case_text: Any material in response to the applicant's material in support of his motion for an extension of time should be filed and served by 4 pm on Friday 2 December.' 36 These comprehensive directions appear to have been misconstrued by the applicant. An Amended Statement of Claim was filed by the applicant on 5 December 2005. This document goes well beyond what the applicant had 'foreshadowed'. 37 The Amended Statement of Claim has changed the pleading of the date of publication, from 'between 19 August and 30 September 1999', to 'between 19 August 1999 and 30 November 1999'. The effect of this change is to plead a cause action for which the limitation period has expired. Secondly, in his Amended Statement of Claim, the applicant has added a respondent, being Catalyst Newspapers Proprietary Limited. 38 There was nothing in the grant of leave that gave the applicant the ability to add a party or to amend the substance of the claim, as the applicant has done. In particular, it is not competent, without leave, to amend a pleading if the effect of the amendment was to plead a cause of action in respect of which the relevant period of limitation had expired. 39 Because Mr Sharples is acting for himself, I think the better course is to consider his notice of motion to be an application for an extension of time in which to bring his proposed causes of action; the relevant periods of limitation having expired. 40 In an affidavit filed 11 November 2005, the applicant provides various reasons for his failure to lodge his claim within time. He says that although he became aware of the publication in late 2001, he received legal advice in March 2002 that he had insufficient evidence to found a claim in damages. He further asserts that, despite his best endeavours, he could not receive a copy of the article to enable him to pursue his action until searching the Queensland State Archives in September 2005. He contends the newspaper was not available by normal means, being posted out to supporters and members of the party. 41 In his affidavit, the applicant also contends: '5. I verily believe no prejudice will be occasioned by the respondents by an order extending time, should such an order, as a matter of law, be required to found these proceedings. 6. I verily believe there is an addition to my own interests in this litigation a public interest in bring to account people who wrongfully misuse and abuse the constitutional freedom of speech in this country, for personal advantage.' 42 One difficulty the applicant faces is his claim that he first obtained a copy of the newspaper article in late September 2005. Only at this time, the applicant claims, did he have sufficient evidence to institute legal proceedings against the various respondents. However, the applicant seeks to show a republication of the article. He points to an affidavit of Mr Ettridge, who swears that ' sometime' in December 1999, he received a copy of the Catalyst newspaper by post. Of course, this is after 30 November 1999, the end point of the period for which he contends in the Amended Statement of Claim filed 5 December 2005. 43 The applicant contends that publication occurs ' not just when the newspaper is printed. It's when it is when people read it. Every time people read something like that, it's re-published. And that's the time-frame that should be applied here'. He further stated ' the person is defamed every time someone reads it'. 44 The only evidence before the Court of publication, or re-publication of the article, is to Mr Ettridge ' sometime ' in December 1999. This is the date that the applicant contends the limitation period should commence; this is the date the applicant seeks to have as the ' publication point '. 45 The applicant contends that his ignorance of the publication should be no bar against his claim; that he did not have any reasonable way of knowing about the alleged defamation until it was told to him verbally, and he could thus make proper inquiry and obtain a copy of the newspaper. 46 The applicant's reasoning poses problems. If the applicant's contentions are correct, and it is 'just' to extend time to bring an action to the time a party learns that he has suffered damage, then there would effectively be no limitation period in respect of defamation. Unfortunately for the applicant (except for exceptions of fraudulent concealment and the like), limitation periods do not start to run from the period a person learns they have suffered damage. 47 In the original Statement of Claim the conduct on which of the respondents on which he complains is said to have taken place between 19 August 1999 and 30 September 1999. The applicant's proceedings were not commenced until 3 October 2005, which is after the affluxion of the period of limitation of six years. Even with the changes introduced by the Amended Statement of Claim filed on 5 December 2005, which extended the period so that the relevant period was 19 August 1999 to 30 November 1999, the causes were then out of time. 48 The right to bring actions under the Trade Practices Act 1974 (Cth) at the time was within the period of three years. The period of limitation by subsequent amendments to the Trade Practices Act has now been extended to six years, but those amendments were not retrospective. The applicant on any view of the relevant time period is out of time and statute barred in respect to breaches of the Trade Practices Act 1974 (Cth). 49 In respect of claims based on the Corporations Law 1999 (Cth) or compensation pursuant to the Corporations Act 2001 (Cth), the relevant limitation periods again were no more than three years. 50 Viewing the matter more generally, the present application by the applicant, is one made in early 2006, for an extension of time to bring proceedings in respect of conduct that occurred at the latest by the end of December 1999. Nothing in the material before the Court provides a basis for concluding that it would be just for the period within which to bring proceedings to be extended this time. 51 The claims for damages, with their various statutory foundations are statute barred and those claims should be struck out: see Kim v Minister for Immigration, Local Government and Ethnic Affairs and the Commonwealth of Australia (1989) FCA 770 . 52 As to the applicant's claims for declarations, s 21 of the Federal Court of Australia Act 1976 (Cth) provides: '21 Declarations of right (1) The Court may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed. (2) A suit is not open to objection on the ground that a declaratory order only is sought.' 53 The purpose of declarations were discussed by this Court in Warramunda Village Inc v Pryde [2001] FCA 61 , where the Court, discussing the power in s 21 , said at par [8]: '...The remedy of a declaration of right is ordinarily granted as final relief in a proceeding. It is intended to state the rights of the parties with respect to a particular matter with precision, and in a binding way. The remedy of a declaration is not an appropriate way of recording in a summary form, conclusions reached by the Court in reasons for judgment. This is even more strongly the case when the conclusion is not one from which any right or liability necessarily flows.' 54 In the light of my conclusions about the various claims for damages, the present case is not one in which there would be any basis for the making of the declarations sought. 55 For the above reasons the Notice of Motion by the applicant seeking that the 'Time for issuing of these proceedings be extended if required by law until........ 2 October 2005' be dismissed and that the relief claimed in par [2] of the applicant's Notice of Motion filed 11 November 2005, namely, 'That leave be granted for further amended pleadings after the examination of the First and Second Respondents in relation to the description of persons concerned with the printing, production and publication of the newspaper known as the catalyst' be refused. 56 On the Notice of Motion by the First and Second Respondents, the Court orders that the applicant's application and statement of claim be struck out, as statute barred. 57 The applicant in the principal proceedings should pay the costs of the first and second respondents of the two Notices of Motion, to be taxed if not agreed. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. Associate: Dated: 7 April 2006 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Tim Matthews Solicitor for the Respondent: Greg Ploetz Date of Hearing: 7 February 2006 Date of Judgment: 7 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/387.html


case_outcome: referred to

case_text: In Austal Ships Pty Ltd v Stena Rederei Aktiebolag (2005) 66 IPR 420 at 422 [6] Bennett J noted the expression of the issue by Emmett J in F Hoffman-La Roche AG v New England Biolabs Inc [2000] FCA 283 ; (2000) 99 FCR 56 where, after an examination of the authorities governing the nature of the opposition proceeding, including the decision of the Full Court in Genetics Institute Inc v Kirin-Amgen Inc [1999] FCA 742 ; 92 FCR 106 , his Honour said the following at 70-71 [66] and [67]: "I have been taken to a number of other authorities in which questions have arisen as to the nature of the evidence that should be permitted in proceedings such as these. I do not regard any of those authorities as decisive one way or the other. As I have said, however, I do draw some comfort from the cases to which I have just referred for my conclusion, based on the scheme of the legislation, that there is a significant distinction to be drawn between the nature of an opposition proceeding under s 60 (or under the 1990 Act for that matter), on the one hand, and proceedings for revocation on other. The former is, in a sense, in the nature of an interlocutory proceeding, although any analogy tends to be misleading. There are some suggestions in early High Court authorities, that an opposition proceeding is in the nature of a summary proceeding ... Either analogy might suggest that the question to be determined in an opposition proceeding is whether there is a serious question as to whether or not a patent, if granted, might be valid. If there is, then the application should proceed to grant. The language employed in the cases to which I have referred suggests that it should appear clear to the Court that no patent granted in respect of the specification would be valid. I consider that, before the Court would uphold an opposition to the grant of a patent, the Court should be clearly satisfied that the patent, if granted, would not be valid. That, however, is not to say that an opponent should not be permitted appropriate opportunity to lead evidence-in-chief as to the facts that are designed to demonstrate, with the requisite degree of clarity, that a patent, if granted, would not be valid. Where the subject matter of the patent is one of complexity, of necessity, the evidence that an opponent would be entitled to adduce would itself be of considerable complexity." [citations omitted] 12 I am bound by Genetics Institute Inc v Kirin Angen Inc [1999] FCA 742 ; 92 FCR 106, and, by comity, would respectfully follow the views of Emmett J in F Hoffman-La Roche AG v New England Biolabs Inc [2000] FCA 283 ; 99 FCR 56, Bennett J in Austal Ships 66 IPR 420 and Branson J in E I Dupont de Nemours v Imperial Chemical Industries 54 IPR 304 .


case_text: The reverse infringement test cannot be applied literally: see Nicaro Holdings Pty Ltd v Martin Engineering Co (1990) 91 ALR 513 at 528 and R D Werner & Co Inc v Bailey Aluminium Products Pty Ltd (1989) 25 FCR 565 at 568-569. And see generally Bristol Myers Squibb Company v FH Faulding & Co Ltd [2000] FCA 316 ; (2000) 97 FCR 524 at 546-49 [60] - [68] ; Jupiter Ltd v Neurizon Pty Ltd (2005) 65 IPR 86 at 105-106; Fresenius Medical Care Australia Pty Ltd v Gambro Pty Ltd (2005) 67 IPR 230; Pfizer Overseas Pharmaceuticals v Eli Lilly & Co (2005) 68 IPR 1 at 66-69 [311]-[324]; Imperial Chemical Industries Pty Ltd v Commissioner of Patents (2004) 63 IPR 476 at 487-490 [60]-[68]; Merck & Co Inc v Arrow Pharmaceuticals Ltd [2006] FCAFC 91 ; (2006) 68 IPR 511 at 537-538 [104] - [112] .


