case_outcome: followed

case_text: In considering the agreement, I have had the great benefit of the reasons of Justice Cooper in the "Wellesley Sea Claim" ( The Lardil Peoples v State of Queensland [2004] FCA 298) ( Lardil ) and a body of evidence in the form of expert reports and affidavits filed in the Lardil proceedings. Very significant portions of that evidence are relevant to this application. In particular, in Lardil , some 58 affidavits were filed and 52 witnesses, representing members of Lardil, Yangkaal, Gangalidda and Kaiadilt claim groups, gave evidence on Mornington Island. A number of reports from expert witnesses concerning the history and genealogies of the Lardil, Yangkaal, Kaiadilt, and Gangalidda Peoples were filed. This evidence (the "Connection Material"), also filed in the present application, was subject to judicial consideration by Cooper J, and a significant part of it was the subject of cross-examination. Given that the composition of the claim group in these proceedings is the same as before Cooper J, and having regard to the power in section 86 of the Act to take into account evidence in other proceedings, it is appropriate that, in the present application, the Court also has regard to that evidence in analysing the history of the claim groups and their connection with the land. 13 In Lardil, Justice Cooper set out, at [20]-[53], a comprehensive history of European contact with the northern part of Australia, the Gulf of Carpentaria and, more specifically, the land and waters the subject of this application. The submissions of the Applicant filed in these proceedings have been helpful in directing me to the relevant historical and anthropological material that goes to establishing the ethnography of the claim group, since first contact, and of their connection to the Determination Area. The following summary of European contact and subsequent settlement in the area as set out in the submissions, gives an understanding of the society that existed at first contact and the changes to that society as a consequence of European contact: From the Connection Material, the Court can be satisfied that, as at the date of sovereignty, the proposed Determination Area was occupied by Aboriginal People. As early as November 1802, Matthew Flinders observed that the islands which he named the Wellesley Islands were inhabited by Indigenous people. As such, Flinders was the first European to document contact with the Indigenous people of the Wellesley Islands. In November 1802 Flinders stayed over a month in the vicinity of the Wellesley Islands to undertake repairs to his vessel, the Investigator, and to replenish supplies of water and wood. He observed 'natives' on Bentinck Island, Sweers Island, Allen Island, Horseshoe Island, and Mornington Island. He observed spiral shells used as water containers, and midden material comprising shells and turtle bones on Horseshoe Island. He also observed sleeping hollows on Bentinck Island, and wells, midden material and human remains on Sweers Island. Later explorers confirmed the presence of Indigenous people on the Wellesley Islands and adjoining coastal mainland. In 1841 John Lort Stokes in the Beagle anchored in Investigator Road which is the body of water between Bentinck Island and Sweers Island. He went ashore at Sweers Island and found the well made by Flinders' men. Stokes reported 'natives' on Sweers Island, and on Allen Island. He observed "native skulls" and long bones on Sweers Island, and a well at Bayley Point on the mainland. The next serious maritime investigation of the southern Gulf was undertaken by Captain C Pennefather in 1880 on the Pearl. Pennefather was instructed to report on and survey the waters surrounding Sweers and Bentinck Islands. He landed on Sweers and Allen Islands and examined Indigenous fish traps near Point Parker. In the mid 1840s exploration of the mainland adjacent to the Wellesley Islands took place. Of particular significance was the 1844-1845 expedition lead by Ludwig Leichhardt, which travelled along the southern part of the Gulf of Carpentaria. On the way, Leichhardt recorded camps, tracks and fish traps of Aboriginal people. As a result of the observations of Leichhardt and Stokes, impetus grew for the development of the pastoral industry in the southern Gulf. Queensland became a separate colony in December 1859, and soon after the first, albeit short-lived, wave of pastoral development in the Burke district took place. In 1865 pastoralist JG Macdonald established the settlement of Burketown on the Albert River, twelve miles inland from the Gulf of Carpentaria. Sever fever inflicted the residents, and the fever victims were evacuated to Sweers Island. The majority of the population of Burketown was relocated in 1866 to Sweers Island where a township called Carnarvon was established. With the establishment of a permanent residence of European people at Carnarvon on Sweers Island between 1866 and 1873, the Kaiadilt traditional owners were forced to retreat to Bentinck Island, but still visited their country on Sweers Island. William Landsborough, police magistrate, gave accounts of increasingly tense encounters with them on Sweers, Fowler and Bentinck Islands in 1866. The relationship between the Kaiadilt and the European population of Sweers Island deteriorated with the kidnappings of Aboriginal children in 1870, and a violent encounter between the Kaiadilt and government officers in October 1872. Two Kaiadilt men were killed after their group refused to leave Sweers Island while fishing and gathering food there. Historical evidence indicates that the Kaiadilt similarly resisted attempts by the European outsiders to land on Bentinck Island. By mid 1870 the population of Carnarvon had declined to ten residents with the emergence of Normanton as the centre of regional administration. Shortly after, in 1872, the settlement of Carnarvon was abandoned just six years after it was established. The departure of Europeans from Carnarvon allowed the Kaiadilt to return to Sweers Island without interference. When Captain Pennefather in the Pearl landed on Sweers Island in 1880 he recorded seeing "a large mob of natives, who did not allow us to approach them": the Kaiadilt had reclaimed their island. With the revival of the pastoral industry in the Burke District in the early 1880s, the town of Burketown developed, leading to the Indigenous population of town camps growing to more than 200 by the late 1890s. Unlike the Kaiadilt people's intense period of contact with Europeans between 1866 and 1872, the Indigenous inhabitants of Mornington Island and other islands of the Wellesley Group experienced minimal interaction with outsiders during the 19th century. In 1898 the Aboriginal Protection and restriction of the Sale of Opium Act (Qld) was enacted. Dr Walter Roth was appointed the Northern Protector of Aboriginals. In 1901 Dr Roth undertook extended visits to Sweers and Bentinck Islands. He also landed at Mornington Island. On this initial visit Roth described stone dams a little to the south of Raft Point on Bentinck Island. He also observed melo shells used for carrying food, shell cutting and scraping tools, wells, sleeping hollows, an alley-way for the purpose of trapping dugong on the south west shore of Bentinck Island, and ground ochre in a wooden trough. He observed sleeping hollows, camp fires, and shells used for water carrying on Mornington Island. On Allen Island he observed stone wall fish traps, shells used for water carriers, camp remains with abundant dugong bones, shell scrapers, wells. Roth returned to the Wellesley Islands in 1902 and 1903. He did not make any direct contact with the Kaiadilt, but visited other islands and made contact with a group of Aboriginal peoples on Forsyth Island. One outcome of Roth's visits to the region was the gazettal in 1905 of a Reserve for Aboriginal inhabitants under the provisions of the Land Act 1897 (Qld) comprising all the islands in the Wellesley group save for Sweers Island. In 1934, a reserve for the use of the Indigenous inhabitants of the State was declared in respect of Sweers Island, exclusive of freehold allotments in the town of Carnarvon and streets giving access thereto. Roth's successor, Richard Howard, visited the Wellesleys on several occasions and described the Lardil as 'isolated, giving no trouble whatsoever to anyone but living their primitive life contentedly after their own fashion." This relative lack of contact with the area's Indigenous inhabitants continued until 1914, when a Presbyterian Mission was established on the south-western side of Mornington Island. Despite the development of the Mission into a small but well-defined settlement by the early 1920s, the Superintendent of the Mission RH Wilson noted in 1933 the continuing traditional practices of the Lardil people on the Island, observing that: There are about 100 people who could be classed as semi-nomadic. They visit the Station at frequent intervals, coming in almost every week-end. These people carry on a system of barter and bring fish, native roots and berries for which they receive clothing, fish lines, hooks and other such articles. In this way a supply of native foods is secured for the regular Mission inmates. We are thus kept in regular touch with these people and are able to give medical attention, food and clothing in case of need. As noted by Dr Blake in his History Report filed in these proceedings, the policy of forced removal of Aboriginal people both from and to Mornington Island between the late 1890s and 1940 had relatively little impact on the