case_text: The Chief Justice quoted the observations of Dixon J (as he then was) in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 where Sir Owen Dixon said at 91: A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. 11 The present Notices of Motion have to be seen against a background of extensive litigation between the parties to this proceeding, and other entities, in relation to claimed intellectual property rights and entitlements to an invention described as "water meter assemblies". Notwithstanding the complexity of that background, the three motions really turn on whether there is an issue estoppel preventing the applicant from seeking an extension of PP2. If there is no such estoppel, as the applicant asserts, the applicant seeks to rely on an affidavit of Alan Joseph Grieves, which annexes a Deed of Agreement dated 22 October 1996, to argue that, in the light of the terms of that document, the applicant is entitled to the favourable exercise of discretion, having regard, amongst other provisions, to sections 15(1)(a) , (b) and (c), s 28(1)(a), s 33 , s 69 , s 105 and s 138 of the Old Act. Both respondents argue that there is no power to amend the patent request pursuant to s 105 of the Old Act, and even if there were power, there are good reasons, including discretionary considerations, why that power should not be exercised. 12 The respondents contend that the applicant is not entitled to seek an extension of the term of PP2, with the consequences that any amendment to the Statement of Claim in these proceedings would be futile. The applicant's Notice of Motion seeking leave to amend should therefore be dismissed.


case_outcome: considered

case_text: An application for summary dismissal pursuant to O 20 r 2 calls for the caution expressed by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (N.S.W.) [1964] HCA 69 ; [1964] 112 CLR 125, Chief Justice Barwick said at 128-129: The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion.


case_text: QUD 46 of 2000 is an appeal pursuant to s 69(7) of the Patents Act 1990 (Cth) (the Old Act) from the decision of a delegate of the Commissioner of Patents (the Commissioner) delivered on 19 May 2000. Delegate Bruhn refused to grant an extension of Petty Patent No 662284 (PP2) on the grounds that the applicant was not entitled to the grant of PP2. The decision is reported: GS Technology Pty Ltd v Davies Shephard Pty Ltd & Another (2000) 50 IPR 202. The decision of Delegate Bruhn largely followed the reasoning of Cooper J in proceedings which related to an earlier provisional patent, Petty Patent No 645740 (PP1). Both PP1 and PP2 are divisionals of Application No 85236/91. 2 These reasons are concerned with three Notices of Motion filed in the appeal from Delegate Bruhn's decision. 62 The submissions seriously mis-state the position before Delegate Bruhn. The solicitor for the applicant before the delegate had sought leave to adduce further evidence into the proceedings, including material which had been exhibit 24 in the Federal Court proceedings concerning Petty Patent No 645740. Delegate Bruhn noted in his judgment ((2000) 50 IPR 202, 206): By a letter dated 22 July 1999 and received at the Patent Office on 26 July 1999, Mr Abaza for the patentee advised that the request for adducing further evidence was withdrawn, and further advised that the Commissioner could "now proceed without the benefit of the further documents ... or any written or oral submission from my client or on its behalf". 63 At 229, Delegate Bruhn specifically refers to the deed of 22 October 1996. He noted that the deed had not been filed by the patentee in the s 28 proceedings for Petty Patent 662284, and that the patentee did not provide the deed in evidence in response to the invitation by the Commissioner to file any evidence in response to the notifier's original s 28 evidence, nor requested the Commissioner to grant leave for the patentee to adduce the deed as further evidence into the proceedings for Petty Patent No 662284. 64 As to the possible relevance of the deed, Delegate Bruhn said: ... although Mr Abaza's submissions suggest that entitlement matters fall into place given the deed, from a brief perusal of the contents of the deed I do not believe that necessarily follows. In particular the deed does not seem to establish a prima facie case for Stack having entitlement to be granted petty patent No 662284. I do not believe that it is appropriate for me to admit the deed in question into the proceedings on my own motion. The patentee has had ample opportunity to formally seek to adduce the document into the proceedings but has not done so. Accordingly I will not have further regard to this deed.


case_text: Section 160 of the Old Act conferred extensive powers on the Court in relation to appeals from a decision of the delegate concerning the extension of Petty Patent 2. The proceedings are in the nature of a rehearing: Karen Aluminium Corp and Coal and Kaiser Aluminium and Chemical Corporation v Reynolds Metal Co [1969] HCA 7 ; (1960) 120 CLR 136 per Kitto J at 142 143. On the hearing of the appeal, the Court may, amongst other things, admit further evidence and give such judgment or make such order as it thinks fit in all the circumstances. 4 On 16 January 2006, GS Technology Pty Ltd (the applicant or GST) filed and served a Notice of Motion seeking that leave be granted pursuant to O 13 r 2 of the Federal Court Rules to file an Amended Statement of Claim. 5 On 5 December 2005, GSA Industries (Aust) Pty Ltd (the second respondent) filed an Amended Notice of Motion seeking that the proceeding be dismissed pursuant to O 20 r 2 of the Federal Court Rules and that Australian Petty Patent No 662284 be revoked. The Notice of Motion also sought costs of the proceeding and of that Notice of Motion.


case_text: Aldous J summarised the factors relevant to the exercise of the Court's discretion under s 105 in Smith Kline & French Laboratories Ltd v Evans Medical Ltd [1989] 1 FSR 561 at 566: First, the onus to establish that amendment should be allowed is upon the patentee and full disclosure must be made of all relevant matters. If there is a failure to disclose all relevant matters, amendment will be refused. Secondly, amendment will be allowed provided the amendments are permitted under the Act and no circumstances arise which would lead the court to refuse the amendment. Thirdly, it is in the public interest that amendment is sought promptly. Thus, in cases where a patentee delays for an unreasonable period before seeking amendment, it will not be allowed unless the patentee shows reasonable grounds for his delay. Such includes cases where a patentee believed that amendment was not necessary and had reasonable grounds for that belief. Fourthly, a patentee who seeks to obtain an unfair advantage from a patent, which he knows or should have known should be amended, will not be allowed to amend. Such a case is where a patentee threatens an infringer with his unamended patent after he knows or should have known of the need to amend. Fifthly, the court is concerned with the conduct of the patentee and not with the merit of the invention. 68 Ms Helen Bowskill, counsel for the first respondent, emphasises the words " provided the amendments are permitted under the Act and no circumstances arise which would lead the court to refuse the amendment." Counsel also points to the third factor referred to by Aldous J, namely, " ... it is in the public interest that amendment is sought promptly. " 69 M Bowskill submitted that s 105 simply does not empower the Court to remedy a lack of entitlement by amendment of the patent request. It was further submitted that even if there were power, the amendment would not be allowed on the basis that is inconsistent with the findings and declarations made by Cooper J in his Honour's First Set of Reasons. Thirdly, even if it were possible, the amendment should not be allowed as a matter of discretion because of the lengthy delay on the part of the applicant in seeking the amendment. 70 In my view, as earlier indicated, the proposed amendment is inconsistent with the findings and declarations of Cooper J, which I have held constitute an issue estoppel. 71 The research of all counsel has not established any decision in which invalidity of a petty patent on the grounds that a patentee was not entitled to be granted the petty patent has been held to be capable of being remedied by amendment of the patent request under s 105 of the Old Act . 72 Mr Vasta for the applicant points to the instance where Mr Stack had made application No 32815, which " emanated from application of 85236 of 91 ", but before the grant of the patent, " the patent request was changed ... to make the grantee Stack and Grieves. " However, this was no contradictor, nor any consideration to the question of power to make that change.


case_outcome: cited

case_text: A recent discussion of what matters considered in an earlier proceeding can constitute an issue estoppel in later proceedings is to be found in Spassked Pty Ltd v Commissioner of Taxation [2007] FCAFC 205. See also Day v Commissioner of Taxation v Day [2007] FCAFC 193.


case_title: Stack & Anor v Elster Metering Pty Ltd & Ors [2005] HCATrans 445

case_text: Stack and GST made a further application to the High Court for special leave to appeal from the judgment and order of the Full Court of the Federal Court of 4 May 2001, which application was refused on 23 June 2005. ([2005] HCATrans 445). 45 In arguments by the applicant in relation to issue estoppel, focus was given, in large measure, in the provisions of s 15(1)(a)(b)(c) and (d) of the Old Act , which provided: 15. Who may be granted a patent? (1) Subject to this Act , a patent for an invention may only be granted to a person who: (a) is the inventor; or (b) would, on the grant of a patent for the invention, be entitled to have the patent assigned to the person; or (c) derives title to the invention from the inventor or a person mentioned in paragraph (b); or (d) is the legal representative of a deceased person mentioned in paragraph (a), (b) or (c). 46 The Full Court said at [13]: Clearly, s 15 contemplates the grant of a patent only to a person who falls into one of the four specified categories. His Honour found that as Stack was not the inventor, but rather one of two joint inventors, he was not within par 15(1)(a). He had no claim to an assignment upon issue of the patent and so was not within par 15(1)(b). Clearly, the alleged circumstances in which Grieves permitted Stack to apply did not amount to a transfer of title to the invention for the purposes of par 15(1)(c). The evidence suggests only that Grieves was agreeable to Stack making the application. There was no allegation that Stack was the legal representative of any deceased person who was entitled to a patent (par 15(1)(d)). And further at [14]: Thus the question for determination is whether his Honour was correct in concluding that the Act does not authorize the grant of a patent to one of two or more joint inventors. A perusal of the texts suggests that there has been little recent consideration of this point. ... 47 At [28], the Full Court observed: This brief examination of the historical position in England and the United States demonstrates that Cooper J was correct in concluding that Stack was not entitled to a patent for the joint invention of himself and Grieves. Each may have been entitled to a patent over his part (if it was otherwise patentable), while they both may have been entitled to a joint patent over the whole. Neither was solely entitled to a patent over the total invention. It follows that they could not, by arrangement between them, create in Stack an entitlement to a patent, save to the extent that they created a relationship pursuant to which he satisfied either par 15(1)(b) or par 15(1)(c). As we have observed, whatever agreement there was between them did not have that effect. 48 Mr Vasta QC for the appellant asserted that the applicant was estopped, but only in a narrow sense. " What we are estopped from saying is that George Stack was entitled to patent 662284 in his capacity as the inventor, that is, that is under 15(1)(a). That's what the issue which we are estopped from denying. That's it."