case_text: Though styled an "appeal" in the Act, the proceedings before the Court are in the original jurisdiction of the Court dealing with the matter afresh in the way discussed in New England Biolabs Inc v F Hoffman-La Roche AG [2004] FCAFC 213 ; (2004) 141 FCR 1 at 10-14 [23] - [46] . Thus, it is unnecessary to analyse in any detail the reasoning of the delegate based on such evidence as was before him. Nevertheless, it may be appropriate for the Court to accord respect and a degree of weight to the views of the delegate informed as they were by his experience and technical skill: Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5 ; (1999) 199 CLR 135 at 154-55 [45] - [47] ; Eclipse Sleep Products Inc v Registrar of Trade Marks [1957] HCA 86 ; (1957) 99 CLR 300 at 321-22; and E I Du Pont de Nemours and Company v ICI Chemicals and Polymers Ltd (2006) 66 IPR 462 at 469 [14]. The circumstances that would affect the weight to be given to the views of the delegate include the differences or similarities between the material placed before the delegate and the evidence led before the Court. There was such a difference here. I will return to this issue in due course. It is also necessary to recognise the nature of the judicial task thus described. In Genetics Institute Inc v Kirin-Amgen Inc [1999] FCA 742 ; (1999) 92 FCR 106 at 111-112 [17] and [19], the Full Court said the following, illuminating the nature of the judicial task of the Court: "During the hearing there was some discussion as to the possibility of the owner of a patent the grant of which was unsuccessfully opposed, defending a revocation proceeding instituted by the pre-grant opponent by raising an issue estoppel in respect of the findings of fact of the single judge. In the present case, however, the respondent has conceded that no issue estoppel would apply to the findings of fact of Heerey J in any revocation proceeding instituted by the applicant in respect of the patent. In any event, the difference between the issue determined by his Honour in the pre-grant opposition proceeding, and the issue that would arise for determination in any revocation proceeding instituted by the applicant, is in our view sufficient to preclude the operation of issue estoppel principles in that second proceeding. The overriding issue in the pre-grant opposition proceeding before Heerey J was whether it was practically certain that the patent to be granted on the specification would have been invalid on the ground that the content of the specification was not in accordance with the requirements of s 40 of the Patents Act 1952 (Cth) ( Genetics Institute Inc v Kirin-Amgen Inc (No 3) (1998) 156 ALR 30 at 39-41). Even if revocation of the patent was subsequently sought by the applicant on the virtually identical ground of non-compliance with subs 40(2) or subs 40(3) of the current Act (see par 138(3)(f) of the Act), the issue for determination by the judge hearing that revocation application would be whether the patent should be revoked for the specification's non-compliance with subs 40(2) or subs 40(3). The decision of Heerey J that it was not practically certain that the patent should be so revoked would be inconclusive of this issue. Accordingly, there would be no scope for the operation of an issue estoppel in relation to the decision of Heerey J in any post-grant revocation proceeding instituted by the applicant in respect of the current patent. ... As the parties in the present case accepted, the purpose of pre-grant opposition proceedings is to provide a swift and economical means of settling disputes that would otherwise need to be dealt with by the courts in more expensive and time consuming post-grant litigation; that is, to decrease the occasion for costly revocation proceedings by ensuring that bad patents do not proceed to grant. This purpose is reflected in the explanation by the Minister for Science for the Federal Government's policy decision to retain pre-grant opposition proceedings in Australia, despite the recommendation of the 1984 Industrial Property Advisory Committee Report Patents, Innovation and Competition in Australia (IPAC Report) that they be abolished (recommendation 29). 'Pre-grant opposition provides a relatively inexpensive mechanism for resolving third party disputes as to validity. Opposition procedures will be made more stringent in order to expedite the determination of oppositions." [(1986) 56 No 47 Official Journal of Patents, Trade Marks and Designs 1475.]'" [emphasis added]


case_title: Eclipse Sleep Products Inc v Registrar of Trade Marks [1957] HCA 86 ; (1957) 99 CLR 300


case_title: E I Du Pont de Nemours and Company v ICI Chemicals and Polymers Ltd (2006) 66 IPR 462


case_title: E I Du Pont de Nemours and Company v ICI Chemicals and Polymers Ltd [2003] FCA 291 ; (2003) 128 FCR 392

case_text: The potential procedural consequences of the recognition of the nature of the task before the Court in an appeal from opposition proceedings were illustrated in E I Du Pont de Nemours and Company v ICI Chemicals & Polymers Ltd [2003] FCA 291 ; (2003) 128 FCR 392 at 396-97 [25] , where Emmett J said: "In opposition proceedings, the opponent must establish that it is practically certain that the patent that would be granted on the application would be invalid. Thus, opposition should be confined to those grounds that have a fair potential to establish clearly that the prospective patent would be invalid. To permit an opponent, without some justification, to rely on new grounds of invalidity on an appeal from a decision of the Commissioner, or grounds abandoned below, may tend to be inconsistent with the object of opposition proceedings."


case_text: Similar views were expressed by Branson J in E I Dupont de Nemours and Company v Imperial Chemical Industries Plc (2002) 54 IPR 304. 12 I am bound by Genetics Institute Inc v Kirin Angen Inc [1999] FCA 742 ; 92 FCR 106, and, by comity, would respectfully follow the views of Emmett J in F Hoffman-La Roche AG v New England Biolabs Inc [2000] FCA 283 ; 99 FCR 56, Bennett J in Austal Ships 66 IPR 420 and Branson J in E I Dupont de Nemours v Imperial Chemical Industries 54 IPR 304 .


case_text: In Austal Ships Pty Ltd v Stena Rederei Aktiebolag (2005) 66 IPR 420 at 422 [6] Bennett J noted the expression of the issue by Emmett J in F Hoffman-La Roche AG v New England Biolabs Inc [2000] FCA 283 ; (2000) 99 FCR 56 where, after an examination of the authorities governing the nature of the opposition proceeding, including the decision of the Full Court in Genetics Institute Inc v Kirin-Amgen Inc [1999] FCA 742 ; 92 FCR 106 , his Honour said the following at 70-71 [66] and [67]: "I have been taken to a number of other authorities in which questions have arisen as to the nature of the evidence that should be permitted in proceedings such as these. I do not regard any of those authorities as decisive one way or the other. As I have said, however, I do draw some comfort from the cases to which I have just referred for my conclusion, based on the scheme of the legislation, that there is a significant distinction to be drawn between the nature of an opposition proceeding under s 60 (or under the 1990 Act for that matter), on the one hand, and proceedings for revocation on other. The former is, in a sense, in the nature of an interlocutory proceeding, although any analogy tends to be misleading. There are some suggestions in early High Court authorities, that an opposition proceeding is in the nature of a summary proceeding ... Either analogy might suggest that the question to be determined in an opposition proceeding is whether there is a serious question as to whether or not a patent, if granted, might be valid. If there is, then the application should proceed to grant. The language employed in the cases to which I have referred suggests that it should appear clear to the Court that no patent granted in respect of the specification would be valid. I consider that, before the Court would uphold an opposition to the grant of a patent, the Court should be clearly satisfied that the patent, if granted, would not be valid. That, however, is not to say that an opponent should not be permitted appropriate opportunity to lead evidence-in-chief as to the facts that are designed to demonstrate, with the requisite degree of clarity, that a patent, if granted, would not be valid. Where the subject matter of the patent is one of complexity, of necessity, the evidence that an opponent would be entitled to adduce would itself be of considerable complexity." [citations omitted] 11 The cases referred to by Emmett J in F Hoffman La Roche AG v New England Biolabs Inc [2000] FCA 283 ; 99 FCR 56 and the decision of the Full Court in Genetics Institute Inc v Kirin-Angen Inc [1999] FCA 742 ; 92 FCR 106 lead to the conclusions that the issue for resolution by the Court is whether it can be concluded clearly or as a matter of practical certainty that the opposition is well made and that the patent, if granted, would be bad, and that the issue for resolution by the Court is not whether the matters grounding the opposition (here want of novelty and obviousness) have been made out in the manner required in revocation proceedings. 12 I am bound by Genetics Institute Inc v Kirin Angen Inc [1999] FCA 742 ; 92 FCR 106, and, by comity, would respectfully follow the views of Emmett J in F Hoffman-La Roche AG v New England Biolabs Inc [2000] FCA 283 ; 99 FCR 56, Bennett J in Austal Ships 66 IPR 420 and Branson J in E I Dupont de Nemours v Imperial Chemical Industries 54 IPR 304 .


