 per Dawson, Gaudron and McHugh JJ; and Johnston v Vintage Developments Pty Limited [2006] FCAFC 171 at [23] per Tamberlin, Jacobson and Rares JJ. If the respondents were granted the leave they sought, no injustice would be done the applicants that could not be remedied by an award of costs in their favour.


case_title: Johnston v Vintage Developments Pty Limited [2006] FCAFC 171


case_title: Queensland v JL Holdings Pty Limited [1997] HCA 1 ; (1997) 189 CLR 146


case_text: By enacting s 31A , Parliament intended "to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by such authorities as Dey v Victorian Railway Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91-92 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129-130": see White Industries Aust Pty Ltd v Commissioner of Taxation [2007] FCA 511 at [54] per Lindgren J. Judges have differed, however, about the extent to which the provision achieves this end, but these differences probably do not much matter. The key is to address the statutory question. That is, under s 31A , in order to grant summary judgment, I must be satisfied that the respondents have no reasonable prospect of success in defending the infringement claim. As s 31A(3) makes clear, this does not mean that I must be satisfied that their defence is hopeless or bound to fail.


case_title: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125


case_title: White Industries Aust Pty Ltd v Commissioner of Taxation [2007] FCA 511


case_title: Hicks v Ruddock [2007] FCA 299

case_text: At the same time, the occasion for summary judgment must be clear before it will be granted: see Hicks v Ruddock [2007] FCA 299 at [13] per Tamberlin J. Summary judgment is inappropriate where there is a real dispute about the relevant facts and evidence: see Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd [2007] FCA 489 at [10] per Besanko J and Boston Commercial Services Pty Ltd v G E Capital Finance Australasia Pty Ltd [2006] FCA 1352 at [31] to [48] per Rares J; Australian and International Pilots Association v Qantas Airways Limited [2006] FCA 1441 at [23] per Tracey J; and Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [20] per French J.


case_title: Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd [2007] FCA 489


case_title: Boston Commercial Services Pty Ltd v G E Capital Finance Australasia Pty Ltd [2006] FCA 1352


case_title: Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401


case_title: Begg v Cooper (1878) 40 LT 29

case_text: I accept that there is power to grant leave to the applicants to rely on supplementary affidavits in support of their summary judgment motion: compare Begg v Cooper (1878) 40 LT 29 and Carlton and United Breweries Ltd v Long [1958] VR 539 at 540-542 per Smith J. Subject to one matter, I consider this power should be exercised in the applicant's favour. The affidavits do not alter the essential case the respondents were to meet on this summary judgment application. On one view, the respondents were entitled to summary judgment without them. The effect of the affidavits is simply to overcome two potential minor deficiencies in the applicants' supporting material. These deficiencies were clearly capable of being met by the applicants. Had they sought leave at the hearing on 29 October 2007 to file this further material, I would have granted it. I can see no good reason to deny them leave now.


case_title: Carlton and United Breweries Ltd v Long [1958] VR 539


case_outcome: applied

case_text: Finally, as noted above, the respondents have not pleaded reliance on s 123 of the 1995 Act in their Amended Defence. That is, they have not sought positively to assert that the counterfeit goods were not counterfeit because the marks in question were applied with the consent of the registered owner. Had they done so, then it would have been incumbent on them to make out their case: see Brother Industries, Ltd v Dynamic Supplies Pty Ltd [2007] FCA 1490 at [72] per Tamberlin J. As things stand, even if they had relied on s 123 , in the absence of evidence tending to support this assertion, there would be no reason to believe that they had any reasonable prospect of succeeding on a s 123 defence. 39 In these circumstances, there is nothing to be gained from adjourning this motion to permit the respondents to have a subpoena issued to Mr Duong. The respondents have not presented any evidence that would indicate that he could give relevant evidence concerning the issue of authorisation. They have not proposed in argument how he could give any such evidence. On the face of it, it seems most unlikely that he could assist the respondents at all on this question, especially when the evidence of Mr Shepherd is borne in mind.


case_text: In written submissions filed with leave after the hearing, counsel for the respondents submitted that s 123 was not 'a defence' in the strict sense. Instead, s 123 reduced the ambit of s 120. It was unnecessary, so counsel said, for the respondents to plead s 123 expressly as a defence. Even if this were so, it would not affect the outcome of the applicants' summary judgment motion. Let it be assumed that the Amended Defence positively asserted that the marks on the goods in question were applied with the registered owner's consent and the goods were not counterfeit. The respondents placed no evidence before the Court that tended to support this assertion: see Nokia Corporation v Truong [2005] FCA 1141 at [36] per Crennan J. Nor did they place any evidence before the Court that they had any such evidence available to them. 41 The pleadings and the evidence lead me to conclude that the first respondent has no reasonable prospects of defending the applicants' trade mark infringement claim. 42 Accordingly, providing the applicants file and serve the duly affirmed affidavits of Mr Shepherd and Ms Limpipat today, I would order summary judgment be entered on the trade mark infringement claim against the first respondent, Rosa Dora. I propose to adjourn the matter to enable the parties to prepare draft minutes of order to give effect to these reasons.