Lardil, who continued to maintain their cultural and social homogeneity in comparison with many other Aboriginal groups throughout Queensland. By the late 1930s, Mornington Island Mission comprised the Lardil and neighbouring Yangkaal and a few individuals from mainland gulf groups. Despite systemic attempts by Sweers Islands settlers to eliminate the Kaiadilt people from Bentinck Island in 1918, the Kaiadilt continued to live on Bentinck until the mid 1940s, when they were finally brought to Mornington Island. Once there, they formed their own camp and continued to maintain their distinct cultural identity. It should also be noted that during the first half of the 19th century Gangalidda people, though coming to live in camps on pastoral stations and at Burketown (as well as at the Dumaji Mission established in 1933), continued to move around the coastal country, at least into the 1920s and 1930s. Such occupation of the Gangalidda coastal lands entailed considerable movement among people and this included some travel via traditional watercraft between the mainland and the North Wellesley Islands. Waters relatively near to the beach were routinely used for obtaining foods and other resources. In 1978, the reserve created in 1905 in respect of the Wellesley group of islands and amended in 1978, was rescinded and in its place a lease granted to the Mornington Island Shire Council for a period of 50 years under the Local Government (Aboriginal Lands) Act 1978 (Qld). On 5 August 1989, the reserve with respect to Sweers Island, created in 1934, was placed under the control of the Under-Secretary, Department of Community Services and Ethnic Affairs as trustee. The reserve was repealed in 1994. In 1994, a deed of grant in trust under the Aboriginal Land Act 1991 (Qld) was granted to the Kaiadilt Aboriginal Corporation as trustee in respect of Sweers, Fowler, Bentinck, Albinia, Little Allen, Horseshoe, Margaret, Bessie and Douglas Islands. At the same time a deed of grant in trust was also granted to the Ngaarrkinaba/Mildiji Aboriginal Corporation as trustee in respect of Allen Island. 14 In addition to the extensive and detailed history that has been considered, I also note that the State of Queensland (the State), in its written submissions in support of the Determination, indicates that it has taken notice of Cooper J's findings in Lardil . The State goes on to say that, during the mediation, it raised with the Applicant certain issues with regard to the Connection Material that required further consideration. Supplementary material was provided by the Applicant, to satisfy the State's concerns. 15 As noted, Cooper J in Lardil considered in some detail the connection of those persons he determined to hold native title to land and waters of the area within the external boundary of the Determination Area. In doing so, his Honour had the benefit of the following expert reports: • Dr Paul Memmot, Report on the Lardil and Yangkaal People , 1998; • Dr Paul Memmot, Report on the Lardil and Yangkaal People: Appendix 3 Genealogies , 1998; • Dr Nicholas Evans, Report on Kaiadilt People , 1998; • Dr Nicholas Evans and Penelope Johnson, Wellesley Islands Sea Claim: Kaiadilt Genealogies , 1998; • Dr David Trigger, Report on Gangalidda People , 1998 • Dr David Trigger, Wellesley Native Title Sea Claim Gangalidda People Genealogies , 1998; • Dr Paul Memmot and Dr Nicholas Evans, Report on Sacred Sites in the Wellesley Islands , Vol. 1 and Vol. 2, 1998; • Dr Thom Blake, Historical Report Wellesley Islands Sea Claim , 1998; and • Dr Richard Robins, Literature Survey of Information relating to the Archaeology of the Southern Gulf of Carpentaria and the Wellesley Islands , 1998. 16 Cooper J found, at [52] and [68], that at and since sovereignty the Lardil, Yangkaal, Kaiadilt and Gangalidda people have existed as culturally separate groups of indigenous people who are direct descendants of the original people who had inhabited the Determination Area. 17 The Applicant's submissions identify 11 descent groups of the Gangalidda People; 20 descent groups of the Lardil People; 5 descent groups of the Yangkaal People; and 10 descent groups of the Kaiadilt People. Schedule 5 to the Proposed Determination further describes the Native Title holders. 18 In addition to the above, the Applicant's submissions argue that "the most significant evidence of occupation by the Applicant in the Determination Area prior to sovereignty is the evidence of the present day claimants themselves." This is a reference to the oral histories of the witnesses who gave evidence before Cooper J, which demonstrate the pre-contact connection with the Determination Area. The submissions also note a number of significant individuals within the claim group all of whom ...identify their ancestors as Lardil, Yangkaal, Gangalildda or Kaiadilt People, and were spoken to in the traditional languages of those peoples. They grew up on the proposed Determination Area and were shown its places and told names by their ancestors, all of whom asserted they were the traditional owners of the area. The people who gave them that information were, in many instances, alive before contact with white people. 19 In those circumstances, the Applicant argues, ...there can be little reason to doubt the oral tradition of the Applicant group that it comprises the descendants of the people in occupation of the proposed Determination Area at sovereignty. 20 Having regard to the evidence provided by the eminent anthropological experts, and to the findings of Cooper J, I am satisfied that the Lardil, Yangkaal, Gangalidda and Kaiadilt People in these proceedings are descended from indigenous people who were in occupation of the Determination Area, at sovereignty. 21 In their submissions, the Applicant submits that on the basis of the Connection Material provided to the Court, ... the Court can also be satisfied that each of the Lardil, Yangkaal, Gangalidda and Kaiadilt people have maintained a normative system of laws, customs and beliefs that form part of an integral part of their continuing spiritual connection to the proposed Determination Area from the date of sovereignty until the present. These laws, customs and beliefs are rooted in the pre-sovereignty society of the Applicant group. While there are some variations between the Lardil, Yangkaal, Gangalidda and Kaiadilt people as to the specific details of the spiritual, religious and cultural relationships that they have with their traditional country, there are significant features common to each. 22 Cooper J considered a very large body of evidence as to the existence of and identification of the laws and customs. From those laws and customs, Cooper J, at [194]-[197] identified the rights and interests that have survived the assertion of sovereignty. 23 Having considered the extensive material provided by the Applicant, as well as the material judicially considered by Cooper J, I am satisfied that the Lardil, Yangkaal, Gangalidda and Kaiadilt people have maintained a connection with the land and waters the subject of the Proposed Determination, and that their body of traditional laws and customs support the rights and interests recognised at Orders 8 to 10 in the Proposed Determination. 24 In their submissions, the Applicant also sets out evidence of the claim group's continued maintenance of a system of land and sea tenure, and the system of law and custom under which the traditional country is divided into estates, and through which the Lardil, Yangkaal, Gangalidda and Kaiadilt people organise and regulate rights and interests in their traditional countries. 25 The evidence demonstrates that the Lardil, Yangkaal, Gangalidda and Kaiadilt people have established and maintained a system of laws and customs over their country the land and waters the subject of the Determination Area sufficient to satisfy the requirements of the Act. I am satisfied that native title exists in those areas, which are described in Schedules 1, 1A, 1B and 2 to the Orders. Orders 2 6 and Schedule 4 to the Proposed Determination delineates those sub-areas within the Determination Area in respect of which each of the Lardil, Yangkaal, Gangalidda and/or Kaiadilt people respectively hold native title. 28 Paragraph 225(a) deals with the identification of the persons holding the common or group rights comprising the native title. This is set out Schedule 5 to the Determination. The State's submissions refer to an examination of the Connection Material and state that due regard has been had to the findings of Cooper J in Lardil . The State concludes that it is "...satisfied that the identity of the Native Title holders set out in Schedule 5 of the proposed Consent Determination is established by the connection material provided on behalf of the Applicant." 29 Paragraph 225(b) deals with the nature and extent of the native title rights and interests in relation to the Determination Area and is set out in orders 8 to 13. The State, in its submissions, states that it "... is satisfied that the native title rights and interests set out in paragraphs 8 to 13 of the proposed Consent Determination are possessed under traditional laws and customs as described in the connection material provided on behalf of the Applicant." 30 Paragraph 225(c) deals with the nature and extent of any other interests in relation to the Determination Area. This is set out in Order 14 and Schedule 6. The State has undertaken a careful assessment of historical and current information involving tenures granted or issued by the State to assist in the identification of other interests.