case_outcome: discussed

case_text: There was no disagreement about the expression of the principles of construction. The debate lay in the different application of them, in particular in the subtle question of the correct perspective from, or prism through, which to read the patent application. The construction of the claims takes place in the context of the specification as a whole, recognising the existence and role of the different parts thereof, the Court having placed itself in the position of someone acquainted with the state of the art: Fresenius Medical Care Australia Pty Ltd v Gambro Pty Ltd (2005) 67 IPR 230 at 236 [39]; Welch Perrin & Co Pty Ltd v Worrel [1960] HCA 91 ; (1961) 106 CLR 588 at 610; and Kimberly-Clark Australia Pty Ltd v Arico Trading International Pty Ltd [2001] HCA 8 ; (2001) 207 CLR 1 at 16 [24] . That said, two different people skilled in the art may take the meaning of the specification as a whole or the claims therein differently. That may reflect the perennial problem of the imprecision of language, meaning and perception or it may reflect different emphases taken from the prior art. In such cases (as to a degree is the case here) the following words of Hely J in Flexible Steel Lacing Company v Beltreco Ltd (2000) 49 IPR 331 at 350 [81] are apposite (in his Honour's always helpful, if I may respectfully say so, discussion of the principles of construction of patents at 347-350 [70]-[81]): "As a general rule, the terms of a specification should be accorded their ordinary English meaning. Evidence can be given by experts on the meaning which those skilled in the art would give to technical or scientific terms and phrases and on unusual or special meanings given by such persons to words which might otherwise bear their ordinary meaning. However, the construction of the specification is for the Court, not for the expert witness. Insofar as a view expressed by an expert depends upon a reading of the patent, it cannot carry the day unless the Court reads the patent in the same way." [citations omitted]


case_text: There was no disagreement about the expression of the principles of construction. The debate lay in the different application of them, in particular in the subtle question of the correct perspective from, or prism through, which to read the patent application. The construction of the claims takes place in the context of the specification as a whole, recognising the existence and role of the different parts thereof, the Court having placed itself in the position of someone acquainted with the state of the art: Fresenius Medical Care Australia Pty Ltd v Gambro Pty Ltd (2005) 67 IPR 230 at 236 [39]; Welch Perrin & Co Pty Ltd v Worrel [1960] HCA 91 ; (1961) 106 CLR 588 at 610; and Kimberly-Clark Australia Pty Ltd v Arico Trading International Pty Ltd [2001] HCA 8 ; (2001) 207 CLR 1 at 16 [24] . That said, two different people skilled in the art may take the meaning of the specification as a whole or the claims therein differently. That may reflect the perennial problem of the imprecision of language, meaning and perception or it may reflect different emphases taken from the prior art. In such cases (as to a degree is the case here) the following words of Hely J in Flexible Steel Lacing Company v Beltreco Ltd (2000) 49 IPR 331 at 350 [81] are apposite (in his Honour's always helpful, if I may respectfully say so, discussion of the principles of construction of patents at 347-350 [70]-[81]): "As a general rule, the terms of a specification should be accorded their ordinary English meaning. Evidence can be given by experts on the meaning which those skilled in the art would give to technical or scientific terms and phrases and on unusual or special meanings given by such persons to words which might otherwise bear their ordinary meaning. However, the construction of the specification is for the Court, not for the expert witness. Insofar as a view expressed by an expert depends upon a reading of the patent, it cannot carry the day unless the Court reads the patent in the same way." [citations omitted] 67 The reverse infringement test cannot be applied literally: see Nicaro Holdings Pty Ltd v Martin Engineering Co (1990) 91 ALR 513 at 528 and R D Werner & Co Inc v Bailey Aluminium Products Pty Ltd (1989) 25 FCR 565 at 568-569. And see generally Bristol Myers Squibb Company v FH Faulding & Co Ltd [2000] FCA 316 ; (2000) 97 FCR 524 at 546-49 [60] - [68] ; Jupiter Ltd v Neurizon Pty Ltd (2005) 65 IPR 86 at 105-106; Fresenius Medical Care Australia Pty Ltd v Gambro Pty Ltd (2005) 67 IPR 230; Pfizer Overseas Pharmaceuticals v Eli Lilly & Co (2005) 68 IPR 1 at 66-69 [311]-[324]; Imperial Chemical Industries Pty Ltd v Commissioner of Patents (2004) 63 IPR 476 at 487-490 [60]-[68]; Merck & Co Inc v Arrow Pharmaceuticals Ltd [2006] FCAFC 91 ; (2006) 68 IPR 511 at 537-538 [104] - [112] .


case_text: An essential step in deciding any question of novelty or anticipation is the proper construction of both the prior publication and the claims in the patent application in the light of all admissible evidence: General Tire & Rubber Company v Firestone Tyre and Rubber Company Ltd (1971) 1A IPR 121 at 137-38. The matter was expressed in General Tire & Rubber 1A IPR at 138 as follows: "When the prior inventor's publication and the patentee's claim have respectively been construed by the court in the light of all properly admissible evidence to technical matters, the meaning of words and expressions used in the art and so forth, the question whether the patentee's claim is new for the purposes of s 32(1)(e) falls to be decided as a question of fact. If the prior inventor's publication contains a clear description of, or clear instructions to do or make, something that would infringe the patentee's claim if carried out after the grant of the patentee's patent, the patentee's claim will have been shown to lack the necessary novelty, that is to say, it will have been anticipated. The prior inventor, however, and the patentee may have approached the same device from different starting points and may for this reason, or it may be for other reasons, have so described their devices that it cannot be immediately discerned from a reading of the language which they have respectively used that they have discovered in truth the same device; but if carrying out the directions contained in the prior inventor's publication will inevitably result in something being made or done which, if the patentee's patent were valid, would constitute an infringement of the patentee's claim, this circumstance demonstrates that the patentee's claim has in fact been anticipated. If, on the other hand, the prior publication contains a direction which is capable of being carried out in a manner which would infringe the patentee's claim, but would be at least as likely to be carried out in a way which would not do so, the patentee's claim will not have been anticipated, although it may fail on the ground of obviousness. To anticipate the patentee's claim the prior publication must contain clear and unmistakable directions to do what the patentee claims to have invented: Flour Oxidising Co Ltd v Carr & Co Ltd (1908) 25 RPC 428 at 457, line 34, approved in BTH Co Ltd v Metropolitan Vickers Electrical Co Ltd (1928) 45 RPC 1 at 24, line 1. A signpost, however clear, upon the road to the patentee's invention will not suffice. The prior inventor must be clearly shown to have planted his flag at the precise destination before the patentee." [emphasis added]


case_text: Though styled an "appeal" in the Act, the proceedings before the Court are in the original jurisdiction of the Court dealing with the matter afresh in the way discussed in New England Biolabs Inc v F Hoffman-La Roche AG [2004] FCAFC 213 ; (2004) 141 FCR 1 at 10-14 [23] - [46] . Thus, it is unnecessary to analyse in any detail the reasoning of the delegate based on such evidence as was before him. Nevertheless, it may be appropriate for the Court to accord respect and a degree of weight to the views of the delegate informed as they were by his experience and technical skill: Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5 ; (1999) 199 CLR 135 at 154-55 [45] - [47] ; Eclipse Sleep Products Inc v Registrar of Trade Marks [1957] HCA 86 ; (1957) 99 CLR 300 at 321-22; and E I Du Pont de Nemours and Company v ICI Chemicals and Polymers Ltd (2006) 66 IPR 462 at 469 [14]. The circumstances that would affect the weight to be given to the views of the delegate include the differences or similarities between the material placed before the delegate and the evidence led before the Court. There was such a difference here. I will return to this issue in due course. It is also necessary to recognise the nature of the judicial task thus described. In Genetics Institute Inc v Kirin-Amgen Inc [1999] FCA 742 ; (1999) 92 FCR 106 at 111-112 [17] and [19], the Full Court said the following, illuminating the nature of the judicial task of the Court: "During the hearing there was some discussion as to the possibility of the owner of a patent the grant of which was unsuccessfully opposed, defending a revocation proceeding instituted by the pre-grant opponent by raising an issue estoppel in respect of the findings of fact of the single judge. In the present case, however, the respondent has conceded that no issue estoppel would apply to the findings of fact of Heerey J in any revocation proceeding instituted by the applicant in respect of the patent. In any event, the difference between the issue determined by his Honour in the pre-grant opposition proceeding, and the issue that would arise for determination in any revocation proceeding instituted by the applicant, is in our view sufficient to preclude the operation of issue estoppel principles in that second proceeding. The overriding issue in the pre-grant opposition proceeding before Heerey J was whether it was practically certain that the patent to be granted on the specification would have been invalid on the ground that the content of the specification was not in accordance with the requirements of s 40 of the Patents Act 1952 (Cth) ( Genetics Institute Inc v Kirin-Amgen Inc (No 3) (1998) 156 ALR 30 at 39-41). Even if revocation of the patent was subsequently sought by the applicant on the virtually identical ground of non-compliance with subs 40(2) or subs 40(3) of the current Act (see par 138(3)(f) of the Act), the issue for determination by the judge hearing that revocation application would be whether the patent should be revoked for the specification's non-compliance with subs 40(2) or subs 40(3). The decision of Heerey J that it was not practically certain that the patent should be so revoked would be inconclusive of this issue. Accordingly, there would be no scope for the operation of an issue estoppel in relation to the decision of Heerey J in any post-grant revocation proceeding instituted by the applicant in respect of the current patent. ... As the parties in the present case accepted, the purpose of pre-grant opposition proceedings is to provide a swift and economical means of settling disputes that would otherwise need to be dealt with by the courts in more expensive and time consuming post-grant litigation; that is, to decrease the occasion for costly revocation proceedings by ensuring that bad patents do not proceed to grant. This purpose is reflected in the explanation by the Minister for Science for the Federal Government's policy decision to retain pre-grant opposition proceedings in Australia, despite the recommendation of the 1984 Industrial Property Advisory Committee Report Patents, Innovation and Competition in Australia (IPAC Report) that they be abolished (recommendation 29). 'Pre-grant opposition provides a relatively inexpensive mechanism for resolving third party disputes as to validity. Opposition procedures will be made more stringent in order to expedite the determination of oppositions." [(1986) 56 No 47 Official Journal of Patents, Trade Marks and Designs 1475.]'" [emphasis added] 7 In Austal Ships Pty Ltd v Stena Rederei Aktiebolag (2005) 66 IPR 420 at 422 [6] Bennett J noted the expression of the issue by Emmett J in F Hoffman-La Roche AG v New England Biolabs Inc [2000] FCA 283 ; (2000) 99 FCR 56 where, after an examination of the authorities governing the nature of the opposition proceeding, including the decision of the Full Court in Genetics Institute Inc v Kirin-Amgen Inc [1999] FCA 742 ; 92 FCR 106 , his Honour said the following at 70-71 [66] and [67]: "I have been taken to a number of other authorities in which questions have arisen as to the nature of the evidence that should be permitted in proceedings such as these. I do not regard any of those authorities as decisive one way or the other. As I have said, however, I do draw some comfort from the cases to which I have just referred for my conclusion, based on the scheme of the legislation, that there is a significant distinction to be drawn between the nature of an opposition proceeding under s 60 (or under the 1990 Act for that matter), on the one hand, and proceedings for revocation on other. The former is, in a sense, in the nature of an interlocutory proceeding, although any analogy tends to be misleading. There are some suggestions in early High Court authorities, that an opposition proceeding is in the nature of a summary proceeding ... Either analogy might suggest that the question to be determined in an opposition proceeding is whether there is a serious question as to whether or not a patent, if granted, might be valid. If there is, then the application should proceed to grant. The language employed in the cases to which I have referred suggests that it should appear clear to the Court that no patent granted in respect of the specification would be valid. I consider that, before the Court would uphold an opposition to the grant of a patent, the Court should be clearly satisfied that the patent, if granted, would not be valid. That, however, is not to say that an opponent should not be permitted appropriate opportunity to lead evidence-in-chief as to the facts that are designed to demonstrate, with the requisite degree of clarity, that a patent, if granted, would not be valid. Where the subject matter of the patent is one of complexity, of necessity, the evidence that an opponent would be entitled to adduce would itself be of considerable complexity." [citations omitted] 9 What lies behind this approach is the purpose of pre-grant opposition proceedings, as discussed by the Full Court in Genetics Institute Inc v Kirin-Amgen Inc [1999] FCA 742 ; 92 FCR 106 at [19] , in the second emphasised passage cited above. 10 The parties were agreed that the amendments effected by the Patents Amendment Act 2001 (Cth) do not affect the approach of the Court in this respect in this case. 11 The cases referred to by Emmett J in F Hoffman La Roche AG v New England Biolabs Inc [2000] FCA 283 ; 99 FCR 56 and the decision of the Full Court in Genetics Institute Inc v Kirin-Angen Inc [1999] FCA 742 ; 92 FCR 106 lead to the conclusions that the issue for resolution by the Court is whether it can be concluded clearly or as a matter of practical certainty that the opposition is well made and that the patent, if granted, would be bad, and that the issue for resolution by the Court is not whether the matters grounding the opposition (here want of novelty and obviousness) have been made out in the manner required in revocation proceedings. 12 I am bound by Genetics Institute Inc v Kirin Angen Inc [1999] FCA 742 ; 92 FCR 106, and, by comity, would respectfully follow the views of Emmett J in F Hoffman-La Roche AG v New England Biolabs Inc [2000] FCA 283 ; 99 FCR 56, Bennett J in Austal Ships 66 IPR 420 and Branson J in E I Dupont de Nemours v Imperial Chemical Industries 54 IPR 304 .