case_outcome: affirmed

case_text: This is an appeal from a decision of a Federal Magistrate which dismissed an application for review of a decision of the Refugee Review Tribunal. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse the appellant a protection visa. Details of the application, the Tribunal's decision and the decision of the Federal Magistrate are set out in the judgment of the latter, SZIMD v Minister for Immigration [2007] FMCA 445 , which is available on the internet. 2 The appellant is a citizen of the People's Republic of China. He claimed to have well-founded fear of persecution based on his membership of Falun Gong. He claimed to have practised Falun Gong since 1998 in order to assist his health. He also claimed that after the ban on Falun Gong in 1999 his health deteriorated. He claimed to have been detained on five occasions and been tortured. 3 Before the Tribunal the appellant claimed that he practised Falun Gong exercises in Australia with friends. He also claimed that he had a visa to visit Singapore, but had not in fact travelled there because on the way to the airport to go to Singapore he had been stopped and beaten. The Tribunal did not accept that the appellant was a Falun Gong practitioner and was subject to arrest and torture in China. He provided no written evidence and his application contained minimal details. He was not a credible witness in respect of key aspects. His evidence was unconvincing, generalised and lacking specificity, especially in relation to the claims of arrest. He was unable to elaborate in any details on the belief system of Falun Gong. He had not had contact with the Falun Association in Australia. The Tribunal found that the paucity of the appellant's evidence led it to find that he was not genuinely in fear of persecution.


case_text: As subcl (a) and (b) of s 999(1) of the Act prescribe eligibility for a double orphan pension by reference to a person having the responsibilities of a lawful custodian of a child, it is to be expected that s 999(1)(c) would impose some different and additional eligibility criterion. Nominally it does so. But, if the Secretary's contention is correct, it seems to me that it does so only by a circuitous route which imposes by s 999(1)(c) the same criterion for eligibility the existence of legal responsibilities as a custodian of a child as imposed by s 999(1)(a). Of course, it also imposes the criterion that the natural parents of the child be deceased, but the present issue is upon where there are adoptive parents. The criteria for eligibility could readily have excluded a person who is a custodian of a child appointed under s 7 of the Immigration Act and whose natural parents are deceased. It does not expressly do so. The term "parent" is not defined in the Immigration Act, and Mrs Waldron is not an "intending adoptive parent" under that Act for the reasons already given. It would be surprising if Mrs Waldron, who is not yet a parent of Isabelle (recognised under Australian law) but is her intending adoptive parent in the ordinary meaning of that term (but is not her "intending adoptive parent" as defined in the Immigration Act) should be regarded as an adoptive parent under the definition of "parent" in s 5 of the Act and for the purposes of s 999 of the Act. In that context, the additional criterion for eligibility for a double orphan pension in s 999(1)(c) includes, in my view, that the young person not have a parent, either natural or adoptive and recognised under Australian law. Persons with custody of a child but not enjoying the status of a person recognised under Australian law as a parent or an adoptive parent, and being vulnerable to the Minister's (or in this case the SA Manager for Adoption's) powers under s 7(2) of the Immigration Act, are therefore eligible for the double orphan pension. As the Immigration Act and the Act and the Family Assistance Act intersect on their operation, at least in respect of eligibility for the double orphan pension, they should be regarded as operating with consistently expressed meanings except where there is clearly a contrary intendment (e.g. the definition of "intending adoptive parent" in the Immigration Act): see e.g. per Brennan J in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 367-8. That approach maintains that consistency.