case_outcome: cited

case_text: The exercise of power by the Court is also subject to the Court being satisfied that it is appropriate for the Court to make the orders sought (see Lovett (on behalf of the Gunditjmara People) v Victoria [2007] FCA 474 , at [5]), and, as with any order of the Court, being satisfied that the proposed orders are unambiguous and certain as to the rights declared (see Munn (on behalf of the Gungarri People) v Queensland [2001] FCA 1229 ; (2001) 115 FCR 109 , at [32]).


case_title: Munn (on behalf of the Gungarri People) v Queensland [2001] FCA 1229 ; (2001) 115 FCR 109


case_text: As was observed in Sea Culture International Pty Ltd v Scoles and Others [1991] FCA 523 ; (1991) 32 FCR 275 at 279, there is an infinite variety of circumstances which may give rise to an abuse of process (see also Ashmore v British Coal Corporation [1990] 2 QB 338 at 348). However, the Court is mindful that the power to strike out proceedings should be used only in exceptional cases where the facts disclose a clear case of abuse: see Sea Culture at 279.


case_text: On 24 May 2007 Edmonds J, having observed that the applicant had not put before his Honour any material upon which 'I might conclude that the orders made below are attended with sufficient doubt to warrant them being reconsidered by this Court' refused the application for leave with costs: see Croker v Commonwealth of Australia [2007] FCA 831. 26 On 5 April 2007 the Commonwealth applied for security for costs in the Federal Magistrates Court. 27 On 29 May 2007 Mr Croker filed an application for a stay in the Federal Magistrates Court 'until the outcome of an application to the High Court of Australia' . No such application existed.


case_text: On 17 October 2007 the application for leave to appeal against such orders was dismissed by Buchanan J. His Honour also ordered Mr Croker to pay the costs of the application for leave: see Croker v Commonwealth of Australia [2007] FCA 1593. 32 On 31 October 2007 Federal Magistrate Lloyd-Jones stayed the Federal Magistrates Court proceedings SYG 548 of 2007 pending payment for security for costs and ordered that proceedings be dismissed if security was not paid by 5.00 pm on 16 November 2007. 33 Mr Croker did not pay the amount so ordered. On 22 November 2007 the Commonwealth wrote to Mr Croker advising that, in the absence of payment of security as ordered, the proceedings were dismissed. On 6 March 2008 an order was made by Lloyd-Jones FM dismissing the proceedings. An order was also made for payment by Mr Croker of the costs of the Commonwealth.


case_outcome: referred to

case_text: The written submissions include reference to the Legal Services Directions 2005 , Judiciary Act 1903 (Cth) and to the 'Model Litigant' responsibility referred to in Re Summers and Secretary, Department of Family and Community Services [2005] AATA 125. Mr Croker submits that the standard of fair dealing which was referred to in such authorities applies to the Commonwealth as a model litigant. 47 The facts giving rise to Mr Croker's claim and the relief claimed in the current proceedings are, subject to the increase in damages claimed from $100,000 to $200,000, the same as those referred to in NSD 2478 of 2006 which were transferred to the Federal Magistrates Court and became proceedings SYG 548 of 2007. Those proceedings were dismissed because Mr Croker did not comply with the order made by Federal Magistrate Lloyd-Jones on 31 October 2007. 48 The statements of claim in both proceedings NSD 2478 of 2006 and in the current proceedings include claims under s 52 of the Trade Practices Act 1974 (Cth), breach of warranty and a claim for 'wrongfully defending a claim' . The last mentioned claim is predicated upon the basis that the Commonwealth is required to observe a policy of fair dealing pursuant to the direction of the Attorney-General under s 55ZF of the Judiciary Act 1903 (Cth).


case_outcome: applied

case_title: Sea Culture International Pty Ltd v Scoles and Others [1991] FCA 523 ; (1991) 32 FCR 275


case_outcome: affirmed

case_text: This appeal is from a judgment of the Federal Magistrates Court of Australia, given on 22 August 2008 and published as SZMHQ v Minister for Immigration and Anor [2008] FMCA 1190. The learned federal magistrate dismissed the appellant's application to set aside a decision of the Refugee Review Tribunal ("the Tribunal"), dated 17 April 2008, and handed down or sent on 13 May 2008. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Citizenship ("the Minister"), the first respondent to this appeal, not to grant the appellant a protection visa. 2 The appellant is a citizen of Thailand, who arrived in Australia on 2 September 2007. On 12 October 2007, she applied to the Department of Immigration and Citizenship for a protection visa. The decision of the delegate of the Minister refusing to grant the visa was made on 20 December 2007. 3 By s 36 of the Migration Act 1958 (Cth) ("the Migration Act "), there is a class of visas to be known as protection visas. A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms "Refugees Convention" and "Refugees Protocol" are defined in s 5(1) of the Migration Act to mean, respectively, the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967 . It is convenient to refer to these two documents, taken together, as the "Convention".


case_text: That the process of characterisation is approached from a practical and business point of view does not provide licence to ignore the legal relationship actually formed by the terms of the transaction. Subject to considerations of sham (not relevant here) and to considerations that the legal form agreed on may have been varied or may be incomplete (also not relevant here), the process of characterisation, from a practical and business point of view, is one that is directed to the legal rights and obligations created by the parties in their transaction (here, in the constituent documents). This was made clear in the judgments of Gibbs ACJ and Stephen and Aickin JJ in Federal Commissioner of Taxation v South Australia Battery Makers Pty Ltd [1978] HCA 32 ; (1978) 140 CLR 645 at 659-660 and 662, respectively. It is also made clear in the reasons of the Full Court in CityLink Melbourne Limited v Commissioner of Taxation [2004] FCAFC 272 ; (2004) 141 FCR 69 at [40] - [45] ; and in the reasons of Hill J (with whom Davies and Heerey JJ agreed) in Australia & New Zealand Savings Bank v Commissioner of Taxation [1992] FCA 493 ; (1993) 42 FCR 535 at 560.


case_text: To similar effect, see the judgment of the Privy Council in BP Australia Limited v Commissioner of Taxation [1965] UKPCHCA 2 ; (1965) 112 CLR 386 at 397 and 399. 58 It is clear that the character of the advantage sought by the making of the expenditure is the chief, if not critical, factor in determining the character of what was paid: The Colonial Mutual Life Assurance Society Limited v The Federal Commissioner of Taxation [1953] HCA 68 ; (1953) 89 CLR 428 at 454; GP International Pipecoaters Pty Limited v Commissioner of Taxation [1990] HCA 25 ; (1990) 170 CLR 124 at 137; Mount Isa Mines Limited v Commissioner of Taxation [1992] HCA 62 ; (1992) 176 CLR 141 at 147-149; Commissioner of Taxation v CityLink Melbourne Limited [2006] HCA 35 ; (2006) 228 CLR 1 at [1] , [3], [76], [77] and [148]; and BP Australia 112 CLR at 394 and 398. 61 It is also essential to recognise that the above analysis of characterisation requires "both a wide survey and an exact scrutiny of the taxpayer's activities": Western Gold Mines (NL) v Commissioner of Taxation (WA) [1938] HCA 5 ; (1938) 59 CLR 729 at 740. That is, one examines the whole business context of what was done: BP Australia 112 CLR at 399; National Australia Bank Limited v Commissioner of Taxation (1997) 80 FCR 352 at 362; Commissioner of Taxation v Cooling (1990) 22 FCR 42 at 52-53 (Hill J); and Macquarie Finance Limited v Commissioner of Taxation [2004] FCA 1170 ; (2004) 210 ALR 508 (Hill J) at [64]. Relevant also here is the close interconnection of all the constituent documents in the integrated international commercial transaction: cf Inland Revenue Commissioner v Europa Oil (NZ) Ltd [1971] AC 760 at 774-775.