case_title: Imperial Chemical Industries Pty Ltd v Commissioner of Patents (2004) 63 IPR 476


case_title: Jupiter Ltd v Neurizon Pty Ltd (2005) 65 IPR 86


case_title: Kimberly-Clark Australia Pty Ltd v Arico Trading International Pty Ltd [2001] HCA 8 ; (2001) 207 CLR 1


case_title: Merck & Co Inc v Arrow Pharmaceuticals Ltd [2006] FCAFC 91 ; (2006) 68 IPR 511


case_outcome: applied

case_text: The basic test for anticipation or want of novelty is the reverse infringement test set out by Aickin J in Meyers Taylor Pty Ltd v Vicarr Industries Ltd [1977] HCA 19 ; (1977) 137 CLR 228 at 235. Assistance is derived in applying this test by adopting and adapting the words of Lord Westbury LC in Hill v Evans (1862) 31 LJ Ch 457 at 463; 1A IPR 1 at 6-7, incorporating the relevant circumstances here: "... the antecedent statement [the Bennett Patent] must be such that a person of ordinary knowledge of the subject [Mr Daley or Mr Culley] would at once perceive, understand and be able practically to apply the discovery [the terms of the Bennett Patent, a two-staged system with the second place ending with the award of the prize by the first to attain a pre-determined objective] without the necessity of making further experiments and gaining further information before the invention can be made useful. If something remains to be ascertained which is necessary for the careful application of the discovery, that affords sufficient room for another valid patent." See also Olin Corporation v Super Cartridge Co Pty Ltd [1977] HCA 23 ; (1977) 180 CLR 236 at 261.


case_title: New England Biolabs Inc v F Hoffman-La Roche AG [2004] FCAFC 213 ; (2004) 141 FCR 1


case_outcome: followed

case_text: The appellant lodged an application for review of the decision of the Tribunal with the Federal Magistrates Court on 23 November 2005. Originally he did so on the basis that the s 20 notice was invalid. However, a Full Court of this Court had subsequently held that a cancellation under s 116 of the Migration Act was not dependant on the validity or otherwise of a s 20 notice: see Humayun v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 35 ; (2006) 149 FCR 558. 37 The appellant then submitted an amended application on 23 February 2006. The appellant submitted that even though the decision in question had been made prior to the 8 October 2005 amendments, a requirement for the Tribunal to provide natural justice applied. In his reasons for judgment, Federal Magistrate Phipps found, however, that the cases the appellant relied on in that regard were of no assistance. 38 His Honour also held that even if the appellant had been misled by the warnings given by the Institute, that did not effect the validity of the Tribunal's decision affirming the cancellation of the visa. His Honour held that once the Tribunal came to the conclusion that the appellant had failed to attend 80% of contact hours in term 2, the Tribunal was obliged to affirm the cancellation. 39 The appellant also submitted that the Tribunal had erred in the way it had dealt with the evidence that the education provider's policy was to mark students absent if 15 minutes late. He referred to the Tribunal noting that the Institute had confirmed the policy in a letter and advised that he had been late in June but not marked as absent. He argued that this did not exclude the possibility that he had been marked as absent on other occasions. He contended that there were two points of significance arising from this. First, that the Tribunal had misled itself and, second, that it should have waited for further comments from the Institute or sought further information about attendance. 40 The Federal Magistrate rejected both of these contentions. His Honour held that the Tribunal had been entitled to conclude that the letter meant that the appellant had not been late in April or May. He further held that there was no legal obligation on the Tribunal to make inquiries and that the Tribunal had not breached any requirements for procedural fairness. 41 The appellant has appealed to this Court from the whole of the judgment of the Federal Magistrate on the basis that his Honour: • failed to find that the Tribunal identified the wrong issue, asked the wrong question, relied on irrelevant material or ignored relevant material, and therefore acted without jurisdiction; • failed to find that the s 20 notice was defective and invalid as it did not accurately reflect the situation of the appellant at all material times; • failed to find that the Tribunal misconstrued and misapplied the operation of condition 8202; • failed to find that the Tribunal denied the appellant procedural fairness; • erred in concluding that the errors of law committed by the Tribunal were validated by s 474 of the Migration Act and did not constitute jurisdictional errors warranting review or the grant of prerogative writs; and • erred in dismissing the application. 42 The Minister has conceded that the notice issued by the Institute did not comply with the requirements of s 20 of the ESOS Act and was therefore invalid. However, she has also correctly submitted that the invalidity of a s 20 notice does not lead to the invalidity of a subsequent decision of a delegate of the Minister, or the Tribunal, to cancel a visa pursuant to s 116 of the Migration Act : see Humayun and Minister for Immigration and Multicultural and Indigenous Affairs v Zhou [2006] FCAFC 96 ; (2006) 152 FCR 115. In any event, the Tribunal did not rely on the information contained in the s 20 notice when satisfying itself that the breach of condition 8202 had occurred. Accordingly, for both of those reasons, the appellant's submission that the s 20 notice was defective and invalid is of no consequence in the present appeal.


case_text: Second, it held that once a breach of condition 8202 had been established, s 116(3) and reg 2.43(2)(b) operated to make cancellation of the visa in such circumstances mandatory. The Tribunal held that it had no discretion to set aside the cancellation. In that regard it relied upon the judgments of Minister for Immigration & Multicultural Affairs v Nguyen [2002] FCA 460 and Minister for Immigration & Multicultural Affairs v Hou [2002] FCA 574.


case_title: Minister for Immigration & Multicultural Affairs v Nguyen [2002] FCA 460


case_text: The Minister has conceded that the notice issued by the Institute did not comply with the requirements of s 20 of the ESOS Act and was therefore invalid. However, she has also correctly submitted that the invalidity of a s 20 notice does not lead to the invalidity of a subsequent decision of a delegate of the Minister, or the Tribunal, to cancel a visa pursuant to s 116 of the Migration Act : see Humayun and Minister for Immigration and Multicultural and Indigenous Affairs v Zhou [2006] FCAFC 96 ; (2006) 152 FCR 115. In any event, the Tribunal did not rely on the information contained in the s 20 notice when satisfying itself that the breach of condition 8202 had occurred. Accordingly, for both of those reasons, the appellant's submission that the s 20 notice was defective and invalid is of no consequence in the present appeal. 44 In Zhou , the Full Court of this Court accepted that the amendments could not assist a person whose student visa was cancelled prior to 8 October 2005. It stated (at [44]): "It may be further observed that the Migration Amendment Regulations 2005 (Cth) (No 8) have amended the provisions in Sch 5 relating to student (temporary) (class TU) visas in reg 2.43(2)(b). The effect of the amendment is to import an additional element into the matters which the Minister must consider before cancelling a visa for breach of a condition 8202. That element is that "the non-compliance was not due to exceptional circumstances beyond the visa holder's control". The effect is therefore to place the procedure under s 20 of the Overseas Students Act and s 116 of the Migration Act on a similar footing with respect to consideration of exceptional circumstances. The amendment came into effect on 7 October 2005 and so cannot assist Ms Zhou. It does however serve to address any apparent injustice implicit in the argument of "legal interaction" by reason of the fact that the requirement to attend in response to a s 20 notice afforded an opportunity for service of a s 119 notice. The necessity for this amendment is nevertheless confirmatory of the opinion we have reached that, without it, the relevant and regulatory provisions do not allow us to uphold the reasoning of the federal magistrate." 45 Following this reasoning, I reject the appellant's submission that the Minister and/or the Tribunal had an obligation to consider any "exceptional circumstances" before proceeding to cancel the appellant's visa. 46 The Minister has further submitted that the Federal Magistrate was correct in holding that the Tribunal was entitled to interpret the letter from the Institute setting out its absentee policy in the manner that it did. I agree that the Federal Magistrate was correct in so holding, particularly when regard is had to the circumstances in which the Tribunal drew the conclusions that it did.