case_title: Stack v Brisbane City Council (1999) 47 IPR 525


case_title: Stack v Brisbane City Council [2000] FCA 598

case_text: On 10 May 2000, Cooper J revoked Petty Patent No 655740 and dismissed the Notice of Motion insofar as it sought to reopen the issue of the two applicants' entitlement to Petty Patent No 645740. In his Honour's reasons for dismissing the Notice of Motion, ([2000] FCA 598 (the Second Set of Reasons)), Cooper J said at [19]-[24]): 19 What Stack and GST seek to do is to set aside declarations which, although not yet entered, have taken effect as and from the date of their making as orders of the Court: O 35 r 3. They also seek to set aside on the entitlement issue all findings of fact made on that issue, to re-open their case to tender the evidence on the entitlement issue, which was previously struck out, and to call additional evidence which, on its face, was available at the time of the trial. This they seek to do to overcome matters determined adversely to them in a trial which has concluded and after judgment has been given. In my view, no demonstrable basis for the making of such an order has been made out, or is even attempted to be made out, on the material filed in support of the notice of motion. 20 The decision not to call Grieves and Stack to give evidence, I have no doubt, was a tactical decision taken on the trial of the issues. Stack was present for most, if not all, of the trial. There is no reasonable basis to suggest that Stack and GST and their legal adviser did not understand what was being done and the consequences of not producing the witnesses for cross-examination. This is not an application to re-open before judgment, where the taking of such a decision may not carry so much weight against allowing re-opening: Urban Transport Authority of NSW v Nweiser (1991) 28 NSWLR 471 (CA) at 475-6, 478-479. See also Hindmarsh Medical Clinic v Hindmarsh Family Practice Pty Ltd (1997) 38 IPR 616. 21 In the present case there is no attempt to explain why the evidence now relied upon was not left to the Court on the trial of the issue. Further, Stack and GST seek to retain the benefit of the declarations of validity in declarations 6 and 7 by contending that those issues were found in their favour, and that, having regard to my findings on them, Grieves and Stack would not be subject to cross-examination on those issues. To take such a position smacks of the earlier conduct being a deliberate attempt to deny the cross-claimants an opportunity to cross-examine the inventors on the invalidity issues, and to now seek to retain the benefit of having taken such a course without accepting the consequences which flowed in terms of the entitlement issue. 22 All respondents to the notice of motion oppose all of the relief sought including setting aside declarations 1 to 5 inclusive and permitting Stack and GST to re-open their case. DS and DSQ also submit that if declarations 1 to 5 are set aside, then declarations 6 and 7 should also be set aside so that they too could re-open their case on all issues. 23 The cross-claimants have been forced to conduct the case on the issues tried without the benefit of cross-examining Grieves and Stack as the inventors. Whether or not cross-examination would have assisted them on the other issues is a moot point. However, to set aside all declarations and all findings would involve a substantial waste of time and costs. The parties litigated the issues to judgment on the basis of the evidence before the Court the content of which, was in no small way, determined by the way in which GST and Stack conducted their case at trial. Even assuming that GST and Stack are in a position to pay the costs thrown away if all of the declarations are set aside, and leave is given to all parties to re-open their cases, there is no offer to pay such costs, whether they be with respect to all issues or limited to the issues which arose on the entitlement of Stack and through him GST, to the grant of the petty patent. 24 There must be finality to litigation, unless some good reason is shown to the contrary. In my view, no such reason has been shown. Nor am I persuaded on the material produced in support of the notice of motion that to re-open the trial would necessarily lead to any different result, so far as the entitlement of Stack or GST to the grant of the petty patent is concerned. I decline to set aside any of the declarations made on 15 September 1999. (Emphasis added). 39 The judgment of the Full Federal Court of 4 May 2001 dismissed both appeals from the decisions of Cooper J dated 15 September 1999 and 10 May 2000. The Court noted at [49]: The failure to nominate Grieves in the patent request was not an oversight. Stack and GST have persisted with their claim that the petty patent was validly granted to Stack alone. No Application has been made under s 105 of the Act in any of the pending proceedings to have the Court direct amendment of the patent request and patent so as to add Grieves as a joint patentee. 40 The High Court refused an application for special leave by Stack and GST on 26 June 2002.


case_text: In Stack v Brisbane City Council [2004] FCA 354 (the Third Set of Reasons) Cooper J said at [21] and [22]: For there to arise an issue estoppel binding against Stack and GST it must be shown that: (a) the issue ruled upon was indispensable or fundamental to the ultimate decision: Blair and Perpetual Trustee Co Ltd v Curran [1939] HCA 23 ; (1939) 62 CLR 464 at 531; (b) the judgment is capable of giving rise to an issue estoppel: Administration of the Territory of Papua New Guinea v Guba [1973] HCA 59 ; (1973) 130 CLR 353 at 451; (c) the issues must be the same in each proceeding: Blair v Curran at 510, 532, 541; and (d) the parties to be bound by an issue estoppel were in controversy on the issue in question: Ramsay v Pigram [1968] HCA 34 ; (1968) 118 CLR 271 at 276, 279; Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 at 356-358; 365. A practical test as to whether an issue was indispensable or fundamental to the ultimate decision is whether an appeal lies from a finding in respect of the issue: Murphy v Abi-Saab (1995) 37 NSWLR 280 at 288. In the instant case, each of the declarations was appealed to the Full Court of this Court and special leave to appeal in respect of them was refused by the High Court of Australia. Further, the fact that the proceedings were in respect of preliminary issues does not deny that they were capable of creating issues estoppel binding the parties to the proceedings: Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 at 642.


case_outcome: followed

case_title: Stack v Davis Shephard Pty Ltd [2001] FCA 501 ; (2001) 51 IPR 513

case_text: An appeal to the Full Court of the Federal Court from Cooper J's decision was dismissed: [2001] FCA 501 ; 51 IPR 513. Cooper J, at [44]-[45] of his Honour's First Set of Reasons, and the Full Federal Court on appeal at [31] held that " patentee " in s 28(1)(a) means the original patentee. 32 Cooper J and the Full Court of the Federal Court also held that the subject matter of s 138(3)(a) (revocation of a patent on the ground that the patentee is not entitled to the patent) is the entitlement of the original grantee: see Cooper J in his Honour's First Set of Reasons at [51]-[53] and the Full Court at [34]. 33 In this proceeding, the patentee, at the time of revocation proceedings, is a later registered assignee of the patent. The question of entitlement remains to be determined by reference to the eligibility of the original grantee under s 15 , because the subsequent holder of title to a patent stands in the shoes of the person from whom the title is acquired. As Cooper J noted at [52] of his Honour's First Set of Reasons, an assignee can obtain no better entitlement to the patent than the original grantee. 34 Cooper J said at [52]: ... An original grantee who was not entitled to a grant under s 15 of the Act cannot make good an improper grant by assigning the patent to another person. Therefore although assignment or devolution by law of the patent prior to revocation carries an entitlement to registration as the proprietor of the patent, registration does not cure a defect in the title which renders it liable to revocation because it should never have been granted originally. 35 The question of entitlement for the purpose of a notice under s 28 for extension proceedings under s 69 and revocation proceedings under s 138 ultimately involve the question of the eligibility of Mr Stack under s 15 to the grant of PP2. 36 On 21 October 1999, Stack and GSA filed a Notice of Motion seeking in effect to adduce further evidence and to reopen the issue of the applicant's entitlement to PP1. That evidence included a Deed dated 22 October 1996, which is a document referred to in the proposed Amended Statement of Claim in the present proceeding. 37 The applicants sought to have Alan Joseph Grieves made a respondent to the proceedings and to have the Court order the amendment of the patent, or patent request, under s 105 of the Old Act . 84 Finally, even if it were within power and not the subject of a binding estoppel, to amend the patent as foreshadowed by the applicant in the present matter ought not be allowed having regard to the length of time taken by the applicant to seek the amendment which it has foreshadowed. As the Full Court pointed out, " The failure to nominate Grieves in the patent request was not an oversight. " ([2001] FCA 501, [49]). 85 The applicant has persisted for nearly 10 years to assert that it is entitled to Petty Patent No 662284. Extensive and expensive litigation have been fought and lost on that basis, with the consequence that extensive costs have been incurred by, amongst others, the first and second respondents. It is only in very recent times that the applicant has sought to invoke s 105. Previously, it elected to pursue what it asserted was its own entitlement to Petty Patent No 662284, a course inconsistent with the mooted application under s 105. Stack and Grieves have not sought to assert a claim to Petty Patent No 662284, preferring to sit behind the claims made by the applicant. 86 For all of the above reasons, the foreshadowed amendment pursuant to s 105 ought not be permitted.