case_outcome: discussed

case_text: It is clear that the character of the advantage sought by the making of the expenditure is the chief, if not critical, factor in determining the character of what was paid: The Colonial Mutual Life Assurance Society Limited v The Federal Commissioner of Taxation [1953] HCA 68 ; (1953) 89 CLR 428 at 454; GP International Pipecoaters Pty Limited v Commissioner of Taxation [1990] HCA 25 ; (1990) 170 CLR 124 at 137; Mount Isa Mines Limited v Commissioner of Taxation [1992] HCA 62 ; (1992) 176 CLR 141 at 147-149; Commissioner of Taxation v CityLink Melbourne Limited [2006] HCA 35 ; (2006) 228 CLR 1 at [1] , [3], [76], [77] and [148]; and BP Australia 112 CLR at 394 and 398. 59 That the process of characterisation is approached from a practical and business point of view does not provide licence to ignore the legal relationship actually formed by the terms of the transaction. Subject to considerations of sham (not relevant here) and to considerations that the legal form agreed on may have been varied or may be incomplete (also not relevant here), the process of characterisation, from a practical and business point of view, is one that is directed to the legal rights and obligations created by the parties in their transaction (here, in the constituent documents). This was made clear in the judgments of Gibbs ACJ and Stephen and Aickin JJ in Federal Commissioner of Taxation v South Australia Battery Makers Pty Ltd [1978] HCA 32 ; (1978) 140 CLR 645 at 659-660 and 662, respectively. It is also made clear in the reasons of the Full Court in CityLink Melbourne Limited v Commissioner of Taxation [2004] FCAFC 272 ; (2004) 141 FCR 69 at [40] - [45] ; and in the reasons of Hill J (with whom Davies and Heerey JJ agreed) in Australia & New Zealand Savings Bank v Commissioner of Taxation [1992] FCA 493 ; (1993) 42 FCR 535 at 560. 63 Equally impermissible is to recast the transaction entered between the parties and substitute an economic equivalent: CityLink Melbourne 141 FCR at 40 and Commissioner of Taxation v Myer Emporium Ltd [1987] HCA 18 ; (1986) 163 CLR 199 at 217. Some of the submissions of the Commissioner tended towards such an approach. It is not permissible, for instance, to take as the subject of characterisation what is "really happening", being the payment of money by SGB, nominally as "interest", but in truth as the payment to capital securities holder of their dividend. That is not the legal relationship that has been lawfully set up. The payment to be the subject of characterisation is the payment of interest on the Debenture under the Indenture. The task is to decide, from a business and practical perspective, giving weight to the nature of the rights and obligations of the parties created by the relevant transaction documents, and placing the Indenture and the rights and obligations arising therefrom in their complete relevant legal and business context, whether the outgoings of interest bear the character of capital or revenue.


case_text: It is clear that the character of the advantage sought by the making of the expenditure is the chief, if not critical, factor in determining the character of what was paid: The Colonial Mutual Life Assurance Society Limited v The Federal Commissioner of Taxation [1953] HCA 68 ; (1953) 89 CLR 428 at 454; GP International Pipecoaters Pty Limited v Commissioner of Taxation [1990] HCA 25 ; (1990) 170 CLR 124 at 137; Mount Isa Mines Limited v Commissioner of Taxation [1992] HCA 62 ; (1992) 176 CLR 141 at 147-149; Commissioner of Taxation v CityLink Melbourne Limited [2006] HCA 35 ; (2006) 228 CLR 1 at [1] , [3], [76], [77] and [148]; and BP Australia 112 CLR at 394 and 398.


case_text: At times, the submissions put on behalf of SGB appeared to combine the undoubtedly correct (at least at a sufficient level of generality) propositions that the contractual and legal rights must be analysed and that the separateness of corporate entities must be recognised: The Federal Coke Company v Federal Commissioner of Taxation (1997) 15 ALR 449 at 459 per Bowen CJ and Commissioner of Taxation v Asiamet (No 1) Resources Pty Ltd [2004] FCAFC 73 ; (2004) 137 FCR 146 at [148] - [165] , in aid of a different objective, that is to have the interest payable under the Debenture analysed by reference primarily, if not wholly, to the rights and obligations created under the Indenture, without regard to the whole of the surrounding arrangement. Such an approach is impermissible. It ignores the essential requirement to view the legal rights and obligations created by the parties, and payments and outgoings made thereunder, in their whole legal and commercial context, in order that the characterisation, from a business and practical point of view, of the payment or outgoing by reference to the relevant legal relationship can be undertaken. Legal form is the subject of the characterisation; it is not the sole source of the answer to that process of characterisation: cf Parsons RW op cit [2.421]-[2.422]. The requirement to look at the whole legal and business context is not denied by what was said by Deane and Sheppard JJ in Ure v Federal Commission of Taxation (1981) 34 ALR 237 at 249, as appeared to be put by SGB.


case_text: It is also essential to recognise that the above analysis of characterisation requires "both a wide survey and an exact scrutiny of the taxpayer's activities": Western Gold Mines (NL) v Commissioner of Taxation (WA) [1938] HCA 5 ; (1938) 59 CLR 729 at 740. That is, one examines the whole business context of what was done: BP Australia 112 CLR at 399; National Australia Bank Limited v Commissioner of Taxation (1997) 80 FCR 352 at 362; Commissioner of Taxation v Cooling (1990) 22 FCR 42 at 52-53 (Hill J); and Macquarie Finance Limited v Commissioner of Taxation [2004] FCA 1170 ; (2004) 210 ALR 508 (Hill J) at [64]. Relevant also here is the close interconnection of all the constituent documents in the integrated international commercial transaction: cf Inland Revenue Commissioner v Europa Oil (NZ) Ltd [1971] AC 760 at 774-775.


case_text: It is unnecessary to decide this aspect of the case. The parties, however, fully argued the relevant issues. I was invited by the Commissioner to provide my reasons on the issues argued even if they were not necessary for my decision. After initially submitting that I should not do so, SGB put submissions to the effect of those put by the Commissioner in this respect. I have given careful consideration to complying with the request of the parties to discuss Division 974 even if it is not necessary for a decision. I have come to the view that I should not, for three reasons. First, no separate body of facts needs to be found for the assistance of a Full Court, should I be found to have erred in my earlier analysis. Secondly, however detailed and concluded my views, they would not be essential for the reasoning underlying the orders made. They would, as obiter dicta , lack a degree of authority. Subject to conforming with the law of Australia as laid out by Parliament and as interpreted and declared by the courts as the judicial branch of government: (see Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Ltd (2007) 158 FCR 325) it is for the Commissioner and the ATO to administer the revenue legislation as they interpret it. There has been public comment made by the Commissioner, the ATO, and others, apparently doubting elements of these basal governmental separations, responsibilities and functions discussed in Indooroopilly 158 FCR 325. This is not the place to enter that debate. It is, however, appropriate to recognise that courts decide cases and, in so doing, declare the law, including the meaning and effect of laws of the Parliament. To the extent that my views on Division 974 would be clearly obiter dicta, they may create an unnecessary impediment to the administration of the revenue legislation if they are not part of the ratio decidendi of the decision. Thirdly, the business community and capital markets, likewise, will have my views that are not part of the ratio decidendi affecting questions of advice and judgment in circumstances where the views of the Commissioner and the ATO can be sought by ruling or assessment, and, thereafter, be directly and specifically tested and ruled upon in a way binding on both the revenue and the taxpayer. 100 I should add that I have come to these views having had the benefit of the thorough and careful submission of counsel for both sides (for which I express my gratitude) and having considered these submissions in considerable detail. 101 As to the evidence requiring a ruling I set out my rulings and my reasons (in brief).


case_text: Equally impermissible is to recast the transaction entered between the parties and substitute an economic equivalent: CityLink Melbourne 141 FCR at 40 and Commissioner of Taxation v Myer Emporium Ltd [1987] HCA 18 ; (1986) 163 CLR 199 at 217. Some of the submissions of the Commissioner tended towards such an approach. It is not permissible, for instance, to take as the subject of characterisation what is "really happening", being the payment of money by SGB, nominally as "interest", but in truth as the payment to capital securities holder of their dividend. That is not the legal relationship that has been lawfully set up. The payment to be the subject of characterisation is the payment of interest on the Debenture under the Indenture. The task is to decide, from a business and practical perspective, giving weight to the nature of the rights and obligations of the parties created by the relevant transaction documents, and placing the Indenture and the rights and obligations arising therefrom in their complete relevant legal and business context, whether the outgoings of interest bear the character of capital or revenue.