case_text: The appellant appeals from the judgment and orders of Federal Magistrate Phipps: see Liyanage v Minister for Immigration and Multicultural Affairs [2006] FMCA 725. His Honour dismissed an application for review of, and relief by way of prerogative writ in respect of, a decision of the Migration Review Tribunal dated 2 November 2005. 3 The 2 November 2005 decision affirmed a decision, made on 25 August 2004, of a delegate of the Minister for Immigration and Multicultural Affairs to cancel the appellant's Student (Temporary) (Class TU) visa, subclass 573. 4 At the time the visa was cancelled, s 116 of the Migration Act relevantly provided: "(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: ... (b) its holder has not complied with a condition of the visa; ... (3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled."


case_text: Last, the Tribunal found that the appellant had in fact breached condition 8202. It applied Pradhan v Minister for Immigration and Multicultural Affairs [1999] FCA 1240 ; (1999) 94 FCR 91 in concluding that the operative version of condition 8202 was that which applied on the date the visa was granted.


case_text: The Tribunal referred to the decisions of Quan v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 764 at [33] - [34] per Jacobson J and Singh v Minister for Immigration and Ethnic Affairs [1994] FCA 1011 , and found that it was required to be satisfied "to a high degree" that the information upon which the visa cancellation was based was correct.


case_title: Singh v Minister for Immigration and Ethnic Affairs [1994] FCA 1011


case_outcome: related

case_text: The background to and nature of the principal proceedings in this matter are set out in a previous judgment given by me in relation to an application by the applicants for an asset preservation order: see KGL Health Pty Limited v Mechtler [2007] FCA 1410. I will not reiterate those matters. 3 The classes of documents presently in dispute are described as follows in a letter from the solicitors for the applicants to the solicitors for Rosanza dated 15 November 2007: '12. draft(s) of the contract by which the freehold was offered for sale and sold, and all other information disclosed to the purchaser and any other interested party; 13. the intended use of the property by the purchaser and any other interested party; 14. any investigations in relation to the property undertaken by your client (or its solicitors and other agents) or by the purchaser and any other interested party (including without limitation requisitions on title and replies); and 15. consideration by your client and its directors of offers to purchase[; and] 16. ... all correspondence and records of communication between your client (or its solicitors and/or other agents) and the purchaser (or its solicitors and/or other agents) concerning the purchase of the property, the intended use of the property and any claims arising by the purchaser after the sale of the property.' 4 Rosanza, by its Further Amended Cross-Claim, alleges various entitlements to damages. The first is an entitlement to damages for lost rent, other outgoings and interest up to and including the date on which the lease of the premises was terminated on 10 May 2007. The second is damages for loss as a result of the cost of restoring and reinstating the premises to a state of good repair. The third is damages for the loss of bargain on the basis that, but for alleged breaches and repudiation of the relevant lease by the applicants, Rosanza would have retained ownership of the premises at least until some time between 12 September 2009 and 2 March 2010, and in that period would have received the benefit of the lease, including rent less expenses. Finally, Rosanza claims for loss in respect of legal and other costs in connection with the default under the lease by the second applicant/first cross-respondent.


case_outcome: cited

case_text: In order to justify further discovery beyond that which is verified by an affidavit of a legal practitioner, generally it needs to be shown that there is some substantial or manifest failure to produce documents. Ordinarily, an affidavit of discovery will be conclusive. Insufficiency of discovery may be shown from the pleadings, from the affidavit or from any other source that constitutes an admission of a discoverable document: see Seven Network Ltd v News Ltd [2005] FCA 915. However, in this case, no such insufficiency has been shown. It is important when framing classes for discovery that the classes of documents sought be shown to be relevant to the dispute. That is a consideration, which my comments at [8] above indicate, which applies to some of the classes in this application. This Court will endeavour to limit discovery so far as possible to ensure that it is not excessive, and that only those documents which are necessary to ensure a fair presentation of a party's case are produced: see O 15 r 15 of the Federal Court Rules and Federal Court Practice Note No. 14. 11 This application for further discovery is dismissed with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 7 March 2008 Counsel for the Applicants: Mr A. Ogborne Solicitor for the Applicants: Bruce Stewart Dimarco Counsel for the Respondents: Mr S. Climpson Solicitor for the Respondents: Bull, Son & Schmidt Date of Hearing: 5 February 2008 Date of Judgment: 7 March 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/273.html


case_text: Section 422B of the Act excludes the operation of common law principles of procedural fairness in proceedings before the Tribunal: Minister for Immigration and Multicultural Affairs v Lat [2006] FCAFC 61 ; (2006) 151 FCR 214; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62. Those authorities establish that Div 4 of Pt 7 of the Act provides a comprehensive procedural code containing detailed provisions for procedural fairness with which the Tribunal must comply, and which excludes any other common law natural justice hearing rule. Consequently, the ground of alleged jurisdictional error argued before the Federal Magistrate could not be sustained.


case_title: SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62


case_text: Counsel for the first respondent opposed the appellant being granted leave to raise those two grounds upon appeal as there are no exceptional circumstances warranting the grant of leave to do so, especially as the appellant was represented by counsel before the Federal Magistrate and has not sought to explain why those grounds were not raised before the Federal Magistrate: see Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543 at [18]; SZDJQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 533 at [32] - [35] . He contended that the appellant should be bound by the conduct of the case before the Federal Magistrate.


case_title: SZDJQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 533


case_text: As the merits of the proposed grounds of appeal are relevant to decide whether leave to appeal should be granted (see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] - [48] ), it is appropriate first to address the proposed grounds of appeal to assess their merits. Realistically, as counsel for the first respondent acknowledged, if those grounds of appeal are likely to result in success on the appeal and the quashing of the decision of the Tribunal, given the significant implications to the appellant of the present decision of the Tribunal which would have him return to Bangladesh, there would be strong reason to allow the proposed grounds of appeal to be pursued: cf SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 3 at [66] ; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51.


case_title: SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 3


case_title: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51


case_outcome: considered

case_title: NBKT v Minister for Immigration and Multicultural Affairs (2006) ALD 333

case_text: In NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 93 ALD 333, Young J (with whom Gyles and Stone JJ agreed), after reviewing a number of authorities concerning the application of s 424A of the Act, said at [59]-[62]: These authorities highlight the importance of giving careful consideration to the nature of the information that is said to fall within s 424A(3)(b) and the circumstances in which it is communicated to, or elicited by, the tribunal. There may be good reasons for requiring that the applicant affirm or actively give specific 'information' for the purposes of the review, in order for the exemption in s 424A(3)(b) to apply. Both SZEEU and NAZY suggest that the exception may not apply where the appellant does no more than affirm the accuracy of a statement which contains many diverse pieces of information. At the same time, the weight of authority indicates that artificial distinctions should not be drawn between information that is provided by an applicant in the course of his evidence-in-chief rather than in answer to questions posed by the Tribunal. In the present case, the relevant information was uncontentious factual material that formed an essential element of the decisions which were under review by the tribunal. The appellant either expressly provided or affirmed the relevant dates in response to basic propositions put by the tribunal at the hearing. The tribunal's questions arose naturally from the appellant's application. In these circumstances, and given the uncontentious factual nature of the information, I consider that the exemption in s 424A(3)(b) applies. The appellant expressly stated the date of her arrival in Australia to the tribunal at the hearing. I do not accept the appellant's argument that s 424A(3)(b) cannot apply because the date was given in response to a question posed by the tribunal. The mere fact that the tribunal elicited a response from the appellant, which confirmed an uncontentious detail of her application, does not render the information incapable of falling within the exemption in s 424A(3)(b). It is not inconsistent with NAZY or SZEEU to hold that the exemption applies in such circumstances, given the nature of the information and the context in which it was communicated. I also find that the appellant 'gave' the date of her arrival in Australia and the approximate date of her protection visa application via her visa application and the written submissions provided to the tribunal by the appellant's adviser. The appellant affirmed that the details of her application were correct. The written submissions contained a statement which expressly referred to the appellant's statement attached to her protection visa application. In that statement, which was dated 17 November 2004, the appellant said that she 'came to Australia on strength of a 457 working visa on 12.3.99'. Thus, for the purposes of s 424A(3)(b) , the information was given in the written submissions: VWBF at [51]. On the basis of that approach, the first respondent contended that such information as the Tribunal relied upon was information given to the Tribunal by the appellant at the hearing so as to fall within the exemption in s 424A(3)(b) to the operation of 424A(1). 30 Clearly, s 424A(3)(b) must be carefully applied according to its terms. It exempts from the operation of s 424A(1) information which the appellant gave to the Tribunal for the purpose of the application to the Tribunal. And the observations of Young J in NBKT [2006] FCAFC 195 ; 93 ALD 333 indicate that the question of fact as to whether particular information has been given to the Tribunal may sometimes be a difficult one, and sometimes the line between giving information to the Tribunal and between adverting in a general way to a collection of material (such as the material presented to the first respondent in support of an application for a protection visa) in a hearing before the Tribunal may be a fine one. Each case must be looked at on its own particular facts. By way of a comparison with the facts in NBKT [2006] FCAFC 195 ; 93 ALD 333, in SZGGD v Minister for Immigration and Multicultural Affairs [2006] FCA 1138 at [69] Jessup J concluded that the fact that that appellant's protection visa application contained a particular explanation for the death of his mother, which differed from that advanced by him at the hearing before the Tribunal, was a part of the reason for the Tribunal affirming the decision under review. The fact that he had conveyed that particular explanation in his protection visa information was accepted to be "information" within the terms of s 424A(1) of the Act and had not been given by that appellant in that case to the Tribunal. Consequently, his Honour concluded that there had been a failure to comply with s 424A(1) of the Act.