case_text: In Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 ; (2004) 146 FCR 10, the Full Court (Emmett, Conti and Selway JJ) said at [36]. The doctrines of res judicata and issue estoppel are founded on the broad rules of public policy expressed in the maxims nemo debet bis vexari pro una et eadem causa ('a person ought not to be vexed twice for one and the same cause') and interest reipublicae ut sit finis litium ('it is in the interests of the State that there be an end to litigation'). It would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court. Also, quite apart from any psychological detriment that might flow from an individual having to undertake litigation of the same issue a second time, the State has an interest in ensuring that, once an issue has been determined according to law and all rights of appeal have been exhausted, that should be an end of the matter. The resources of the community ought not to be expended in the litigation, more than once, of the same issue.


case_text: the Court may only give judgment under O 35A for relief that "the applicant is entitled to on the statement of claim". In Macquarie Bank Ltd v Seagle [2005] FCA 1239 ; (2005) 146 FCR 400 at [24] , Conti J observed that: Counsel for the Bank submitted that so long as each element of the relevant civil wrong involved is properly and discretely pleaded in the statement of claim, the requirement of subr (2)(c)(i) will be satisfied in principle. In light of the evident objectives of the O 35A procedure in providing for a ready and expedient means to dispose of uncontested litigation, I consider that the Bank's submission duly reflects a correct description of the subr (2)(c)(i) requirement. Paragraph 11 of the applicants' amended statement of claim dated 13 May 2008 identifies 21 representations made during the negotiations for the joint venture businesses which are said to be misleading and deceptive conduct in contravention of s 52 of the Act. The prefatory words to [11] read: In the course of the said negotiations in each of the aforesaid cases Hughey and/or Pierce made the following representations and/or caused them to be made and/or were directly or indirectly knowingly involved in such representations being made by [EVP] Holdings and/or [EVP] Recruitment ... It is unclear from the amended statement of claim to whom each representation in [11] of the pleading is said to have been directed; which representations are alleged to have been made by the first respondent; which misrepresentations are alleged to have been made by the second respondent; and which representations are said to have been made by EVP Holdings or EVP Recruitment for which the respondents may be liable as accessories. In relation to the alleged breaches of s 52 of the Act by the second respondent identified in [11] of the amended statement of claim, the elements of the wrongs cannot be said to have been "properly and discretely pleaded". In relation to the second respondent, the allegations in [15] of the amended statement of claim meet the requirements of O 35A r 3(2) as discussed in Macquarie Bank Ltd v Seagle at [24]. Consequently, the power to give relief concerning contraventions of s 52 of the Act is within the Court's powers. Given the second respondent's failure to participate in any way in the proceeding, it is appropriate to exercise the Court's discretion to order relief against the second respondent, for breaches of s 52 identified in [15] of the amended statement of claim. The first respondent The position of the first respondent in relation to the application for default judgment pursuant to O 35A is in contrast to that of the second respondent. The first respondent filed a notice of appearance, a defence to the amended statement of claim and participated in the proceeding through his solicitors until 1 December 2008.


case_text: prior notice of the applicants' intention to seek default judgment was given to the first respondent. No motion was filed with the Court that would have alerted the first respondent to the applicants' intentions. As Wilcox and Gummow JJ observed in Lenjimar Pty Ltd v AGC (Advances) Limited [1990] FCA 520 ; (1990) 27 FCR 388 at 400 in relation to the discretion to dismiss a proceeding for default: it is important that an applicant whose proceeding is under threat of dismissal be made aware of the nature of the alleged default and that there be a finding on that matter. That did not occur in this case. As we have said, the notice of motion failed to state any ground for the proposed order. The appellants were left to divine that from the evidence. Another relevant factor in determining whether to grant default judgment is whether, despite the default, the party "genuinely wishes the matter to go to trial" (see Lenjimar per Wilcox and Gummow JJ at 396). On 25 February 2009, the first respondent informed the Court by email that he would not appear at the trial of the proceedings on 2 March 2009. Nevertheless, the first respondent said that: The purpose of this letter is to advise that I do not have the financial resources to attend the hearing or brief counsel. However, I maintain my defence and if the matter proceeds in my absence as I expect, I request the Plaintiffs be obliged to prove their case against me to the required burden of proof. These statements evince an intention on the part of the first respondent to defend the applicants' claims and for the trial to proceed. In light of the relief sought by the applicants, the lack of notice to the first respondent of the applicants' intention to seek default judgment and the reasons given by the first respondent for the default, I am not satisfied that it is appropriate to give default judgment against the first respondent. It is more appropriate to test whether the evidence supports the claims made by the applicants against the first respondent.


case_outcome: applied

case_text: High Court has noted that s 75B(1)(a) requires that a person said to be involved in a contravention of s 52 is shown to have actual knowledge of the falsity of the representations; see Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at 666-69 per Mason ACJ, Wilson, Deane and Dawson JJ. Their Honours went on to say (at 670) that: There can be no question that a person cannot be knowingly concerned in a contravention unless he has knowledge of the essential facts constituting the contravention ... a person could only properly be said to be a "party to" a contravention if his participation was in the context of knowledge of the essential facts constituting the particular contravention in question. Whilst it is not a contradiction in terms to speak of a person being "party to" something of which he is unaware, some indication is needed to convey such a meaning. There is nothing in the paragraph itself which would point to any conclusion other than that the words "party to" are sued to refer to a participant in the nature of an accessory. Moreover, the wider context of the whole section leads to the same conclusion. We have already indicated why para. (a) requires knowledge. Paragraph (b), which speaks of inducing a contravention by threats, promises or otherwise, and par. (d) which speaks of conspiring with others to effect a contravention, both clearly require intent based upon knowledge ... In our view the proper construction of par. (c) requires a party to a contravention to be an intentional participate, the necessary intent being based upon knowledge of the essential elements of the contravention. The Initial Representations were made in documents provided by the second respondent and others to the first applicant. There is no evidence to show the first respondent prepared or authorised these documents. The Initial Representations were also made during meetings which the first respondent did not attend. There is no evidence to suggest that the first respondent directed or knew what was said at these meetings. No liability on the part of the first respondent under s 75B of the Act arises in relation to these aspects of the Initial Representations. The first respondent attended a meeting with the first applicant on 1 February 2004. None of the Initial Representations were made during this meeting. The first respondent also attended a meeting of "EVP managers and partners" on 3 April 2004. Initial Representation (a) was made during the April 2004 meeting. The evidence, in particular that of Trudee Maxine Mashlan, shows that EVP Holdings and EVP Recruitment at that time were in what can best be described as a precarious financial position and at worst were a short step from insolvency. The first respondent was aware of these facts which rendered the representation that the group has a successful business model and history misleading and deceptive. Accordingly, the first respondent is liable under s 75B of the Act with respect to representation (a) of the Initial Representations. Section 82 of the Act requires the first applicant to have suffered loss caused by the first respondent's conduct in order to receive compensation for loss or damage.


case_text: It is also well established and clear that in making an application for leave to appeal from such a judgment, the applicants must establish that the decision of Scarlett FM is 'attended by sufficient doubt to warrant its being reconsidered by the Full Court.' and must also demonstrate that 'substantial injustice' would result if leave were refused, supposing the decision to be wrong. The orthodoxy of those principles is established in Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 ( 'Décor v Dart' ) and is confirmed in Ogawa v University of Melbourne (No. 2) (2004) FCA 1275. Of course, those principles are consistent with well established principles derived from Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 and also other authorities of the Federal Court of Australia. In examining the decision of Scarlett FM and the analytical exposed reasons published by his Honour in support of the orders, it is clear that his Honour turned his mind in considerable detail to the chronology of events, the principles to be applied in considering the application before him and the underlying merits of the contentions advanced by the appellant in relation to the proceedings before the Tribunal and the contended jurisdictional error on the part of the Tribunal. 10 His Honour looked at the circumstances that led the appellants to miss the hearing and considered the merits of the substantive application. His Honour observed that he would turn his mind to the issue of where there are no prospects of success in the substantive application , reinstatement would be futile and then weighed those considerations in the balance in making the order in question. The application for leave to appeal is not supported by a proper application nor any affidavit material in support of the application which would go to establishing the two essential matters prescribed by Decor v Dart . The only material before the court on the question is the contention recited in the proposed notice of appeal. In supporting the merits, if I can put it that way, of an argument of error of law on the part of Scarlett FM, the female appellant contended that before the Refugee Review Tribunal she could not understand what the Tribunal was talking about or perhaps understand more broadly the proceedings. 11 The appellant also says that she believes she would suffer persecution should she return to the People's Republic of China. Neither of these matters constitute demonstrated error on the part of Scarlett FM and accordingly there is no basis for concluding that his Honour's decision should be reconsidered by the Full Court. Moreover, having regard to his Honour's exposed set of reasons, there is no basis for concluding that substantial injustice would arise should leave not be given. The second limb, in any event, of course, is predicated upon the applicant/proposed appellants, demonstrating that the first limb is made out. Accordingly, the application must necessarily be dismissed and the notice of appeal must necessarily be dismissed. 12 In addition to a consideration of the substance of the application this morning, an application has been made for a direction that the title of the first respondent be changed to "Minister for Immigration and Citizenship" and I make that direction. I make an order that leave to appeal from the decision of Scarlett FM should be refused. I make an order striking out the notice of appeal filed on 18 December 2006 and I make a further order that the appellants pay the first respondent's costs of and incidental to the application. 13 I further order that the quantum of the costs payable by the applicant/appellants to the first respondent be fixed in the sum of $650.00. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate: Dated: 2 March 2007 Solicitor for the Appellant Appellant Self Represented Solicitor for the First Respondent: Clayton Utz Lawyers Date of Hearing: 2 March 2007 Date of Judgment: 2 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/293.html


case_text: It is also well established and clear that in making an application for leave to appeal from such a judgment, the applicants must establish that the decision of Scarlett FM is 'attended by sufficient doubt to warrant its being reconsidered by the Full Court.' and must also demonstrate that 'substantial injustice' would result if leave were refused, supposing the decision to be wrong. The orthodoxy of those principles is established in Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 ( 'Décor v Dart' ) and is confirmed in Ogawa v University of Melbourne (No. 2) (2004) FCA 1275. Of course, those principles are consistent with well established principles derived from Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 and also other authorities of the Federal Court of Australia. In examining the decision of Scarlett FM and the analytical exposed reasons published by his Honour in support of the orders, it is clear that his Honour turned his mind in considerable detail to the chronology of events, the principles to be applied in considering the application before him and the underlying merits of the contentions advanced by the appellant in relation to the proceedings before the Tribunal and the contended jurisdictional error on the part of the Tribunal.