case_text: That the process of characterisation is approached from a practical and business point of view does not provide licence to ignore the legal relationship actually formed by the terms of the transaction. Subject to considerations of sham (not relevant here) and to considerations that the legal form agreed on may have been varied or may be incomplete (also not relevant here), the process of characterisation, from a practical and business point of view, is one that is directed to the legal rights and obligations created by the parties in their transaction (here, in the constituent documents). This was made clear in the judgments of Gibbs ACJ and Stephen and Aickin JJ in Federal Commissioner of Taxation v South Australia Battery Makers Pty Ltd [1978] HCA 32 ; (1978) 140 CLR 645 at 659-660 and 662, respectively. It is also made clear in the reasons of the Full Court in CityLink Melbourne Limited v Commissioner of Taxation [2004] FCAFC 272 ; (2004) 141 FCR 69 at [40] - [45] ; and in the reasons of Hill J (with whom Davies and Heerey JJ agreed) in Australia & New Zealand Savings Bank v Commissioner of Taxation [1992] FCA 493 ; (1993) 42 FCR 535 at 560. 82 The conclusion that I have reached is supported by South Australian Battery Makers [1978] HCA 32 ; 140 CLR 645. As Gibbs ACJ said at 655: If on the other hand one advantage sought by the outgoings was the acquisition of a capital asset (the land and buildings), the fact that the payments were called 'rent', and were made periodically, would not necessarily prevent them from being in part outgoings of a capital nature. 83 There, the capital advantage was not obtained by the taxpayer; here it was. The benefit of the arrangement and integrated structure of which the Indenture and Debenture were an integral and integrated part inured to the benefit of SGB by the strengthening of the capital structure of SGB and its group in a manner that was acceptable to the RBA. The advantage sought and obtained by the interest payments was the assistance in the creation and maintenance of that business capital structure for the long-term structural benefit of SGB. 84 Division 974 was introduced into the 1997 Act by the Debt/Equity Act. The Debt/Equity Provisions sought to set out a statutory regime for the treatment of the deductibility of returns on financial interests issued by a company. In particular, these provisions sought to identify new rules governing what is an equity interest and what is a debt interest for tax purposes, based on the economic substance of the rights and obligations of the arrangement, rather than their legal form. A premise underlying the rationale of the provisions was the likely deductibility of interest on what is a debt in legal form.


case_title: Federal Coke Company v Federal Commissioner of Taxation (1997) 15 ALR 449


case_title: GP International Pipecoaters Pty Limited v Commissioner of Taxation [1990] HCA 25 ; (1990) 170 CLR 124


case_text: In Hallstroms Proprietary Limited v The Federal Commissioner of Taxation [1946] HCA 34 ; (1946) 72 CLR 634 , Dixon J incorporated his reasons in Sun Newspapers 61 CLR at 359-363 and elaborated upon them saying the following at 646, 647 and 648: As a prefatory remark it may be useful to recall the general consideration that the contrast between the two forms of expenditure corresponds to the distinction between the acquisition of the means of production and the use of them; between establishing or extending a business organization and carrying on the business; between the implements employed in work and the regular performance of the work in which they are employed; between an enterprise itself and the sustained effort of those engaged in it. ... What is an outgoing of capital and what is an outgoing on account of revenue depends on what the expenditure is calculated to effect from a practical and business point of view, rather than upon the juristic classification of the legal rights, if any, secured, employed or exhausted in the process. [emphasis added]


case_text: By and large, the parties were not in disagreement about the governing legal principles. The disagreement, however, came in the characterisation called for by those principles. At times, there appeared to be a difference between the parties based on the posited distinctions, first, between legal form and business substance, and secondly, between the loan or non-loan character of the Debenture. Neither such distinction is determinative. The relevant distinction is in the words of s 8-1: capital or in the nature of capital (juxtaposed against the contrary concept inherent in the context of s 8-1(2): that of revenue outgoing). Ultimately, however, the difference between the parties can be found in the process of characterisation of the legal relationship created among the parties, set in the full business and legal context of that relationship. Minds may differ in the conclusions reached in that exercise. That is almost inevitable in such a process of characterisation when the facts are not sufficiently obvious as to answer the question themselves: cf Heather v P-E Consulting Group Ltd [1973] Ch 189.


case_title: Inland Revenue Commissioner v Europa Oil (NZ) Ltd [1971] AC 760


case_text: There was no issue about s 8-1(1). It should be noted at the outset that this concession by the Commissioner did not provoke an argument on behalf of SGB that this led to the satisfaction of s 8-1(2). There was no debate or discussion as to the true nature of the "negative limbs" of s 8-1(2) and whether they operate only by way of contradistinction to illustrate what is not included, from the outset, in the "positive limbs" of s 8-1(1), or as true exceptions: Macquarie Finance Ltd v Commissioner of Taxation [2005] FCAFC 205 ; (2005) 146 FCR 77 at [104] : SA Battery Makers Pty Limited v Commissioner of Taxation (1976) 28 FLR 451 at 463; and Parsons, RW Income Tax in Australia (1985, Law Book Co Sydney) at [5.12]. The argument proceeded, in substance, on the basis that s 8-1(2) was a true exception, an approach which has judicial support: Steele v Deputy Commissioner of Taxation (1999) 197 CLR 459 at 468 [24] and John Fairfax & Sons Pty Limited v Commissioner of Taxation [1959] HCA 4 ; (1959) 101 CLR 30 at 34, and which accords more with a plain reading of the text of the statute.


case_text: It is also essential to recognise that the above analysis of characterisation requires "both a wide survey and an exact scrutiny of the taxpayer's activities": Western Gold Mines (NL) v Commissioner of Taxation (WA) [1938] HCA 5 ; (1938) 59 CLR 729 at 740. That is, one examines the whole business context of what was done: BP Australia 112 CLR at 399; National Australia Bank Limited v Commissioner of Taxation (1997) 80 FCR 352 at 362; Commissioner of Taxation v Cooling (1990) 22 FCR 42 at 52-53 (Hill J); and Macquarie Finance Limited v Commissioner of Taxation [2004] FCA 1170 ; (2004) 210 ALR 508 (Hill J) at [64]. Relevant also here is the close interconnection of all the constituent documents in the integrated international commercial transaction: cf Inland Revenue Commissioner v Europa Oil (NZ) Ltd [1971] AC 760 at 774-775. 64 Before examining the relevant aspects of the overall arrangement to answer this question, it is necessary to say something about the submissions about interest and deductibility. The expression of views by the judges in cases as to the usual approach to interest in this context should be seen for what they are, and are not. They are the discussion of the kinds of consideration discussed by Dixon J in Sun Newspapers and Hallstroms Case in the context of interest on a loan. Thus, it can be accepted that, ordinarily, interest will be an allowable deduction under s 8-1, if incurred in the course of an income-producing activity or business: Texas Co (Australasia) Ltd v Federal Commissioner of Taxation [1940] HCA 9 ; (1940) 63 CLR 382 at 468 and Steele v Deputy Commissioner of Taxation 197 CLR at 469-70 [27]. This acceptance does not lay down some independent rule to be engaged and analysed beyond the characterisation enquiry discussed earlier. Rather, interest is usually deductible because, usually, it is a recurrent or periodic payment securing an advantage not of an enduring kind, but the use by the borrower of money during the term of the loan: Steele v Deputy Commissioner of Taxation 197 CLR at 469-470 [27]. But, as was noted in the same paragraph, "there may be particular circumstances where it is proper to regard the purpose of interest payments as something other than the raising or maintenance of the borrowing and thus, potentially, of a capital nature." To this passage there was footnoted Parsons RW op cit [6.11]. The possibilities referred to by Professor Parsons in that paragraph do not form an exhaustive universe of non-deductible interest. See also the discussion by Hill J at first instance in Macquarie Finance Limited v Commissioner of Taxation 210 ALR at [47].


case_title: Macquarie Finance Ltd v Commissioner of Taxation [2005] FCAFC 205 ; (2005) 146 FCR 77


case_title: Mount Isa Mines Limited v Commissioner of Taxation [1992] HCA 62 ; (1992) 176 CLR 141


case_title: National Australia Bank Limited v Commissioner of Taxation (1997) 80 FCR 352


case_title: SA Battery Makers Pty Limited v Commissioner of Taxation (1976) 28 FLR 451