case_title: Re Application of K (1995) 36 NSWLR 477

case_text: The extensive research of counsel for the Secretary identified other legislation in which the term "adopted" might be taken in its context and for the purposes of particular legislation to include an adoption overseas which is not recognised in Australia, even though the definition does not explicitly say so. Examples include s 60D of the Family Law Act 1975 (Cth), ss 5 and 7 of the Child Support (Assessment) Act 1989 (Cth), and ss 23 and 23B of the Marriage Act 1961 (Cth). I agree with Brownie J in Re Application of K (1995) 36 NSWLR 477 at 479-480, for the reasons his Honour there gives, that the Family Law Act provisions should not inform the meaning of the definition of "parent" in the Immigration Act. Similar reasons apply in the case of the other two enactments mentioned. In Re Application of K , Brownie J at 484 decided that the word "parent" in s 4 of the Immigration Act (as in force at 1991) did not include a person who had adopted a child in another country where that adoption order was not recognised in Australia. The Immigration Act was amended in significant respects by the Immigration (Guardianship of Children) Amendment Act 1994 (Cth) so his Honour's conclusion in that regard is not of present significance. Counsel's research also identified that s 10A of the Australian Citizenship Act 1948 (Cth) suggests that an adoption overseas not recognised by Australian law does not itself result in the adopted child becoming an Australian citizen, and that s 9 of the Domicile Act 1982 (Cth) expressly is limited to adoptions recognised under Australian law. Again, those provisions in my view do not relevantly inform the proper construction of ss 5, 993 and 999 of the Act. 41 Accordingly, given the legislative and regulatory regime under which Isabelle's status is presently defined, the Waldrons are not for the purposes of the Act her adoptive parents. They are not yet so recognised under Australian law. The term adoptive parent is not defined and so should be given its ordinary meaning. But even if it is given the meaning to be derived correspondingly to the definition of "adopted child", there is no reason to extend that term's scope to a child whose legal guardian is the Commonwealth Minister and whose present status under Australian law generally is not yet that of an adoptive child. There is not, in the definition of "adopted child", any firm indication that it is intended to extend to a child who, under Australian law, is not recognised as having been adopted, and whose "adoption" is under a law of a country other than Australia and which is not, and is not capable of being, recognised under Australian law. 42 There is an issue as to whether persons in the positions of lawful custodians who have adopted a child overseas, where the adoption is not recognised in Australia, might be eligible for other benefits under the Act. Their circumstance is addressed to some degree by the Family Assistance Act, where generally the relevant eligibility criterion is the existence of responsibilities towards the child by reason of lawful custody of the child. Under the Act, any eligibility for the benefits under its other provisions is no doubt expressed in different terms and would depend upon the particular terms of the relevant provisions. In the case of the double orphan pension, for the reasons I have given, that eligibility exists because Mrs Waldron does not yet fall within the definition of "parent" in s 5(1) both generally and because the particular legislative context indicates an intention that she should not do so.


case_text: SZAXY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 76 at [11] , Wilcox J observed: Views may sometimes differ as to whether a particular procedural step ought to be taken in the conduct of a review. The fact that the Court might have formed a different opinion to the Tribunal member in relation to a procedural decision does not in itself demonstrate lack of good faith by the Tribunal. His Honour's observation was made in the context of a challenge on the administrative law error ground of bad faith, but it might equally well have been made to like effect in respect of any challenge on the basis of unreasonableness to a procedural decision made by the Tribunal. It is not impossible to conceive of a case whereby an unreasonable decision in respect of a matter of procedure on the part of the Tribunal might, for example, violate the obligation found in s 425(1) , to invite a visa applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. Equally, it is not impossible to see how an unreasonable allowance of time to respond to a request under s 424A or the provision of information in response to an invitation given by the Tribunal might violate the requirements of that section. "Unreasonableness" here though would have to be of the order that no reasonable Tribunal in the circumstances could have made the particular procedural decision which it did. The decision would have to be to adopt an adjective appropriately put forward on behalf of the Minister: "capricious". That is not this case in respect of the circumstances attending the making of the Tribunal's decision, as the learned Federal Magistrate plainly appreciated. It is evident that the Tribunal considered on the merits and made value judgments reasonably open in respect of each procedural event which occurred between the filing of the review application and the making of the final decision. One of the earlier procedural events concerned whether the Appellant was then not just physically but also mentally able to attend and give evidence and present his case at a hearing. The Tribunal took the initiative of inviting the Appellant to attend upon a specialist psychiatrist for the purpose of a report being furnished concerning his then state of health and wellbeing. This the Tribunal was entitled to do. The Tribunal then acted on the strength of the report given in making an earlier procedural value judgment. Again, the Tribunal was entitled to act upon such information. As the learned Federal Magistrate remarked at para 11, Dr Walker (the psychiatrist concerned) provided that opinion and as a result the Tribunal put off a hearing for a very considerable period of time: As I have already noted, after April 2008 the applicant no longer made any complaints of a psychological nature. The Tribunal certainly did not prevent the applicant from finding his own doctor. It merely noted: "He was indigent and would have difficulty in so doing." The learned Federal Magistrate observed prosaically but not inaccurately that: This tribunal bent over backwards to assist the applicant and give him extensions of time for a period of over a year from June 2007 when he lodged his application to July 2008 when the last hearing was scheduled. I respectfully agree with those observations.


case_outcome: followed

case_text: SZLLY v Minister for Immigration and Citizenship [2009] FCA 185 ; (2009) 107 ALD 352 at [19] , Perram J observed that: The Full Court's decision in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553 establishes three propositions which are pertinent. First, the invitation contemplated by section 425 must not be a hollow shell or an empty gesture: at [33]. Second, another way of putting the first requirement may be to say that the tribunal must provide a 'real and meaningful' invitation: at [37]. Third, what is real and meaningful is to be objectively determined and the obligation exists whether or not the tribunal is aware of the circumstances which would defeat that obligation: at [37].