case_title: Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423


case_text: proxy forms are, in my opinion, to be considered and construed as commercial documents. They are, in substance, directions or appointments by a principal to an agent authorising the agent to act on behalf of the principal in a particular way. In such circumstances there is a duty upon the agent (the proxy) to abide by the direction or instruction given by the principal (the shareholder): Whitlam v Australian Securities and Investments Commission [2003] NSWCA 183 ; (2003) 57 NSWLR 559 at 600-601 at par [152]. The Company filed four affidavits sworn by four shareholders in the Company who had completed and lodged proxy forms in which they had appointed the Chairman of the meeting as their proxy but had not otherwise marked any of the "For", "Against" or "Abstain" boxes on the form. Those shareholders said that they did not provide any directions as to how the proxy was to vote and that they appointed the proxy to vote as he saw fit. They said they appointed the Chairman as their proxy expecting that Mr Pursell, Managing Director, was to be Chairman and that they expected at the time they completed the proxies that the Chairman would vote in favour of resolution 1 (the removal of Mr Campbell as a director), against resolutions 4, 5, 6 and 7 (the removal of the current Board) and against resolutions 8, 9, 10 and 11 (the appointment of the alternate board). The shareholders said that at no point of time did they expect, or want, their proxy to vote in favour of all resolutions put forward at the EGM. The secretary of the Company, Mr John Lawrence Neill, said in an affidavit that between 14 and 16 April 2009 he had received 16 letters from shareholders who provided an "open-useable proxy" (that is to say, undirected proxies) to the Chairman and who were concerned that the applicants were submitting that the votes cast as a consequence of these open-useable proxies should be counted as affirmative votes for each of the eleven resolutions and not as cast by the Chairman of the meeting.


case_text: is well settled, in particular, by recent High Court authority, that the meaning of commercial contracts in documents and their proper construction is to be determined objectively, although regard may be had to all the surrounding circumstances known to the relevant parties at the time the document was created and that the subjective belief or understanding of the parties in relation to the document is not relevant or admissible: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 , 461-462; Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165 at 179; Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5 ; (2002) 186 ALR 289 at 292-293; Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144 ; (2006) 156 FCR 1 at 12-13 per Weinberg J, at 22 per Kenny J, at 50 per Lander J.


case_title: Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165


case_title: Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5 ; (2002) 186 ALR 289


case_title: Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144 ; (2006) 156 FCR 1


case_text: The absurdity is said to result in invalidity because no reasonable person could have devised the 2006 transitional provision; it is a fantastic and capricious law. Particular reliance was placed on the observations of Lockhart J as a member of the Full Court in Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd [1993] FCA 45 ; (1993) 40 FCR 381 ( Austral Fisheries ) at 382: Delegated legislation is not invalid on the ground of unreasonableness in the sense that the courts may form a different view as to what is reasonable. Unreasonableness in this branch of the law means unreasonable in the sense that "a merely fantastic and capricious by-law, such as reasonable men could not make in good faith" is bad, because delegated legislation of this kind could not be regarded as an exercise of the power conferred upon the subordinate legislative body making the delegated legislation .... At 401 the other members of the Full Court (Beaumont and Hill JJ) endorsed the primary judge's holding that the provisions under attack were "capricious and irrational, such that no reasonable person could ever have devised" them. 16 The first three steps at [14] are not in dispute. The conclusion in the last step is, and in my view does not follow from those that precede it. Subclause (2) applies only if the assessment mentioned in subclause (1) is carried out and has a particular character. It thus has no operation if subclause (1) does not apply. The 2006 transitional provision does not purport to give subclause (2) any operation beyond the class of visa applications covered by (the existing) subclause (1), namely those made on or after 1 July 2005. A visa application lodged before 1 July 2005 remains unaffected by any part of clause 880.230. 25 The present case is quite unlike Austral Fisheries [1993] FCA 45 ; 40 FCR 381 , where the formula for the allocation of quotas was based on a statistical fallacy which operated to produce such a capricious and irrational result that no reasonable person could have devised it. It is also unlike Li [1999] FCA 1147 ; 94 FCR 219 , where the delegated legislation was inconsistent with the Act itself. That is not the case here. Indeed, little assistance is to be derived from other cases on capriciousness and irrationality. Each depends on its own facts. For the reasons I have sought to express, I do not regard the result in the present case as having either of those characteristics.


case_text: This construction of the provisions accords with the ordinary meaning of the words and produces a sensible result. It is thus to be preferred to that propounded by the appellant, which would produce what she describes as an absurdity, namely that subclause (2) would purport to apply in some cases where it has no work to do for want of any assessment having been required by subclause (1). See, for example, Public Transport Commission (NSW) v J Murray-Moore (NSW) Pty Ltd [1975] HCA 28 ; (1975) 132 CLR 336 at 350 and Widgee Shire Council v Bonney [1907] HCA 11 ; (1907) 4 CLR 977 at 983.


case_title: Widgee Shire Council v Bonney [1907] HCA 11 ; (1907) 4 CLR 977


case_outcome: distinguished

case_text: In this connection the appellant relied on the obiter observations of Gyles J in Li v Minister for Immigration and Multicultural Affairs [1999] FCA 1147 ; (1999) 94 FCR 219 ( Li ). There in question was a regulation deeming documents dispatched in a particular way to have been received at a particular time. At [46] to [47] Gyles J said: [T]he description of the legislation in Austral Fisheries ... is apt to describe the result of applying subregs (1)(a) and (2) of reg 5.03. The result is not simply the possibility of some illogical or strange result depending upon the circumstances. It is the certainty of an absurd result if the notification is posted on the seventh day, as the regulation expressly contemplates. The inevitable result of that state of facts is that the applicant will simply not receive the prescribed number of days in which to make an application for review as required by s 347(1) and reg 4.10. Thus, another way of analysing the matter is to say that the delegated legislation is inconsistent with the legislation, and in particular with s 347(1). ... I cannot accept that in the present context Parliament would intend that delegated legislation may validly contemplate the certainty that the Minister may correctly follow its provisions, yet the applicant will not receive the benefit of the prescribed statutory period of notice. 25 The present case is quite unlike Austral Fisheries [1993] FCA 45 ; 40 FCR 381 , where the formula for the allocation of quotas was based on a statistical fallacy which operated to produce such a capricious and irrational result that no reasonable person could have devised it. It is also unlike Li [1999] FCA 1147 ; 94 FCR 219 , where the delegated legislation was inconsistent with the Act itself. That is not the case here. Indeed, little assistance is to be derived from other cases on capriciousness and irrationality. Each depends on its own facts. For the reasons I have sought to express, I do not regard the result in the present case as having either of those characteristics.


case_text: Gyles J's obiter observations were approved by two members of the Full Court in Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 377 ; (2000) 98 FCR 77 at [49] , where their Honours noted that reg 5.03 could produce the absurd result that the document, if sent on the seventh day after its date, was to be taken to have been received before that could possibly be the case.


case_text: The Minister accepts that the differential results that could arise between two visa applicants whose positions are otherwise the same depending on the luck of the draw is unfortunate. However, he says that this is the inevitable result where the regulation maker wishes promptly to close a loophole in the existing criteria, and that scope for debate as to the consequences of such a measure does not mean that it lacks a rational foundation. Support for this view, which I accept, is provided by the distinction drawn by Starke J in City of Brunswick v Stewart [1941] HCA 7 ; (1941) 65 CLR 88 at 98 - "it is one thing to say that the provision is drastic, and another to affirm that it is so capricious and oppressive that no reasonable mind can justify it".


case_text: It was common ground that when the appellant paid the visa application fee there was no acquisition of property within s 51(xxxi). She paid the fee voluntarily. There was no compulsory acquisition, expropriation or requisition. See Health Insurance Commission v Peverill [1994] HCA 8 ; (1994) 179 CLR 226 at 235, 299 ( Peverill ) and Smith v ANL Ltd [2000] HCA 58 ; (2000) 204 CLR 493 at [128] per Hayne J, with whom McHugh J agreed. 35 In order for the voluntarily paid fee to become an expropriated asset, the challenged provisions must have defeated some right that was acquired by the appellant when she entered into the transaction constituted by the visa application accompanied by the fee. What she thereby obtained was the right to have her application considered and determined according to law. That right is enforceable by public law remedies such as mandamus. It is not a right to a particular outcome. The right to have an application determined according to law is always subject to the power of Parliament and its delegates to change the law. Accordingly there is no right to have an application considered against criteria that exist at the time the application is made. In Peverill 179 CLR at 261, McHugh J quoted with approval the observation of Pitney J in New York Central RR Co v White (1917) 243 US 188 at 198 that "No person has a vested interest in any rule of law entitling him to insist that it shall remain unchanged for his benefit".