case_text: There was no issue about s 8-1(1). It should be noted at the outset that this concession by the Commissioner did not provoke an argument on behalf of SGB that this led to the satisfaction of s 8-1(2). There was no debate or discussion as to the true nature of the "negative limbs" of s 8-1(2) and whether they operate only by way of contradistinction to illustrate what is not included, from the outset, in the "positive limbs" of s 8-1(1), or as true exceptions: Macquarie Finance Ltd v Commissioner of Taxation [2005] FCAFC 205 ; (2005) 146 FCR 77 at [104] : SA Battery Makers Pty Limited v Commissioner of Taxation (1976) 28 FLR 451 at 463; and Parsons, RW Income Tax in Australia (1985, Law Book Co Sydney) at [5.12]. The argument proceeded, in substance, on the basis that s 8-1(2) was a true exception, an approach which has judicial support: Steele v Deputy Commissioner of Taxation (1999) 197 CLR 459 at 468 [24] and John Fairfax & Sons Pty Limited v Commissioner of Taxation [1959] HCA 4 ; (1959) 101 CLR 30 at 34, and which accords more with a plain reading of the text of the statute. 64 Before examining the relevant aspects of the overall arrangement to answer this question, it is necessary to say something about the submissions about interest and deductibility. The expression of views by the judges in cases as to the usual approach to interest in this context should be seen for what they are, and are not. They are the discussion of the kinds of consideration discussed by Dixon J in Sun Newspapers and Hallstroms Case in the context of interest on a loan. Thus, it can be accepted that, ordinarily, interest will be an allowable deduction under s 8-1, if incurred in the course of an income-producing activity or business: Texas Co (Australasia) Ltd v Federal Commissioner of Taxation [1940] HCA 9 ; (1940) 63 CLR 382 at 468 and Steele v Deputy Commissioner of Taxation 197 CLR at 469-70 [27]. This acceptance does not lay down some independent rule to be engaged and analysed beyond the characterisation enquiry discussed earlier. Rather, interest is usually deductible because, usually, it is a recurrent or periodic payment securing an advantage not of an enduring kind, but the use by the borrower of money during the term of the loan: Steele v Deputy Commissioner of Taxation 197 CLR at 469-470 [27]. But, as was noted in the same paragraph, "there may be particular circumstances where it is proper to regard the purpose of interest payments as something other than the raising or maintenance of the borrowing and thus, potentially, of a capital nature." To this passage there was footnoted Parsons RW op cit [6.11]. The possibilities referred to by Professor Parsons in that paragraph do not form an exhaustive universe of non-deductible interest. See also the discussion by Hill J at first instance in Macquarie Finance Limited v Commissioner of Taxation 210 ALR at [47].


case_title: Sun Newspapers Limited v The Federal Commissioner of Taxation; Associated Newspapers Limited v The Federal Commis s ioner of Taxation [1938] HCA 73 ; (1938) 61 CLR 337

case_text: The starting point for analysis is the judgment of Dixon J (as he then was) in Sun Newspapers Limited v The Federal Commissioner of Taxation; Associated Newspapers Limited v The Federal Commissioner of Taxation [1938] HCA 73 ; (1938) 61 CLR 337 at 359-363. A number of passages in that classic analysis at 359, 360, 361, 362 and 363 are worthy of repetition here: The distinction between expenditure and outgoings on revenue account and on capital account corresponds with the distinction between the business entity, structure, or organization set up or established for the earning of profit and the process by which such an organization operates to obtain regular returns by means of regular outlay, the difference between the outlay and returns representing profit or loss. The business structure or entity or organization may assume any of an almost infinite variety of shapes and it may be difficult to comprehend under one description all the forms in which it may be manifested. In a trade or pursuit where little or no plant is required, it may be represented by no more than the intangible elements constituting what is commonly called goodwill, that is, widespread or general reputation, habitual patronage by clients or customers and an organized method of serving their needs. At the other extreme it may consist in a great aggregate of buildings, machinery and plant all assembled and systematized as the material means by which an organized body of men produce and distribute commodities or perform services. But in spite of the entirely different forms, material and immaterial, in which it may be expressed, such sources of income contain or consist in what has been called a "profit-yielding subject," the phrase of Lord Blackburn in United Collieries Ltd. v. Inland Revenue Commissioners ... As general conceptions it may not be difficult to distinguish between the profit-yielding subject and the process of operating it. In the same way expenditure and outlay upon establishing, replacing and enlarging the profit-yielding subject may in a general way appear to be of a nature entirely different from the continual flow of working expenses which are or ought to be supplied continually out of the returns or revenue . ... But the practical application of such general notions is another matter. The basal difficulty in applying them lies in the fact that the extent, condition and efficiency of the profit-yielding subject is often as much the product of the course of operations as it is of a clear and definable outlay of work or money by way of establishment, replacement or enlargement . ... But for the same or a like reason it is even harder to maintain the distinction in relation to the intangible elements forming so important a part of many profit-yielding subjects. For example, a profitable enterprise such as the sale of a patent medicine may depend almost entirely on advertisement. In the beginning the goodwill may have been established by a great initial outlay upon a widespread advertising campaign carried out upon a scale which it was not intended to maintain or repeat. The outlay might properly be considered to be of a capital nature. On the other hand the goodwill may have been gradually established by continual advertisement over a period of years growing in extent as it proved successful. In that case the expenditure upon advertising might be regarded as an ordinary business outgoing on account of revenue. ... In the attempt, by no means successful, to find some test or standard by the application of which expenditure or outgoings may be referred to capital account or to revenue account the courts have relied to some extent upon the difference between an outlay which is recurrent, repeated or continual and that which is final or made "once for all", and to a still greater extent upon a distinction to be discovered in the nature of the asset or advantage obtained by the outlay. If what is commonly understood as a fixed capital asset is acquired the question answers itself. But the distinction goes further. The result or purpose of the expenditure may be to bring into existence or procure some asset or advantage of a lasting character which will enure for the benefit of the organization or system or "profit-earning subject." It will thus be distinguished from the expenditure which should be recouped by circulating capital or by working capital. ... But the idea of recurrence and the idea of endurance or continuance over a duration of time both depend on degree and comparison. As to the first it has been said it is not a question of recurring every year or every accounting period; but "the real test is between expenditure which is made to meet a continuous demand, as opposed to an expenditure which is made once for all" ... By this I understand that the expenditure is to be considered of a revenue nature if its purpose brings it within the very wide class of things which in the aggregate form the constant demand which must be answered out of the returns of a trade or its circulating capital and that actual recurrence of the specific thing need not take place or be expected as likely. Thus, in Anglo-Persian Oil Co. Ltd. v. Dale ... the establishment and reorganization of agencies formed part of the class of things making the continuous or constant demand for expenditure, but the given transaction was of a magnitude and precise description unlikely again to be encountered. Recurrence is not a test, it is no more than a consideration the weight of which depends upon the nature of the expenditure. ... There are, I think, three matters to be considered, (a) the character of the advantage sought, and in this its lasting qualities may play a part, (b) the manner in which it is to be used, relied upon or enjoyed, and in this and under the former head recurrence may play its part, and (c) the means adopted to obtain it; that is, by providing a periodical reward or outlay to cover its use or enjoyment for periods commensurate with the payment or by making a final provision or payment so as to secure future use or enjoyment. [emphasis added; footnotes omitted] 56 In Hallstroms Proprietary Limited v The Federal Commissioner of Taxation [1946] HCA 34 ; (1946) 72 CLR 634 , Dixon J incorporated his reasons in Sun Newspapers 61 CLR at 359-363 and elaborated upon them saying the following at 646, 647 and 648: As a prefatory remark it may be useful to recall the general consideration that the contrast between the two forms of expenditure corresponds to the distinction between the acquisition of the means of production and the use of them; between establishing or extending a business organization and carrying on the business; between the implements employed in work and the regular performance of the work in which they are employed; between an enterprise itself and the sustained effort of those engaged in it. ... What is an outgoing of capital and what is an outgoing on account of revenue depends on what the expenditure is calculated to effect from a practical and business point of view, rather than upon the juristic classification of the legal rights, if any, secured, employed or exhausted in the process. [emphasis added] 60 Thus, it is not helpful to ascertain the subject matter for characterisation otherwise than by (subject to sham etc) straightforward analysis of the legal relationship of the parties and the ascertainment from that analysis of the legal context and character of the payment. The conclusions drawn from that analysis will, of course, be relevant to the central task assessing, from a practical business point of view, the true business character of the outgoing by reference to the notions of capital and revenue illuminated by Dixon J in Sun Newspapers and Hallstroms Case. 64 Before examining the relevant aspects of the overall arrangement to answer this question, it is necessary to say something about the submissions about interest and deductibility. The expression of views by the judges in cases as to the usual approach to interest in this context should be seen for what they are, and are not. They are the discussion of the kinds of consideration discussed by Dixon J in Sun Newspapers and Hallstroms Case in the context of interest on a loan. Thus, it can be accepted that, ordinarily, interest will be an allowable deduction under s 8-1, if incurred in the course of an income-producing activity or business: Texas Co (Australasia) Ltd v Federal Commissioner of Taxation [1940] HCA 9 ; (1940) 63 CLR 382 at 468 and Steele v Deputy Commissioner of Taxation 197 CLR at 469-70 [27]. This acceptance does not lay down some independent rule to be engaged and analysed beyond the characterisation enquiry discussed earlier. Rather, interest is usually deductible because, usually, it is a recurrent or periodic payment securing an advantage not of an enduring kind, but the use by the borrower of money during the term of the loan: Steele v Deputy Commissioner of Taxation 197 CLR at 469-470 [27]. But, as was noted in the same paragraph, "there may be particular circumstances where it is proper to regard the purpose of interest payments as something other than the raising or maintenance of the borrowing and thus, potentially, of a capital nature." To this passage there was footnoted Parsons RW op cit [6.11]. The possibilities referred to by Professor Parsons in that paragraph do not form an exhaustive universe of non-deductible interest. See also the discussion by Hill J at first instance in Macquarie Finance Limited v Commissioner of Taxation 210 ALR at [47].