case_text: Alternatively, the first respondent contended, albeit perhaps with less enthusiasm, that the appellant before the Tribunal had adopted what he had put in his protection visa application and the accompanying statutory declaration subject to any additional qualifications, so that he "gave" the statutory declaration to the Tribunal for the purposes of his application for review: cf Applicant S301/2003 v Minister for Immigration and Multicultural Affairs [2006] FCAFC 155 at [17] . 36 It is not therefore necessary to consider the first respondent's alternative contention that the appellant, by explaining the circumstances in which the protection visa application and the accompanying statutory declaration had been made, had given to the Tribunal all the contents of the statutory declaration. There is, however, some apparent merit in that contention that he had thereby provided that material to the Tribunal, not as truthful information but as to the fact of having earlier given that information: cf Applicant S301/2003 v Minister for Immigration and Multicultural Affairs [2006] FCAFC 155. 37 The second proposed ground of appeal involves identifying that the appellant did claim to have been persecuted by reason of his membership of a particular social group. The Tribunal acknowledged such a claim, but identified it as a claim of membership of a particular social group, being Buddhist monks. The appellant contends that his relevant social group was those involved in welfare activities for the Buddhist community, that is religious activists and social organisers within that community.


case_text: Clearly, s 424A(3)(b) must be carefully applied according to its terms. It exempts from the operation of s 424A(1) information which the appellant gave to the Tribunal for the purpose of the application to the Tribunal. And the observations of Young J in NBKT [2006] FCAFC 195 ; 93 ALD 333 indicate that the question of fact as to whether particular information has been given to the Tribunal may sometimes be a difficult one, and sometimes the line between giving information to the Tribunal and between adverting in a general way to a collection of material (such as the material presented to the first respondent in support of an application for a protection visa) in a hearing before the Tribunal may be a fine one. Each case must be looked at on its own particular facts. By way of a comparison with the facts in NBKT [2006] FCAFC 195 ; 93 ALD 333, in SZGGD v Minister for Immigration and Multicultural Affairs [2006] FCA 1138 at [69] Jessup J concluded that the fact that that appellant's protection visa application contained a particular explanation for the death of his mother, which differed from that advanced by him at the hearing before the Tribunal, was a part of the reason for the Tribunal affirming the decision under review. The fact that he had conveyed that particular explanation in his protection visa information was accepted to be "information" within the terms of s 424A(1) of the Act and had not been given by that appellant in that case to the Tribunal. Consequently, his Honour concluded that there had been a failure to comply with s 424A(1) of the Act.


case_text: It is clear enough that a failure to address a Convention claim clearly made by a protection visa applicant which gives rise to a well-founded fear of persecution amounts to the Tribunal constructively failing to exercise its jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389; Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at 18-19, [58] .


case_title: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244


case_text: It is clear enough that a failure to address a Convention claim clearly made by a protection visa applicant which gives rise to a well-founded fear of persecution amounts to the Tribunal constructively failing to exercise its jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389; Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at 18-19, [58] . 40 In NABE [2004] FCAFC 263 ; 144 FCR 1 at 18-21, [58] - [63] , the Full Court (Black CJ, French and Selway JJ) discussed the circumstances in which a claim to persecution for a Convention reason must be addressed by the Tribunal. Their Honours said that the Tribunal may be required to consider a claim not expressed by the visa applicant but open on the facts, provided it is squarely raised, that is provided that it is apparent on the face of the material before the Tribunal. They said at 19, [60], that the Tribunal is not obliged to deal with claims which are not articulated and which do not "clearly arise before from the materials it". In that case, no jurisdictional error was found to exist because the putative social group put forward by the appellant was not in respect of a group which was a "substantial clearly articulated argument relying upon established facts". 41 In the submissions, counsel for the appellant referred to several passages in the material before the Tribunal which were said to have identified the nature of the claim, even if not expressly articulated. 42 They were firstly in the appellant's statutory declaration accompanying the protection visa application. (I put aside the fact that the first proposed ground of appeal is premised upon the basis that the document was not provided to the Tribunal by the appellant, and that the appellant asked the Tribunal to place no or little weight on it). It generally refers to the appellant's father in 1994 being involved with religious activities in their home area, and helping other community members, including helping to organise a religious festival which led to a hostile atmosphere between Buddhists and Muslims in the area. It also refers to the appellant from mid 2000 as a Buddhist monk engaging in community activities, and from May 2001 in religious activities in his family region where he attracted the attention of local fundamentalist Muslims. The concluding parts of that statement complains of discrimination against Buddhists generally in Bangladesh, and as he devoted himself to their interests in his family region of him attracting "fierce enmity" from the leaders of the local society. He then asserts having been persecuted "for my faith in Buddhist religion", including "selective harassment of the person as an individual or a member of a group". (That last reference is one of six descriptions of persecution, the others of which do not apparently focus upon the appellant as distinct from other Buddhists. The statutory declaration accompanied the protection visa application, which identified the fear of persecution as being for his religious belief. 45 In my judgment, the second proposed ground of appeal must also fail. Upon analysis of the appellant's claims as presented to the Tribunal, he did not positively identify a claim based other than upon his religious beliefs as a Buddhist monk. Specifically, he did not either expressly, or by the articulation of the material he relied upon, identify separately a social group comprising socially active or politically active Buddhist welfare workers within the Buddhist community. At one point, his migration agent in a submission to the Tribunal describes him as "a social organiser within his community" but there is no identification of a separate and refined social group of the type now asserted: cf NABE 144 FCR at 21, [68]. The fact is, in my view, that no social group of that character was suggested to the Tribunal: cf STCB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 61 ; (2006) 231 ALR 556 at [39] .


case_text: In my judgment, the second proposed ground of appeal must also fail. Upon analysis of the appellant's claims as presented to the Tribunal, he did not positively identify a claim based other than upon his religious beliefs as a Buddhist monk. Specifically, he did not either expressly, or by the articulation of the material he relied upon, identify separately a social group comprising socially active or politically active Buddhist welfare workers within the Buddhist community. At one point, his migration agent in a submission to the Tribunal describes him as "a social organiser within his community" but there is no identification of a separate and refined social group of the type now asserted: cf NABE 144 FCR at 21, [68]. The fact is, in my view, that no social group of that character was suggested to the Tribunal: cf STCB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 61 ; (2006) 231 ALR 556 at [39] .


case_text: Banque Commerciale SA (in liq) v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279 Mason CJ and Gaudron J said (at 286 7): The function of pleadings is to state with sufficient clarity the case that must be met: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) [1916] HCA 81 ; (1916) 22 CLR 490 at 517, per Isaacs and Rich JJ. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities: see, for example, Browne v Dunn (1893) 6 R 67 at 76; Mount Oxide Mines (1916) 22 CLR at 517-518.


case_text: consequences of contempt proceedings are grave, and potentially include fining and imprisonment. In considering the application of the civil standard of proof, Dixon J observed in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 , 361-362, in summary, that: In determining whether I am satisfied on the balance of probabilities that HFAT has proven the facts it needs to prove, I take into consideration the matters required by s 140(2) of the Evidence Act as well as Dixon J's comments in Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336. What are the booking records the subject of HFAT's claim? I understand that it is not seriously in dispute that booking records for HFAT existed or that HFAT had booking records. The dispute in this case is as to the composition and nature of the booking records the subject of this claim. Background I understand that the general position and practice in relation to taking bookings for HFAT tours was as follows: Because of the onset of the "build up" and the monsoon season in northern Australia, the period from approximately November until March each year was off-peak season for tourists. HFAT did not conduct regular tours during this period. However tour bookings were able to be taken at this time in respect of tours for the 2009 tourist season (scheduled to begin around April 2009) by employees of the HFAT business, including Ms Chaloner. A number of tours bookings were recorded by Ms Chaloner and (apparently) Ms Shelley Ratcliffe between October 2008 and the end of January 2009 when Ms Chaloner left HFAT. As I have already noted, no evidence was given by Ms Ratcliffe in these proceedings. Bookings were made with HFAT for tours by tour desks around Australia (in particular Broome and the Kimberley Holidays) on behalf of clients and by individuals directly. Bookings were made by email and telephone. Ms Cummins gave evidence that when individuals made bookings directly with HFAT, they were required to make immediate payment in order for their booking to be confirmed (TS 22 June 2009 p 6 ll 31-36). I have already noted Ms Chaloner's evidence that when an individual customer booked and paid for a tour she would send the customer a confirmation email in respect of the booking and the day of travel. Usually, telephone bookings for HFAT tours were recorded in a hard copy diary acquired by the HFAT business, and an Excel spreadsheet on a computer (operated by Ms Chaloner). The relevant diaries were yearly calendar diaries. Both the hard copy diary and the computer with the Excel spreadsheet were kept at the HFAT office, located at Hangar 5, Broome Airport. Identification of booking records Part A para 7(a)(i) of the Application identifies the booking records sought by the applicant as "the originals and all copies (whether in hard or soft copy) of all and any booking records for forward bookings of tours made by persons who booked tours to Horizontal Falls with the Applicant". During the proceedings however HFAT's definition of the booking records narrowed. In HFAT's written submissions the booking records were more specifically identified as: However in determining an issue on the balance of probabilities, as Dixon J observed in Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences (at 362). As I have already observed, potentially many other people had an opportunity over several months to remove the booking records perhaps inadvertently, perhaps deliberately. There is absolutely no direct evidence before the Court that Mr Rhys Thomas took the booking records from the HFAT office in Hangar 5 at Broome Airport, only hearsay from Ms Bishop as to alleged comments by Ms Chaloner, which Ms Chaloner denies having made. The only basis on which I could find that Mr Rhys Thomas had taken the booking records would be on the grounds of speculation, conjecture, and inference. I am not persuaded on the balance of probabilities, particularly taking into account the material before the Court which I have already discussed, the seriousness of HFAT's allegations, and the gravity of the consequences should Mr Rhys Thomas fail to (or be unable to) comply with an order as sought by HFAT, that Mr Rhys Thomas removed the relevant booking records. Form of Order On the facts of this case HFAT has not substantiated its claims against Mr Rhys Thomas in respect of his alleged removal of HFAT booking records from the HFAT office. It follows that the Application against him so far as concerns Pt A para 7 should be dismissed. While HFAT conceded that there was no basis for an order against Mr Troy Thomas in relation to the relief sought by HFAT pursuant to Pt A para 7 of the Application, HFAT also submitted that: In my view however there is no basis for adjourning the case against Mr Troy Thomas, because: Accordingly, it follows that the appropriate order is to dismiss HFAT's claim against Mr Troy Thomas so far as concerns Pt A para 7 of the Application. Concluding comments