case_text: It was common ground that when the appellant paid the visa application fee there was no acquisition of property within s 51(xxxi). She paid the fee voluntarily. There was no compulsory acquisition, expropriation or requisition. See Health Insurance Commission v Peverill [1994] HCA 8 ; (1994) 179 CLR 226 at 235, 299 ( Peverill ) and Smith v ANL Ltd [2000] HCA 58 ; (2000) 204 CLR 493 at [128] per Hayne J, with whom McHugh J agreed.


case_text: The appellant claims that the making of clause 880.230(2) and the 2006 transitional provision changed the character of the fee. It took away any chance of the appellant obtaining the visa, and the value of her access to the visa determination process, for which she had paid the fee, was entirely removed. The amendment, combined with the transitional provision and s 46(1)(ba), turned the payment of the fee into an ex post facto expropriation. Those provisions became laws "with respect to" the acquisition of property. Section 46(1) prescribes the requirements for a "valid visa" for the purposes of other provisions such as s 65. See [27]. One such requirement (par (ba)) is that any visa application charge required by the regulations to be paid at the time of application has been paid. The appellant relied on Mutual Pools and Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 (Mutual Pools ) at 188 as authority that a law can have more than one character. She claimed that there was no reason why a law cannot have different characters in different circumstances. It was said that when the Commonwealth obtains a fee for the provision of a benefit, and later legislation takes away the value of that benefit (in the sense of any prospect of obtaining it), the amount paid is acquired by the Commonwealth other than on just terms. 34 The central question is whether there has been an acquisition of property belonging to the appellant. That arises for decision before one gets to the question canvassed in cases such as Mutual Pools 179 CLR 155 , which is whether the law has the constitutional character of a law with respect to the acquisition of property.


case_text: In order for the voluntarily paid fee to become an expropriated asset, the challenged provisions must have defeated some right that was acquired by the appellant when she entered into the transaction constituted by the visa application accompanied by the fee. What she thereby obtained was the right to have her application considered and determined according to law. That right is enforceable by public law remedies such as mandamus. It is not a right to a particular outcome. The right to have an application determined according to law is always subject to the power of Parliament and its delegates to change the law. Accordingly there is no right to have an application considered against criteria that exist at the time the application is made. In Peverill 179 CLR at 261, McHugh J quoted with approval the observation of Pitney J in New York Central RR Co v White (1917) 243 US 188 at 198 that "No person has a vested interest in any rule of law entitling him to insist that it shall remain unchanged for his benefit".


case_text: respondent further submits that s 255-5, which provides for an express regime of civil recovery but does not extend to amounts arising under s 260-5, is also "a provision to the contrary". This seeks, in effect, to apply the maxim expressio unius est exclusio alterius as an aid to construction. It is an aid which must be used with caution: Houssein v Under Secretary of Industrial Relations and Technology [1982] HCA 2 ; (1982) 148 CLR 88 at 94; Barratt v Howard [1999] FCA 1132 ; (1999) 165 ALR 605 at 615 per Hely J. If applied in this case it would bring about a result which I doubt the Parliament intended: Ainsworth v CJC [1992] HCA 10 ; (1992) 175 CLR 564 at 575. The existence of affirmative provisions elsewhere in the Act does not, in my opinion, override the principle articulated in Mallinson .


case_outcome: discussed

case_text: respondent contends that a dictum in the judgment of the High Court in Bluebottle UK Ltd v Deputy Commissioner of Taxation [2007] HCA 54 ; (2007) 232 CLR 598 referring to s 218 as a "penal" provision, might on one reading be seen as indicating that that section did not give rise to an obligation enforceable by civil proceedings. Bluebottle concerned the scope of ITAA36 s 255 which made a person who had "control" of money belonging to a non-resident liable to pay "the tax due and payable by the non-resident". Section 255 did not, itself, contain any provision characterising the relevant amounts as "debts" due to the Commonwealth. Rather, the liability was described as one in respect of "tax", defined in subs (4) to include the general interest charge. Making a person liable to pay the "tax" due and payable by the non-resident clearly had significance: for example, ITAA36 ss 175 and 177(1) would apply to make the relevant assessment conclusive as to the amount payable, while TAA ss 14ZZM and 14ZZR would govern the recoverability of that amount pending the outcome of any review or appeal against the assessment. The Commissioner argued as the Court understood it that, if not given a relatively broad construction, s 255 would have "little or no work to do" different from that done by s 218. The Court considered that s 255 did have additional work to do, even on a narrower view than that urged by the Commissioner. The Court at [93] articulated the different effects of the two provisions: First, s 255 is directed to a more limited class of tax liabilities than those with which s 218 deals. Section 255 concerns only tax which is or will become due from a non-resident; s 218 is not so limited. Secondly, and perhaps more importantly, s 255 makes the controller of moneys liable for the tax payable by the non-resident (to the extent of the amount that was, or should have been, retained); s 218 is a penal provision and does not permit the Commissioner to recover any of the tax due from the person to whom the notice is given. These differences suffice to distinguish between the two provisions and give each a separate operation in the 1936 Act. (Emphasis added) The references to "tax payable" and "tax due" are significant. I apprehend the Court here was saying no more than that under s 218 the third party was, unlike s 255, not liable to pay the "tax payable". Section 255(1)(c) rendered the "controller" of monies of a non-resident personally liable for the tax payable on behalf of the non-resident. Section 218, by contrast, created a new obligation for payment to the Commissioner of "money due, accruing or (which) may become due" by a person to a taxpayer, albeit the payment of that money by the person to the Commissioner was to be credited against the taxpayer's liability to tax. However, it did not in terms enable the Commissioner to recover from the other person the tax due by the taxpayer. The provisions to which I have referred in the ITAA36 concerning assessments of tax have no immediate application in respect of s 218. This, in my view, is how the distinction between ss 218 and 255 referred to in Bluebottle should be understood. I would expect that had the Court meant that s 218 provided no capacity for the Commissioner to sue for recovery of amounts the subject of a notice other than through criminal proceedings, it would have referred to earlier High Court authority on the subject such as Clyne and particularly the principle explained in Mallinson . Indeed Clyne was applied in Bluebottle in dealing with another issue and Mallinson was also referred to but not on this point. I do not regard Bluebottle as overruling the principle articulated in Mallinson. Bluebottle therefore does not stand in the way of a conclusion that the ITAA36 s 218 permitted the Commissioner to sue in debt for the amount required to be paid pursuant to a notice. Other authority supports this conclusion. It also supports the same conclusion in respect of TAA s 260-5. There is therefore nothing to displace the ordinary rule that, where a statute creates an obligation to pay money, an action in debt will lie to enforce the obligation. The Commissioner, in my opinion, may sue in debt to recover an amount that is required to be paid by a notice under s 260-5, when the time for payment of that amount as specified in s 260-5(5) has arrived. Monies alleged owed by respondent to Mr and Mrs Barnes The loan accounts of Mr and Mrs Barnes with the respondent, at the material dates of 30 June and 22 June respectively, according to the records of the respondent were as follows at least prior to the application of a journal entry in each case amounting to $309,609.31. I will refer to the journal entries later: Mr Barnes' loan account with respondent as at 30 June 2007 (rounded) 1. Balance as at 30 June 2006 $1,035,444 2. Add: Capital introduced 2006/2007 (A/C 50101) 75,491 3. Less: Drawings to 30/06/2007 up to $309,609.31 entry (running balance up to last drawings entry) (A/C 50103) (1,334,810) 4. Less: Drawings, Income Tax up to 30/06/2007 (A/C 50105) (11,892) 5. Balance as at 30/06/2007 before $309,609.31 entry No 1 + No 2 - No 3 - No 4 ($235,767)


case_text: Clyne v Deputy Commissioner of Taxation [1981] HCA 40 ; (1981) 150 CLR 1 , Mason J (Aickin and Wilson JJ agreeing) described s 218 as imposing an obligation on the recipient of a notice to pay money which falls within the statutory description. Brennan J observed that the Commissioner was entitled to insist on compliance and that there was no reason why the Commissioner's right should not be enforced by proceedings other than prosecution under subs (2). No other member of the Court considered this point. When Clyne was decided s 218 did not confer any power on the Court convicting an entity for non-compliance with the notice to pay some or all of the amount in the notice. I do not consider that this affects the proper construction of s 260-5. Brennan J further observed that the statute worked an assignment of the moneys to be paid to the Commissioner as though the taxpayer had charged the moneys otherwise payable to him with payment of his tax liability. The references to "tax payable" and "tax due" are significant. I apprehend the Court here was saying no more than that under s 218 the third party was, unlike s 255, not liable to pay the "tax payable". Section 255(1)(c) rendered the "controller" of monies of a non-resident personally liable for the tax payable on behalf of the non-resident. Section 218, by contrast, created a new obligation for payment to the Commissioner of "money due, accruing or (which) may become due" by a person to a taxpayer, albeit the payment of that money by the person to the Commissioner was to be credited against the taxpayer's liability to tax. However, it did not in terms enable the Commissioner to recover from the other person the tax due by the taxpayer. The provisions to which I have referred in the ITAA36 concerning assessments of tax have no immediate application in respect of s 218. This, in my view, is how the distinction between ss 218 and 255 referred to in Bluebottle should be understood. I would expect that had the Court meant that s 218 provided no capacity for the Commissioner to sue for recovery of amounts the subject of a notice other than through criminal proceedings, it would have referred to earlier High Court authority on the subject such as Clyne and particularly the principle explained in Mallinson . Indeed Clyne was applied in Bluebottle in dealing with another issue and Mallinson was also referred to but not on this point. I do not regard Bluebottle as overruling the principle articulated in Mallinson.