case_text: Before examining the relevant aspects of the overall arrangement to answer this question, it is necessary to say something about the submissions about interest and deductibility. The expression of views by the judges in cases as to the usual approach to interest in this context should be seen for what they are, and are not. They are the discussion of the kinds of consideration discussed by Dixon J in Sun Newspapers and Hallstroms Case in the context of interest on a loan. Thus, it can be accepted that, ordinarily, interest will be an allowable deduction under s 8-1, if incurred in the course of an income-producing activity or business: Texas Co (Australasia) Ltd v Federal Commissioner of Taxation [1940] HCA 9 ; (1940) 63 CLR 382 at 468 and Steele v Deputy Commissioner of Taxation 197 CLR at 469-70 [27]. This acceptance does not lay down some independent rule to be engaged and analysed beyond the characterisation enquiry discussed earlier. Rather, interest is usually deductible because, usually, it is a recurrent or periodic payment securing an advantage not of an enduring kind, but the use by the borrower of money during the term of the loan: Steele v Deputy Commissioner of Taxation 197 CLR at 469-470 [27]. But, as was noted in the same paragraph, "there may be particular circumstances where it is proper to regard the purpose of interest payments as something other than the raising or maintenance of the borrowing and thus, potentially, of a capital nature." To this passage there was footnoted Parsons RW op cit [6.11]. The possibilities referred to by Professor Parsons in that paragraph do not form an exhaustive universe of non-deductible interest. See also the discussion by Hill J at first instance in Macquarie Finance Limited v Commissioner of Taxation 210 ALR at [47].


case_title: Ure v Federal Commission of Taxation (1981) 34 ALR 237


case_title: Western Gold Mines (NL) v Commissioner of Taxation (WA) [1938] HCA 5 ; (1938) 59 CLR 729


case_text: requirement must be construed in the context of the Act as a whole and in conformity with the purpose of the Act. The Act provides for mediation and ultimate agreement as the primary means for resolving native title applications. Thus, the main concern of the Court when considering an application under s 87 and s 87A is whether there has been a genuine agreement which was made freely and on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6 ; [2002] FCA 660 at [14] . A relevant consideration on this aspect will be whether the parties have had independent and competent legal representation and, in the case of State parties, whether they have given appropriate consideration to the claims of the applicants: Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 ; [2001] FCA 1229 at [29] .


case_title: Nangkiriny v State of Western Australia (2002) 117 FCR 6 ; [2002] FCA 660


case_text: emphasis in the Act on mediation towards agreement is designed to minimise cost and delay. The section should therefore not be construed to require parties to an agreement to provide evidence to the Court on an application under s 87 or s 87A of the same nature as if the case had gone to trial. The purpose of the section is to encourage parties to avoid a trial: Ward v State of Western Australia [2006] FCA 1848 at [8] ( Ward ). In most circumstances the fact of agreement will be sufficient evidence upon which the Court may act under the section. It will not ordinarily be necessary for the Court to be provided with evidence of the primary facts substantiating native title: Ward [2006] FCA 1848 at [8] . In the present case all the parties were legally represented. In relation to the consideration given by the State of Western Australia to the application, Mr Hamley, who is the Executive Director of the Office of Native Title (ONT) in the Western Australian Department of Treasury and Finance, explained the process which led to the agreement of the State of Western Australia. The process is laid down in the State's Guidelines for the Provision of Information and Support of Applications for a Determination of Native Title dated October 2004 (the Guidelines). First, the applicants were required to provide evidence of connection. In response they provided a Connection Report dated April 2006 from Dr Nicholas Smith, the Senior Anthropologist with the Pilbara Native Title Service. The report came with a DVD showing a number of the Nyangumarta People explaining their connection with country, and also with genealogies and genealogical sources. In accordance with the Guidelines this material was reviewed internally by Ms Debbie Fletcher, the Director of Research. On the basis of this internal review the ONT advised the then Deputy Premier that the State should enter into negotiations toward an agreed determination of native title. Mr Hamley explained the basis upon which this advice was given. He said: ...In particular, ONT was satisfied that the connection material supports the existence of a body of traditional laws and customs under which the claimants hold rights and interests within the area covered by the application. This was on the basis that: (a) the Nyangumarta claimants are a clearly defined group of people who acknowledge and observe a shared set of normative rules for determining group membership and are descended from Nyangumarta ancestors who were present in the claim area at the time of settlement; (b) there is evidence of continuity of acknowledgement and observance of traditional laws and customs in relation to the claim area by the claimants and transmission of these laws and customs to younger members of the claim group; and (c) the continued connection of the Nyangumarta people to the claim area has been underpinned by acknowledgement and observance of a normative system of law and custom. During its assessment process, the State of Western Australia engaged an independent expert anthropologist to assess the connection material. In the meantime further material was provided by the applicants from October 2006 until December 2008. The affidavit of Mr Mathews filed on behalf of the applicants exhibited the report of Dr Smith with certain deletions designed to protect confidentiality. This was only part of the connection material provided by the applicants to the State of Western Australia. Excluding the seven appendices the report ran to 240 pages. It is a comprehensive discussion of each of the elements together with supporting evidence which the applicants would need to prove at a trial to secure a native title determination. The affidavit material amply demonstrates not only that the State of Western Australia gave detailed and comprehensive consideration to the applicants' case, but also that the applicants have a strong basis for the determination of native title sought.


case_text: Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 the issue was addressed thus: ... There is a question as to how far a State party is required to investigate in order to satisfy itself of a credible basis for an application. One reason for the often inordinate time taken to resolve some of these cases is the overly demanding nature of the investigation conducted by State parties. The scope of these investigations demanded by some States is reflected in the complex connection guidelines published by some States. The power conferred by the Act on the Court to approve agreements is given in order to avoid lengthy hearings before the Court. The Act does not intend to substitute a trial, in effect, conducted by State parties for a trial before the Court. Thus, something significantly less than the material necessary to justify a judicial determination is sufficient to satisfy a State party of a credible basis for an application. As a result of my recurring concern with the undue burden placed upon applicants in cases resulting in consent determinations, I wrote to the parties prior to the hearing raising this concern in relation to the volume of material provided by the applicants in the present case. The State responded with a helpful and constructive submission which explained first, that in the recent Central Desert application filed by the Birriliburu People, the report provided by the representative body was short and targeted, and was used as a model report at the connection workshop conducted by the State at the end of 2008, and second, that the detail of the report in this case was provided by the applicants as a matter of their choice. It is to be hoped that the State will give careful consideration in future matters under s 87 and s 87A to easing the present unnecessary burden either placed on or assumed by native title applicants. On the material before the Court it is clearly appropriate to make the orders and the determination sought by the parties. It is now necessary to consider the proposed determination that the Nyangumarta Warrarn Aboriginal Corporation (the Corporation) be the trustee of the native title. Section 56 of the Act relevantly provides: Trust determination (1) One of the determinations that the Federal Court must make is whether the native title is to be held in trust, and, if so, by whom. Steps in making determination (2) The Federal Court is to take the following steps in making the determination: (a) first, it must request a representative of the persons it proposes to include in the determination of native title as the native title holders (the common law holders ) to indicate whether the common law holders intend to have the native title held in trust by: (i) nominating, in writing given to the Federal Court within a specified period, a prescribed body corporate to be trustee of the native title; and (ii) including with the nomination the written consent of the body corporate; and (b) secondly, if the common law holders give the nomination within the period, the Federal Court must determine that the prescribed body corporate is to hold the rights and interests from time to time comprising the native title in trust for the common law holders; and (c) thirdly, if the common law holders do not give the nomination within the period, the Federal Court must determine that the rights and interests are to be held by the common law holders. Native title held in trust (3) On the making of a determination under paragraph (2)(b), the prescribed body corporate holds, in accordance with the regulations, the rights and interests from time to time comprising the native title in trust for the common law holders. One of Mr Matthews' affidavits proves that the Corporation was registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) on 11 March 2009 and was thus a prescribed body corporate for the purposes of ss 56(2) and (3) (see reg 4(1) of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (the Regulations). Section 56(3) of the Act requires that the Corporation holds the native title rights and interests in accordance with the Regulations. I am satisfied that this is so. The rule book of the Corporation was tendered in evidence and rule 5.2.2 satisfies the requirement of reg 4(2)(a), rule 3(c)(i) satisfies the requirement of reg 4(2)(b), and rules 3(c)(i) and (ii) satisfy the requirements of reg 6(1). The Nyangumarta People filed a written nomination of the Corporation on 22 May 2009 in accordance with s 56(2)(a)(i) of the Act. The Corporation consented to the nomination and filed a written consent dated 22 May 2009 in accordance with s 56(2)(a)(ii) of the Act.