case_text: Ms Chaloner produced evidence that she was suffering severe depression as well as anxiety attacks arising from her concerns about giving evidence in the proceedings. I reject the applicant's submission that her medical condition was "pure poppycock". However as my ruling earlier in these proceedings demonstrated ( Horizontal Falls Adventure Tours Pty Ltd (ACN 108 455 410) v Thomas [2009] FCA 639) I was of the view that, despite these medical conditions, Ms Chaloner would be able to answer questions under cross-examination, and indeed she did so in a direct, detailed and honest manner. Further, I accept Ms Chaloner's evidence as to the mode of taking bookings between October 2008 and January 2009 because it was, and always had been, her job to take bookings for the HFAT business. Indeed commenting in relation to the booking records and Ms Chaloner's practice of entering bookings into an Excel spreadsheet, Ms Cummins conceded: It was her (that is, Ms Chaloner's) system; nobody else really understood it. (TS 22 June 2009 p 8 l 40) I make this observation, noting again the curious absence of any evidence from Ms Shelley Ratcliffe.


case_text: is not a case where the legal issues inherent in claims of detinue, specific restitution, or pursuant to the Income Tax Assessment Act or the Corporations Act , were raised and litigated (contrast Nescor Industries Group Pty Ltd v MIBA Pty Ltd (1997) 150 ALR 633). It does not automatically follow that a claim for an order requiring the respondents to deliver chattels to the applicant introduced those causes of action to be met by the respondents indeed the pleadings equally support a claim for a mandatory injunction, or an order pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) ( Humphries v Halifax Vogel Group Proprietary Limited [2008] FCA 569 ; (2008) 76 IPR 144). Accordingly, even had I made factual findings in favour of HFAT on the issue of whether Mr Rhys Thomas had taken the HFAT booking records, I consider that a decision on the previously undisclosed bases submitted by HFAT after judgment had been reserved would be procedurally unfair.


case_text: its Outline of Submissions in Reply, the respondents protested that to decide the application on one or more of the grounds raised by HFAT in its written submissions would, in the circumstances of the way in which HFAT conducted its case, constitute procedural unfairness as described by the High Court in Kioa v West [1985] HCA 81 ; (1984) 159 CLR 550 at 582-593. In light of the parties' detailed submissions with respect to possible grounds for decision in this case, I make the following observations. I consider that the respondents' submissions in this respect have merit. Nowhere in the application does HFAT plead the tort of detinue, the Income Tax Assessment Act , the Corporations Act or specific restitution. Not once during the course of the hearing were any of these causes of action raised by the solicitor for HFAT. The proceedings were not conducted on the basis that the respondents were required to meet a case in detinue, specific restitution, or based on the Income Tax Assessment Act or the Corporations Act .


case_title: Nescor Industries Group Pty Ltd v MIBA Pty Ltd (1997) 150 ALR 633


case_text: Tribunal accepted that Nepalese police officers could be considered to be members of a class of persons who possess a uniting feature or attribute, and that persons in that class are cognisable as a particular social group: Applicant S v MIMA [2004] HCA 25 ; (2004) 206 ALR 242 at [69] . However, it was not satisfied that there was a real chance that an essential or significant reason for persecution directed towards the appellant was because he was a member of the Nepalese police force or by reason of his imputed political opinion. This was, the Tribunal found, because the sole or dominant motive for the Maoists' targeting of the appellant was the satisfaction of a personal grudge against him and implicitly therefore not by reason of his imputed political opinion. Before the Federal Magistrate the appellant raised three grounds: The second respondent (the Tribunal) committed jurisdictional error by failing to ask itself the correct question, those being: (a) Whether the underlying cause of any revenge sought by the Maoists against the applicant was an opinion held by the appellant or imputed to him by his Maoist foes, that he had an ideological opposition to them. (b) Whether in light of all the facts and evidence that the Tribunal did accept or did not reject, the appellant had a well-founded fear of persecution for a Convention reason. (c) Whether, applying common sense to all the facts of the particular case, the appellant had a well-founded fear of persecution for a Convention reason. The Tribunal committed jurisdictional error in taking an irrelevant consideration into account that being that officers of the state, charged with protecting the state and its people are outside the protection of the Refugees Convention. The Tribunal committed jurisdictional error in its consideration of the issue of state protection in that it failed to consider how effective such protection may be. The Court below held that the first and second grounds were not made out although the third ground was made out. However, the Court refused relief in its discretion based on the finding that the earlier findings regarding the absence of Convention nexus were independent of the findings in respect to state protection and otherwise sustained the decision.


case_text: finding of the Tribunal that the sole or predominant reason for his being targeted by the Maoists was the satisfaction of a personal grudge against him was, so submits the first respondent, a finding of fact which cannot be reviewed: Peiris v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 413 at [18]-[23]; Buultjens v Minister for Immigration & Multicultural Affairs [2001] FCA 1058 at [12] and [13]. The first respondent further submits that the Court should not too readily find error in such a finding of non-satisfaction: NAAH of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 354 at [27] ; NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52 at [27] . To do so, it submits, would involve the Court transgressing into merits review or finding that there was only one reasonable finding open to the Tribunal, being Convention related persecution for reason of political opinion or membership of a particular social group, notwithstanding the lack of evidence to support such an inference. Finally, it contends that there was no evidence that the Maoists in question wanted to harm the appellant because he was an agent of the state and the Court should not reconstruct those claims in a different or more articulate manner than they were put to the Tribunal: S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 203 ALR 112 at [1] ; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [58] .