case_outcome: referred to

case_text: general principle was re-affirmed recently by the High Court in Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd [2008] HCA 41 ; (2008) 248 ALR 693 at [51] where it was explained that where legislation creates a duty to pay money, an action in debt is "the appropriate remedy for which the general law provides".


case_text: J of the Supreme Court of New South Wales, referring to that observation, held in Deputy Commissioner of Taxation v Lanstel Pty Ltd (1996) 22 ACSR 314 that the s 218 worked an assignment of the debt so that it became payable to the Commissioner. In doing so his Honour observed: A conclusion that, quite apart from prosecuting a recipient of a notice for an offence, the Commissioner has a legal right to compel the payments to be made to the Commissioner, and to sue for the amount if it is not paid, is left to implication, but the implication is clear. This conclusion was reached despite the then inclusion by s 218(3) of the discretionary power to order payment.


case_title: Houssein v Under Secretary of Industrial Relations and Technology [1982] HCA 2 ; (1982) 148 CLR 88


case_text: Commissioner's primary submission is that each amount, the subject of a notice under s 260- 5 , is recoverable by an action in debt under the principles of the general law as explained by the High Court in the following passage from its unanimous judgment in Mallinson v Scottish Australian Investment Co Ltd [1920] HCA 51 ; (1920) 28 CLR 66: The rule applicable here is stated in Shepherd v Hills as follows, viz, 'Wherever an Act of Parliament creates a duty or obligation to pay money, an action will lie for its recovery, unless the Act contains some provision to the contrary'; and where the amount is liquidated the action of debt is appropriate. The obligation is none the less a debt because the statute gives no particular method of enforcing it. In cases in which the statute contains no express denial of the right to bring an action, the proper course to adopt in order to determine whether it contains 'some provision to the contrary' within the meaning of the rule stated above is to consider whether it appears from the whole purview of the Act that it was the intention of the Legislature that the remedy provided should be a substitute for the right of action which would otherwise exist; and in determining this question it is material to consider whether the obligation imposed by the Act was designed to benefit a particular class of persons .... It is also material to consider whether the provision made by the Act for compelling obedience to its commands is in the nature of a penalty for disobedience or in the nature of compensation to the person whose rights are affected by the failure to perform the obligations imposed by the Act. [The case citations have been omitted]. The respondent argues, applying the Shepherd v Hills proviso adopted in Mallinson , that s 260-20 constitutes a "provision to the contrary", which denies the right to sue for recovery that would otherwise arise by implication. This is because, it submits, s 260-20 provides a sanction for non-compliance with a notice under the criminal law, with power in the criminal court in its discretion to order payment of an appropriate sum to the Commissioner. Section 260-20 relevantly provides: Offence (1) The third party must not fail to comply with the Commissioner's notice. Penalty: 20 penalty units (2) The court may, in addition to imposing a penalty on a person convicted of an offence against subsection (1) in relation to failing to pay an amount under the notice, order the person to pay to the Commissioner an amount not exceeding that amount. As to s 260-20, there is no general principle that the availability of civil remedies is excluded by provision for a criminal sanction with a discretionary power to order payment of monies due. I do not consider that the Parliament intended the criminal sanctions in s 260-20 to be the exclusive means of enforcing a notice. The respondent further submits that s 255-5, which provides for an express regime of civil recovery but does not extend to amounts arising under s 260-5, is also "a provision to the contrary". This seeks, in effect, to apply the maxim expressio unius est exclusio alterius as an aid to construction. It is an aid which must be used with caution: Houssein v Under Secretary of Industrial Relations and Technology [1982] HCA 2 ; (1982) 148 CLR 88 at 94; Barratt v Howard [1999] FCA 1132 ; (1999) 165 ALR 605 at 615 per Hely J. If applied in this case it would bring about a result which I doubt the Parliament intended: Ainsworth v CJC [1992] HCA 10 ; (1992) 175 CLR 564 at 575. The existence of affirmative provisions elsewhere in the Act does not, in my opinion, override the principle articulated in Mallinson . The references to "tax payable" and "tax due" are significant. I apprehend the Court here was saying no more than that under s 218 the third party was, unlike s 255, not liable to pay the "tax payable". Section 255(1)(c) rendered the "controller" of monies of a non-resident personally liable for the tax payable on behalf of the non-resident. Section 218, by contrast, created a new obligation for payment to the Commissioner of "money due, accruing or (which) may become due" by a person to a taxpayer, albeit the payment of that money by the person to the Commissioner was to be credited against the taxpayer's liability to tax. However, it did not in terms enable the Commissioner to recover from the other person the tax due by the taxpayer. The provisions to which I have referred in the ITAA36 concerning assessments of tax have no immediate application in respect of s 218. This, in my view, is how the distinction between ss 218 and 255 referred to in Bluebottle should be understood. I would expect that had the Court meant that s 218 provided no capacity for the Commissioner to sue for recovery of amounts the subject of a notice other than through criminal proceedings, it would have referred to earlier High Court authority on the subject such as Clyne and particularly the principle explained in Mallinson . Indeed Clyne was applied in Bluebottle in dealing with another issue and Mallinson was also referred to but not on this point. I do not regard Bluebottle as overruling the principle articulated in Mallinson.


case_text: administrators contend that the obligations under the Supply Agreements fall within s 443A and seek a direction to that effect. There is an initial question as to whether any liability which ensues would properly be described as a 'debt'. Counsel has properly referred me to the decision of Branson J in Molit (No55) Pty Ltd v Lam Soon Australia Pty Ltd (Administrator Appointed) & Macks (1996) 68 FCR 319 in which a strict instruction of the term 'debt' is adopted, drawing a distinction between a debt and a liability for unliquidated damages in this section. Counsel has pointed out that, in other sections, the words such as 'debt' and 'creditor' have been given a wider construction. The provision for insolvent trading is one example. Another is the construction of s 563A in Sons of Gwalia Ltd v Margaretic [2006] FCAFC 17 ; (2005) 149 FCR 227. There is also a question as to whether the liabilities are 'incurred' by reason of cl 6, at least unless and until there is a surplus to be distributed. Counsel has referred to the decision of the New South Wales Court of Appeal in Hawkins v Bank of China (1992) 26 NSWLR 562 which dealt with whether a relevant debt was incurred when a company entered into a guarantee under which it was obliged to pay a liquidator an amount contingent upon demand following default.


case_title: Molit (No55) Pty Ltd v Lam Soon Australia Pty Ltd (Administrator Appointed) & Macks (1996) 68 FCR 319


case_text: is not necessary for me to decide those interesting questions because, in my opinion, it is clear that any liability which ensues would not be for any of the topics enumerated in s 443A(1). The only possible argument is that the liability would be for services rendered. I cannot view what is involved in cl 6 of the Supply Agreements as incurring a liability for services rendered. In that respect, I would adopt the reasoning of Goldberg J in Re Ansett Australia Ltd and Mentha [2001] FCA 1806 ; (2001) 115 FCR 376 at [45] [46]. (See also Re Spyglass Management Group Pty Ltd (Administrator Appointed) (2004) 51 ACSR 432; (2004) 23 ACLC 28 at [4].) I decline to give the direction sought. The decisions of Goldberg J in Re Ansett Australia Ltd and Mentha [2001] FCA 1806 ; (2001) 115 FCR 376 and of Finkelstein J in Re Spyglass Management Group Pty Ltd (Administrator Appointed) (above) and the orders made by Hely J in Re Henry Walker Eltin Group Ltd (Administrators Appointed) (No 4) [2005] FCA 745 provide support for making the order. Order 2 as sought will be made. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 1 September 2006 Counsel for the Plaintiffs Mr P M Wood Solicitor for the Plaintiffs: Blake Dawson Waldron Date of Hearing: 18 August 2006 Date of Judgment: 1 September 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1201.html


case_text: decisions of Goldberg J in Re Ansett Australia Ltd and Mentha [2001] FCA 1806 ; (2001) 115 FCR 376 and of Finkelstein J in Re Spyglass Management Group Pty Ltd (Administrator Appointed) (above) and the orders made by Hely J in Re Henry Walker Eltin Group Ltd (Administrators Appointed) (No 4) [2005] FCA 745 provide support for making the order. Order 2 as sought will be made. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 1 September 2006 Counsel for the Plaintiffs Mr P M Wood Solicitor for the Plaintiffs: Blake Dawson Waldron Date of Hearing: 18 August 2006 Date of Judgment: 1 September 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1201.html


case_title: Re Spyglass Management Group Pty Ltd (Administrator Appointed) (2004) 51 ACSR 432; (2004) 23 ACLC 28


case_title: Sons of Gwalia Ltd v Margaretic [2006] FCAFC 17 ; (2005) 149 FCR 227


case_text: in the same way as an injunction must be couched in clear and unambiguous language, so must an undertaking. As the learned authors of Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (4 th ed, 2002) at [21-505] say, 'the recipient of it must be placed in a position where he knows exactly what he is obliged to do'. (See also Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79 per French J at 88-89 [26] (' REIWA ')). An undertaking should not be accepted if it is vague and uncertain or if enforcement is likely to prove impossible. This proposition is subject to a narrow qualification. I agree with the point made by French J, albeit in the context of s 86C, that in the context of compliance programmes it is neither practicable nor useful to prescribe with minute particularity the content of such programmes: Australian Competition and Consumer Commission v Virgin Mobile Australia Pty Ltd (No 2) [2002] FCA 1548 at [24] . An order or undertaking which contains objectives to be fulfilled, or aims to be achieved, might be too uncertain to be enforceable, although the problem might be overcome by making the obligation a best or reasonable endeavours obligation: REIWA per French J at 90 [35].


case_title: Australian Competition and Consumer Commission v Virgin Mobile Australia Pty Ltd (No 2) [2002] FCA 1548


case_text: there must be a relevant nexus between the injunction or undertaking and the alleged or established contravening conduct. It is not the case that an injunction or undertaking can only be framed in terms of restraining a repetition of contravening or alleged contravening conduct: Foster . As far as future conduct is concerned, an injunction or undertaking may be in wider terms. The question of what is a relevant nexus between the alleged or established conduct and the proposed order or undertaking has been discussed in the context of orders or undertakings requiring a compliance or educational programme to be implemented. Of course, there is no denying the desirability of an extensive compliance or educational programme, but that is a different issue from the question of the Court's power to order such a programme or to accept an undertaking to implement such a programme. In Australian Competition and Consumer Commission v Z-Tek Computer Pty Ltd (1997) 78 FCR 197 (' Z-Tek '), Merkel J considered the scope of an appropriate order implementing a trade practices compliance programme. His Honour said (at 203): summary, in determining whether an injunction under s 80 is "appropriate" there are, at least, three limitations on the Court's power. the power is confined by reference to the scope and purpose of the TPA and in particular s 80. It is within the scope and purpose of s 80 to grant injunctive relief which is designed to prevent a repetition of the conduct for which the relief is sought. there is a contextual limitation within s 80 itself. As the jurisdiction to grant an injunction is enlivened by an alleged or actual contravention of a provision of Pt IV , IVA or V of the TPA, there must be a sufficient nexus or relationship between the contravention and the injunction granted. It is that nexus or relationship that enables determination by the Court of whether the injunction sought is "appropriate". there is the constitutional limitation which requires that the injunction granted be related to the case or controversy the subject of the proceeding.' A little later, his Honour said (at 205): trade practices compliance program agreed to relates to the TPA generally rather than to the specific provisions in Pt V which are alleged to have been contravened by Z-Tek. It was contended by counsel for the ACCC that the program was "appropriate" because it arose as a result of a breach of the TPA. In my view the contention is based on an unwarranted and excessively broad view of s 80. The jurisdiction to make orders under s 80 only arises as a result of advertising and representations by Z-Tek which are alleged to have contravened ss 52 , 53 (e) and 53C of the TPA. As the order is sought under s 80(1AA) I do not have to be satisfied that the conduct contravened the particular provisions of the TPA. Nevertheless, I must determine whether the orders are "appropriate". the reasons discussed earlier any order requiring the implementation of a trade practices compliance program should be one which has a sufficient nexus or relationship to the conduct alleged to constitute a breach of a particular provision of the TPA. Given that the orders are sought by consent I am prepared to take a broad view of the conduct which may fairly be described as misleading or deceptive advertising and the making of representations in contravention of ss 52 , 53 (e) and 53C of the TPA. The compliance program, which the Court may order, should be no wider than one which is designed to prevent repetition of that conduct. orders sought require a compliance program in respect of all parts of the TPA which will include, for example, Pt IV and other parts which have no connection whatsoever with the alleged conduct giving rise to the case or controversy in the Court. In my view it is not appropriate to make orders which require a compliance program which relates to conduct other than the alleged contravening conduct as characterised by the Court.' The comments of Merkel J (at 203) were referred to in Foster . The Full Court did not say anything to suggest that they did not agree with his observations. The conclusions of Mr Johnson are generally favourable to Auspine in terms of the effectiveness of its trade practices compliance programme. However, in the course of his report Mr Johnson makes a number of recommendations, and those recommendations are the subject of the undertaking. They are as follows: Auspine may wish to consider the development of short, targeted information sheets that could be made available to staff as relevant (eg restrictive trade practices issues, consumer protections issues). These would be more likely to be read and referred to by staff than the longer manuals and policies that are currently available. It may also benefit Auspine to engage in a process (eg regular e-mails, notices or short regular training sessions for staff) which are designed to raise staff awareness of their everyday trade practices obligations. ... That Auspine, in consultation with its current Company Secretary and Legal Counsel review whether any additional support or resources are required to effectively perform the role of Compliance Manager. ... Auspine may wish to consider strengthening its program by arranging regular "reminder" sessions for staff and business managers on how trade practices issues can be identified and referred. For example, as resources permit, Auspine's Legal Counsel may be able to provide regular brief presentations at various Business Unit meetings within Auspine on current trade practices related matters that may have an impact on Auspine. This will also allow that person to "touch base" with staff and keep trade practices compliance current in the minds of staff in between the planned biannual training sessions. ... If training is to be rolled out to Auspine staff every two years, steps should be taken during that time to ensure that staff remain aware of current trade practices issues and any changes to the legislation. Auspine may wish to consider short, regular trade practices "information" sessions that could be conducted for targeted staff on topics of relevance to Auspine's operations. This will assist Auspine by reducing the time between training sessions, ensuring more targeted training is conducted while minimising disruption to everyday duties of staff and general business operations of Auspine. ... Auspine may wish to strengthen the Program by taking steps to remind staff on a regular basis of the trade practices risks that are relevant to their everyday operations. This could be done by way of targeted brief information sessions for groups of staff or regular presentations by Auspine's Legal Counsel at Business Unit or staff meetings.' It seems to me that there are two difficulties with this undertaking. The first difficulty is that the compliance programme to which the undertaking relates goes beyond the provisions of ss 45 and 45A of the Act and indeed the provisions in Part IV of the Act ( Z-Tek , REIWA ). This difficulty can be overcome by linking the recommendations to the provisions in Part IV of the Act. The second difficulty relates to the nature of the recommendations. Is it within power or appropriate to impose nothing more than an obligation to consider doing something? Counsel for the Commission said that it was, likening the obligation to that placed on the holder of a power to appoint property of a testator or settlor to third parties. I am prepared to accept that in the circumstances of this case it is within power and appropriate to impose an obligation (or accept an undertaking) requiring Auspine to consider doing something. The undertaking is proffered as part of a commercial settlement. Auspine is a large organisation which has a detailed trade practices compliance programme and an obvious interest in improving the same. The difficulty with some of the recommendations set out above is that they do not even place an obligation on Auspine to consider taking a particular course of action. I would not accept an undertaking in such terms. This particular problem can be overcome by making the obligation to consider mandatory. The fourth undertaking is proffered by Bone Timber and JAG Timber and is in the following terms: undertaking given to the Court by each of the Third and Fifth Respondents that it will implement a Trade Practices Corporate Compliance Program in accordance with the terms of Annexure 1 hereto.' There are difficulties with this undertaking which arise from the terms of the programme referred to in the undertaking. To understand these difficulties, it is necessary to set out in full the terms of the programme: The Respondent shall appoint a Trade Practices Compliance Officer to be responsible for the implementation of the Program. The Program will be implemented within two calendar months of this Undertaking. The Respondent shall ensure that The Trade Practices Compliance Officer receives training in trade practices law. The Respondent will ensure that the Program, including processes which the Respondent intends to implement in order to comply with the Program, are approved by an independent external consultant with appropriate knowledge of trade practices law prior to implementation. The Respondent shall require the Trade Practices Compliance Officer to review: The contents of any media and material containing training or operational information for its staff to ensure that it adequately addresses and informs about: restrictive trade practices proscribed by Part IV of the Trade Practices 1974 [sic] ('the TPA'), including in particular price fixing and anti-competitive collusion in the context of contracts, arrangements and understandings; and 4.1.2 consequences of breaching the TPA. Training and operating procedures for its staff involved in any way in quoting or providing takeoffs for supply of timber, or in organizing, attending or otherwise participating in any meetings with competitors concerning matters relevant to the trading activities of such persons, to ensure that its staff are adequately informed and advised about: restrictive trade practices proscribed by the TPA, including in particular price fixing and anti-competitive collusion in the context of contracts, arrangements and understandings; not contravening the provisions of Part IV of the TPA; and 4.2.3 consequences of breaching the TPA. The Respondent shall require the Trade Practices Compliance Officer to maintain a documentary record of the compliance review of: The Respondent's training and operational media and material; The Respondent's training and operating procedures for staff involved in any way quoting or providing takeoffs for supply of timber, or in organizing, attending or otherwise participating in any meetings with competitors concerning matters relevant to the trading activities of such persons. Such documentary record will include: (i) a description of the media and materials; (ii) a copy of the materials; written advice that the relevant media and materials have been reviewed and cleared by the Trade Practices Compliance Officer (including the date on which they were reviewed); written advice of any improvements that could be made to reduce the risks of possible contraventions of the TPA that were identified by the Trade Practices Compliance Officer and the action taken to implement those improvements. The Respondent shall ensure that the documentary records of the compliance reviews are available to the Australian Competition and Consumer Commission to be reviewed from time to time. Such records are to be available from one week after the date of review for a period of three years after that date. Such records are to be provided to the Australian Competition and Consumer Commission within five working days of a written request for those records. The Respondent shall ensure that an independent external consultant with expertise in trade practices law conducts training on the Program including in relation to price fixing and anti-competitive collusion in contravention of Section 45 of the TPA, to the Respondent's staff on six occasions during the three year period following the making of this Undertaking. The first of these training programs is to be completed within three calendar months of this Undertaking and the remaining five on a six monthly basis thereafter. The Respondent shall retain an independent external consultant with expertise in trade practices law to provide the Australian Competition and Consumer Commission with three annual reports (being at 12 months, 24 months and 36 months following the making of this Undertaking) on the Respondent's compliance with the Program, and these reports shall be provided to the Australian Competition and Consumer Commission within: 13 months of this Undertaking; 25 months of this Undertaking; and 37 months of this Undertaking respectively. The annual reports shall include the review and reporting of: The Respondent's adherence to the Program; The implementation of the Program, its consistency with Australian Standard AS-3806 and the achievement of its objectives over the preceding twelve months; and Any recommended changes to the Program that may be necessary to ensure achievement of its objectives.' The principal problem is that the major aspects of the programme are not defined. The formulation of the programme is left to the respondent and the external consultant (clause 3). The suggestion is that it is up to an independent external consultant to determine if whatever programme is formulated is appropriate and is implemented from time to time (clauses 8 and 9). As I have said, I do not see a difficulty with a requirement that an independent external consultant review the question of compliance with a programme providing the major aspects of the programme are defined and providing the question of whether there has been a breach of the programme is not made to turn solely on the consultant's opinion. A further difficulty is that there is a suggestion (see clause 9(c)) that the programme may be changed from time to time.