case_text: ground of appeal was relevantly particularised in this way: Her Honour erred in law by upholding the Tribunal's finding that the sole or dominant motivation for harming the appellant in Sindhupalchak would be for the satisfaction merely of a person grudge against him by the Maoists no matter that the appellant had been a police officer in Nepal engaged in anti-Maoist activities, and in armed combat with them had apprehended a number of their members and had turned them over to the authorities to be dealt with and by so doing failed to apply the reasoning in MIMA v Singh [2002] HCA 7 ; (2002) 209 CLR 533 encapsulated in the dictum of McHugh J that "A decision-maker makes an error of law by assuming that the fact that an act was one of "revenge or retribution" necessarily makes it a "non-political". There is no such dichotomy." In Minister for Immigration and Multicultural Affairs v Singh [2002] HCA 7 ; [2002] 209 CLR 533 the High Court of Australia considered the matter of revenge and whether it may sit within a political context. That case concerned a Sikh of Indian nationality who entered Australia and applied for a protection visa. His application was refused. On an application for review, the Administrative Appeals Tribunal concluded that the applicant was excluded from protection by virtue of Art 1F(b) of the Convention because he had been implicated in serious non-political crimes in India. The applicant gave evidence that he had participated as a member of a political organisation in the killing of a police officer by supplying information and intelligence about the officer's movements to facilitate his killing by other members of the organisation. The Tribunal considered that the crime was non-political because it had been committed by the applicant as an act of revenge or retribution for the torture of a member of the organisation. On appeal, the Full Court held that the Tribunal had erred in law in determining that the suspected crimes were "non-political". It concluded that the Tribunal had proceeded from an artificial antithesis between political action and revenge. That finding was upheld by the majority in the High Court, (Gleeson CJ, with Kirby and Gaudron JJ). In some respects, Singh is analogous to the present matter. Like Singh, on one interpretation, "there was no real suggestion of private purposes or of a personal motivation" on the part of the appellant in his conflict with Maoists in 1998: Singh at [138]. In Singh, the issue was how to characterise whether a crime that targeted a police officer for reasons of revenge was personal or political. In the present case, there is an issue as to how to characterise persecution that targets a police officer for reasons of revenge: personal or political. For the appellant, if the motivation for the persecution was political, and not based on a private grudge, then there is a strong argument that he was targeted for reasons of his actual or imputed political opinion, or for reasons of his membership of a particular social group under Art 1A(2) of the Convention. The crucial link between the two cases is the analysis of motive. In Singh , analysis of motive (including revenge, and the political objectives of an organisation) was essential in characterising a crime. In the present matter, analysis of motive is key, as Art 1A(2) of the Convention requires persecution "for reasons of race, religion, nationality, membership of a particular social group or political opinion". The Federal Magistrate sought to distinguish Singh on the grounds that it concerned perpetrators of "serious non-political crimes" under Art 1F(b) of the Convention. Her Honour, referring to Singh stated at [54]: That case was not concerned with whether a person met the definition of refugee in Article 1A(2), but rather with whether the Administrative Appeals Tribunal had erred in finding that a person was excluded from protection by virtue of Article 1F(b) of the Convention on the basis that there were serious reasons for considering that he had committed " a serious non-political crime ". The High Court was not addressing the notion " for reasons of " in the context of Art 1A(2). [Emphasis added] I do not, for my part, consider that the principles of analysis and characterisation of motives in Singh should be read so as to confine their application only to cases involving consideration of Art 1F(b) of the Convention. In its Statement of Decision and Reasons, the Tribunal recognised that Singh was not directly on point, but cited its authority going to the existence of multiple motives for feared harm: Though [ Singh ] is not directly on point to the matter at hand, the Tribunal accepts that in cases where a significant and essential reason for feared harm is based on at least one of the grounds provided in the Refugees Convention, protection obligations may arise notwithstanding that another significant and essential reason for the harm may have been non-Convention related. I note too that the Guide to Refugee Law in Australia developed and used by the Refugee Review Tribunal and Migration Review Tribunal recognises the relevance of Singh to discussions of refugee status under Art 1A(2) of the Convention: Legal Services, Refugee Review Tribunal, A Guide to Refugee Law in Australia , at 10-33, note 177, http://www.mrt-rrt.gov.au viewed 22 July 2008. While [ Singh ] involved consideration of the concept of "non-political crime" in Article 1F of the Convention, the discussion of "revenge" is equally relevant to the questions of motivation that arise under Article 1A(2). In my opinion, the principles governing the analysis and characterisation of motive, articulated in Singh are an apt analogue in the present case. The question of motive, objectively viewed, should be considered against all the relevant circumstances. These will include, in this context, the objectives and methods of the Maoist insurgents as an organisation: Singh at [22], [46]-[47] and [141]. The Tribunal did not do this. At first blush it might be thought that the Tribunal specifically considered the relevant law, and instructed itself that "revenge is not the antithesis of political struggle, it is one of the most common features": see Singh at [18]. The Tribunal referred to Singh in its reasons in this way: ...the High Court in MIMA v Singh [2002] HCA 7 (7 March 2002), Gleeson CJ, Gaudron, McHugh, Kirby & Callinan JJ, stated inter alia, 'even if a killing occurs in the course of a political struggle, it will not be regarded as an incident of the struggle if the sole or dominant motive is the satisfaction of a personal grudge against the victim; however revenge is not the antithesis of political struggle, it is one of the most common features' (per Gleeson CJ para 18; see also Gaudron J para 44) ... even if the Tribunal accepts the applicant may be targeted for harm in Sindhupalchok by Maoists for reasons of his having been responsible for the arrest (and possible mistreatment) of a number of their colleagues after the abovementioned 1998 incident; based on the evidence provided, the Tribunal is satisfied the sole or dominant motive for harming the applicant in Sindhupalchok would be for the satisfaction of a personal grudge against him. (Emphasis added) The evidence before it, without more, did not support a conclusion that the Maoists had a 'personal grudge' against the appellant. True it was that the Maoists threatened revenge against the appellant as an individual but it was in the context of the longstanding armed struggle between the Maoist insurgents and the State of Nepal. The police force was an agency of the State. The deaths, injuries and subsequent imprisonment of insurgents were the result of a fire fight initiated by a group of Maoists against a group of police officers commanded by the appellant. None of the insurgents was known to the appellant and there is no evidence, apart from his position as the officer in command at the time of the fire fight, that he was known to them. The death threats made against him arose out of that armed clash and its aftermath. Indeed the threats were accompanied by demands that he arrange for the release of the four imprisoned insurgents. Counsel for the first respondent conceded that there was no evidence to warrant a conclusion that the appellant was threatened for reasons of personal animus or private retribution. On its face it is difficult, with respect, to see how these threats could, in the circumstances, be characterised as the result of a personal grudge held against the appellant. Apart from other considerations the threats carried with them a demand for the release of the imprisoned Maoists. Counsel for the first respondent, did not identify any basis in the evidence for such a finding. No rationale exists beyond the fact that the appellant acknowledged in evidence that his fear was related to possible revenge by Maoists. This analysis, it seems to me, points up two things. First, it accords with my own view that the Tribunal's conclusion that the Maoists were motivated by a personal grudge against the appellant was based solely on the appellant's evidence that the motive was revenge for his involvement in the events of 1998. However, that evidence poses but does not answer the question: was the threatened revenge, and the asserted fear of persecution generated by it, by reason of the appellant's membership of the Nepalese police force and/or as a result of actual or imputed political opinion. To admit that revenge was likely to have been the motive does not amount to a concession that the motivation was for the satisfaction of a personal grudge against the appellant. Second, the analysis actually highlights the failure of the Tribunal to consider the methods and objectives of Maoists on the significant question of motive: cf Singh at 546 [22] per Gleeson CJ; at 552 [47] per Gaudron J; at 578-579 [141] per Kirby J. There is no specific consideration in the decision record of the methods used by the Maoists or whether targeting police officers were part of their accepted modus operandi . The Tribunal did not make findings as to whether the Maoists' objective of freeing their imprisoned comrades was consistent with threatening or killing the appellant. The proper characterisation of revenge will depend on the evidence as to the activities of the Maoists and their aims and attitudes toward the State of Nepal involving, in this case, the police force as one of its agencies. That genre of evidence was all but absent in this case. I do not agree. What was said by Gleeson CJ at [19] in Singh on this point is apt: The Tribunal found it unnecessary "to enquire into the political nature . . . of the KLF". The Tribunal said that the political objectives of the KLF had no bearing because this particular killing of a government agent was done "out of retribution". I agree with the conclusion of all four judges of the Federal Court. The reasoning of the Tribunal was legally erroneous, and cannot be explained upon the basis suggested by the appellant. It was not merely a finding of fact related to the particular circumstances of the case. There was no evidence to warrant a conclusion that the police officer was killed for reasons of personal animus or private retribution . On the respondent's account, which the Tribunal evidently accepted, the police officer became a "target" because he had tortured a KLF member. That can be described as a form of vengeance or retribution, but, if it were accepted that one of the political objectives of the KLF was to resist oppression of Sikhs, it is not vengeance or retribution of a kind that is necessarily inconsistent with political action in the circumstances which the respondent claimed existed in India. For the Tribunal to say, even by reference to the facts of the case, that such retribution cannot be political, was wrong. (Emphasis added) Although it acknowledged, by setting out the passage from Singh set out above, that revenge is not the antithesis of political struggle, the Tribunal failed to consider all of the relevant evidence necessary to enable it to find whether indeed the revenge threatened arose from one or both of the Convention reasons relied upon. That failure was, in my opinion, a relevant error of law. I do not consider that the Tribunal properly instructed itself as to the law, that even where revenge is the immediate purpose or motive, that it can nevertheless sit within a political context, sufficient to attract the protection of the Convention. As Kirby J pointed out in connection with the political/personal dichotomy, revenge and personal hatred may be the expression, in a particular case, of a political motive: Singh at [141]. There was an impermissible short-cut in the Tribunal's reasoning, consistent with the observations of Gleeson CJ at [22] and Kirby J at [141]. In substance, the Tribunal implicitly concluded, as occurred in Singh, that vengeance was incompatible with a political motive. This in turn, it appears, led the Tribunal to side-step the question of the political nature of the Maoist insurgents operating in Nepal. In so doing it erred. The conclusion of the Federal Magistrate which is, in effect, to the contrary, at [69], is in my respectful opinion incorrect. Again, contrary to the finding of the Federal Magistrate [71], I do not consider that the Tribunal discharged the necessary evaluation in relation to the reasons why the appellant was targeted and claimed to have a well-founded fear of persecution: Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19 ; (2000) 201 CLR 293 per Kirby J at [69]. I will make orders that: 1. The appeal be allowed. 2. The orders of the Federal Magistrates Court made on 14 December 2007 be set aside. In lieu thereof there be orders that: (a) The matter be remitted to the Refugee Review Tribunal, differently constituted, to be heard and determined according to law. (b) The first respondent pay the applicant's costs to be taxed if not agreed. 4. The first respondent pay the appellant's costs of the appeal to be taxed if not agreed. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 24 July 2008 Counsel for the Appellant: Mr M Newman Solicitor for the Appellant: Newman & Associates Counsel for the First Respondent: Mr J Mitchell Solicitor for the First Respondent: Australian Government Solicitor Date of Hearing: 6 May 2008 Date of Judgment: 24 July 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1090.html


case_title: NAAH of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 354


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


case_title: NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52


case_title: Peiris v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 413


case_title: S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 203 ALR 112


case_text: Mason CJ set out, in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 , characteristics of decisions to which s 5 applies. In particular, his Honour held that (at 336): • Reviewable decisions are decisions "which a statute requires or authorises rather than merely a step taken in the course of reasoning on the way to the making of the ultimate decision"; • Such decisions have "the character or quality of finality, an outcome reflecting something in the nature of a determination of an application, inquiry or dispute..."; and • Acts "done preparatory to the making of a 'decision' are not to be regarded as constituting 'decisions' for, if they were, there would be little, if any, point in providing for judicial review of 'conduct' as well as of a 'decision'."