case_text: a question which has arisen in the cases, and which arises in this case, is the Court's power to make an order or accept an undertaking requiring an external audit of a compliance programme or, alternatively, the appropriateness of so doing. It seems that such an order may not be made under s 86C: BMW Australia Ltd v Australian Competition and Consumer Commission (2004) 207 ALR 452 (Gray, Goldberg and Weinberg JJ) at 468 [51]. It is important to have a clear understanding of what is meant by an external audit of a compliance programme. In my opinion, an order or undertaking which leaves the definition of the major obligations undertaken by a respondent to a third party or which makes the question of whether there has been a breach turn on the assessment or opinion of a third party is beyond power, or at the very least inappropriate. A court should not grant an injunction leaving the scope of the injunction to be determined by a third party and should not accept an undertaking to similar effect. Such an injunction or undertaking would not be in clear and unambiguous terms and it would involve an impermissible delegation of the Court's power to formulate the terms of the order and to determine the question of breach. None of this is to say that an order or undertaking might not include a provision for an external audit providing the major obligations are defined and it is clear that the question of breach is for the court to determine, having regard to the facts and the terms of the order or undertaking. I turn now to consider the particular undertakings proffered in this case. The first undertaking which is proffered by the corporate respondents is in the following terms: of Auspine Limited, Geo J Bone & Sons Pty Ltd and JAG Timber Products Pty Ltd, for a period of 5 years, whether by its directors, servants or agents or otherwise howsoever, undertakes to the Court to refrain from: making or attempting to make any contract or arrangement, or arriving at or attempting to arrive at any understanding, with a competitor or competitors containing a provision or provisions that:- any or all of them would no longer provide estimating services without charge but would pass on to the customer any charges incurred at cost; any or all of them would procure or attempt to procure or induce other competitors to make an arrangement or arrangements, alternatively to arrive at an understanding or understandings, containing a provision to the same effect, but including such other competitors or some of them, as the provision set out in subparagraph (i) above; or (iii) any or all of them would charge customers for estimating services at a particular price or particular prices or in accordance with or by reference to a particular mechanism, process or procedure by which the price or prices of estimating services to be charged by all or any of them would be fixed or controlled. giving effect to any such contract, arrangement or understanding with a competitor or competitors containing a provision or provisions that:- any or all of them would no longer provide estimating services without charge but would pass on to the customer any charges incurred at cost; any or all of them would procure or attempt to procure or induce other competitors to make an arrangement or arrangements, alternatively to arrive at an understanding or understandings, containing a provision to the same effect, but including such other competitors or some of them, as the provision set out in subparagraph (i) above; or any or all of them would charge customers for estimating services at a particular price or particular prices or in accordance with or by reference to a particular mechanism, process or procedure by which the price or prices of estimating services to be charged by all or any of them would be fixed or controlled.'


case_text: the Court's power to grant an injunction in the case of a contravention of the Act is contained exclusively in s 80 of the Act and no reliance can be placed on s 23 of the Federal Court of Australia Act 1976 (Cth): Thomson per Gibbs CJ, Stephen, Mason and Wilson JJ at 161-162; Foster v Australian Competition and Consumer Commission [2006] FCAFC 21 ; (2006) 149 FCR 135 (Ryan, Finn and Allsop JJ) at 145 [22] (' Foster' ). Fourthly, there must be a relevant nexus between the injunction or undertaking and the alleged or established contravening conduct. It is not the case that an injunction or undertaking can only be framed in terms of restraining a repetition of contravening or alleged contravening conduct: Foster . As far as future conduct is concerned, an injunction or undertaking may be in wider terms. The question of what is a relevant nexus between the alleged or established conduct and the proposed order or undertaking has been discussed in the context of orders or undertakings requiring a compliance or educational programme to be implemented. Of course, there is no denying the desirability of an extensive compliance or educational programme, but that is a different issue from the question of the Court's power to order such a programme or to accept an undertaking to implement such a programme. In Australian Competition and Consumer Commission v Z-Tek Computer Pty Ltd (1997) 78 FCR 197 (' Z-Tek '), Merkel J considered the scope of an appropriate order implementing a trade practices compliance programme. His Honour said (at 203): summary, in determining whether an injunction under s 80 is "appropriate" there are, at least, three limitations on the Court's power. the power is confined by reference to the scope and purpose of the TPA and in particular s 80. It is within the scope and purpose of s 80 to grant injunctive relief which is designed to prevent a repetition of the conduct for which the relief is sought. there is a contextual limitation within s 80 itself. As the jurisdiction to grant an injunction is enlivened by an alleged or actual contravention of a provision of Pt IV , IVA or V of the TPA, there must be a sufficient nexus or relationship between the contravention and the injunction granted. It is that nexus or relationship that enables determination by the Court of whether the injunction sought is "appropriate". there is the constitutional limitation which requires that the injunction granted be related to the case or controversy the subject of the proceeding.' A little later, his Honour said (at 205): trade practices compliance program agreed to relates to the TPA generally rather than to the specific provisions in Pt V which are alleged to have been contravened by Z-Tek. It was contended by counsel for the ACCC that the program was "appropriate" because it arose as a result of a breach of the TPA. In my view the contention is based on an unwarranted and excessively broad view of s 80. The jurisdiction to make orders under s 80 only arises as a result of advertising and representations by Z-Tek which are alleged to have contravened ss 52 , 53 (e) and 53C of the TPA. As the order is sought under s 80(1AA) I do not have to be satisfied that the conduct contravened the particular provisions of the TPA. Nevertheless, I must determine whether the orders are "appropriate". the reasons discussed earlier any order requiring the implementation of a trade practices compliance program should be one which has a sufficient nexus or relationship to the conduct alleged to constitute a breach of a particular provision of the TPA. Given that the orders are sought by consent I am prepared to take a broad view of the conduct which may fairly be described as misleading or deceptive advertising and the making of representations in contravention of ss 52 , 53 (e) and 53C of the TPA. The compliance program, which the Court may order, should be no wider than one which is designed to prevent repetition of that conduct. orders sought require a compliance program in respect of all parts of the TPA which will include, for example, Pt IV and other parts which have no connection whatsoever with the alleged conduct giving rise to the case or controversy in the Court. In my view it is not appropriate to make orders which require a compliance program which relates to conduct other than the alleged contravening conduct as characterised by the Court.' The comments of Merkel J (at 203) were referred to in Foster . The Full Court did not say anything to suggest that they did not agree with his observations.


case_text: is an undertaking which restrains conduct which would be a contravention of the Act and, as it is within the power of the Court to grant an injunction in similar terms, it is within the power of the Court to accept the undertaking. I have the power to accept the first undertaking and I think that it would be appropriate to do so. The undertaking has been proffered as part of a negotiated settlement of what is a complex dispute. Unless there was good reason not to do so, and there is no such reason here, then, providing the adoption of the settlement is within power, I should give effect to the settlement reached between the parties. All the corporate respondents were legally represented as was the Commission and I see no reason why it would not be appropriate to accept the first undertaking: N W Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 per Burchett and Kiefel JJ at 291; REIWA per French J at 87 [20]-[21]. The second undertaking is proffered by the three individual respondents and is in the following terms: of Mr Frank McDonald, Mr Andrew Bone and Mr Gary Daniel, for a period of 5 years, undertakes to the Court to refrain from inducing or attempting to induce or being directly or indirectly, knowingly concerned in, or party to the making of, or the arriving at, or the giving effect to, any such contract, arrangement or understanding between a corporation and one or more of its competitors which contains a provision or provisions that: any or all of them would no longer provide estimating services without charge but would pass on to the customer any charges incurred at cost; any or all of them would procure or attempt to procure or induce other competitors to make arrangement or arrangements, alternatively to arrive at an understanding or understandings, containing a provision to the same effect, but including such other competitors or some of them, as the provision set out in sub-paragraph (i) above; or any or all of them would charge customers for estimating services at a particular price or particular prices or in accordance with or by reference to a particular mechanism, process or procedure by which the price or prices of estimating services to be charged by all or any of them would be fixed or controlled.' As with the first undertaking, I have the power to accept the undertaking and I think it would be appropriate to do so. The individual respondents, other than Mr McDonald, had legal representation, and Mr McDonald told me that he had received legal advice.