case_text: think it is quite clear that the bankrupt's possession of the property beyond completion of the contract was as a licensee of, and not as a tenant from, the applicants and that that situation did not change at any time before the date of bankruptcy. My reasons for being of this view are as follows: (1) The circumstances in which the right of possession was granted as a vendor, from the purchaser, of the property where the common intention of the parties, so far as it can be discerned from the relevant terms of the contract, was to allow the vendor time (six months) to remove his chattels from the property; hence the nominal 'rent' of $50 per week. True, there was no evidence as to what a market rent would be, but having regard to the purchase price of the property ($850,000), the improvements and the business being carried on from the property, 'rent' of $50 per week could not be characterised as anything but 'nominal'. (2) The terms of Special Condition 5 (see [10] above), in particular: (i) The use of the word 'rent' in the first sentence has no characterisation consequences of its own; for example, many chattel bailments use the word 'rent' to describe the consideration payable for the bailment when, strictly speaking, it is a hiring charge. The first sentence is totally neutral in indicating whether what is granted is a licence or a lease. (ii) More importantly, the right of the purchaser (the applicants) to enter onto the property is unlimited as to the purpose, frequency and time of entry. It is inconsistent with any claim or entitlement of the vendor (the bankrupt) to exclusive possession, which is the point of distinction between a licensee and a tenant: see Radaich v Smith [1959] HCA 45 ; (1959) 101 CLR 209 at 222 per Windeyer J; Street v Mountford [1985] UKHL 4 ; [1985] AC 809 at 827A E per Lord Templeman with whom the other of their Lordships agreed. (iii) The third sentence, which provides that if the vendor does not vacate the property 'at the expiration of six months (following settlement) the rental shall increase to $1,000 per week plus GST', informs the purpose of allowing the vendor to remain in possession beyond completion time in which to remove his chattels from the property and an ongoing weekly penalty if that task is not completed within six months of completion of the contract. These are the words of license, not demise and no covenant for quiet enjoyment could be implied.


case_title: Street v Mountford [1985] UKHL 4 ; [1985] AC 809


case_text: a contravention of s 52 of the TP Act is made out, the Court clearly has power in appropriate circumstances to grant the injunctive relief which is applicable, and similarly has power under s 21 of the Federal Court of Australia Act 1976 (Cth) to grant the declaratory relief which is, or may be, appropriate, such jurisdiction having been expressly conferred by s 86 of the TP Act: see eg Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564. See also s 163A of the TP Act. Plainly enough, for conduct to contravene s 52, it must convey a representation which is misleading or deceptive, or is likely to mislead or deceive. Putting aside the issue concerning the ticket machines, the council asserts that each of the ACF Notices conveyed the following representations: that the ACF Notices were issued or authorised by the Council, or that ACF was associated or affiliated with the Council; that the ACF Notices were issued for the recovery of a fine, expiation fee or other penalty imposed by law; that ACF was authorised by law to recover a fine, expiation fee or other penalty imposed by law; and that the claim in the ACF Notice was not in respect of an alleged contractual debt. As the above discussion indicates, the dispute in this case turns upon whether those alleged representations were made. Neither ACF nor Park Fast have contended that the ACF Notices, if they conveyed those representations, were true. The case therefore is whether or not those representations were made.


case_text: or not a representation is made, and is misleading or deceptive or likely to mislead or deceive, is a matter to be determined objectively by the Court. Conduct is misleading or deceptive only if it induces or is capable of inducing error; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 ( Parkdale ). The objective judgment is made in relation to the persons or class of persons who may be mislead by the relevant conduct. In Parkdale Gibbs CJ said at 199: Section 52 does not expressly state what persons or class of persons should be considered as the possible victims for the purpose of deciding whether conduct is misleading or deceptive or likely to mislead or deceive. It seems clear enough that consideration must be given to the class of consumers likely to be affected by the conduct. Although it is true, as has often been said, that ordinarily a class of consumers may include the inexperienced as well as the experienced, and the gullible as well as the astute, the section must in my opinion by [sic] regarded as contemplating the effect of the conduct on reasonable members of the class. The heavy burdens which the section creates cannot have been intended to be imposed for the benefit of persons who fail to take reasonable care of their own interests. What is reasonable will or [sic] course depend on all the circumstances. It is not necessary to prove that the conduct in question actually deceived or mislead anyone: Parkdale at 198 ; Taco Co of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136 ; (1982) 42 ALR 177 ( Taco ). Conduct is likely to mislead or deceive if there is a real and not a remote possibility of it doing so. The person in receipt of the representation must labour under some error: Taco at 200 . In reaching such a conclusion, it is appropriate to ignore assumptions that a member of the public may make which are extreme or fanciful. It is necessary to consider the likely reaction to the representations by ordinary or reasonable members of the class of persons to whom the representation is directed: Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45 ( Campomar ). In Parkdale it was made plain that, in assessing objectively the effect of a representation, there may be more than one reasonable response in any given circumstance. It is necessary to have regard to the personal capacity and experience of different people, acting reasonably. In Campomar at 87, the High Court said: The initial question which must be determined is whether the misconceptions, or deceptions, alleged to arise or to be likely to arise are properly to be attributed to the ordinary or reasonable members of the classes of prospective purchasers.


case_text: or not a representation is made, and is misleading or deceptive or likely to mislead or deceive, is a matter to be determined objectively by the Court. Conduct is misleading or deceptive only if it induces or is capable of inducing error; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 ( Parkdale ). The objective judgment is made in relation to the persons or class of persons who may be mislead by the relevant conduct. In Parkdale Gibbs CJ said at 199: Section 52 does not expressly state what persons or class of persons should be considered as the possible victims for the purpose of deciding whether conduct is misleading or deceptive or likely to mislead or deceive. It seems clear enough that consideration must be given to the class of consumers likely to be affected by the conduct. Although it is true, as has often been said, that ordinarily a class of consumers may include the inexperienced as well as the experienced, and the gullible as well as the astute, the section must in my opinion by [sic] regarded as contemplating the effect of the conduct on reasonable members of the class. The heavy burdens which the section creates cannot have been intended to be imposed for the benefit of persons who fail to take reasonable care of their own interests. What is reasonable will or [sic] course depend on all the circumstances. It is not necessary to prove that the conduct in question actually deceived or mislead anyone: Parkdale at 198 ; Taco Co of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136 ; (1982) 42 ALR 177 ( Taco ). Conduct is likely to mislead or deceive if there is a real and not a remote possibility of it doing so. The person in receipt of the representation must labour under some error: Taco at 200 . In reaching such a conclusion, it is appropriate to ignore assumptions that a member of the public may make which are extreme or fanciful. It is necessary to consider the likely reaction to the representations by ordinary or reasonable members of the class of persons to whom the representation is directed: Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45 ( Campomar ). In Parkdale it was made plain that, in assessing objectively the effect of a representation, there may be more than one reasonable response in any given circumstance. It is necessary to have regard to the personal capacity and experience of different people, acting reasonably. In Campomar at 87, the High Court said: The initial question which must be determined is whether the misconceptions, or deceptions, alleged to arise or to be likely to arise are properly to be attributed to the ordinary or reasonable members of the classes of prospective purchasers. It is plain enough, also from Campomar at [106], that it is not sufficient for the conduct to cause confusion for it to be misleading or deceptive. That is not a sufficient level of error on which to base a finding that s 52 has been breached. The question is whether a class of the potential target audience, approaching the communication reasonably, would be likely to be misled or deceived: see Taco at 181 ; Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 88. There is some debate about whether the relevant class must be "significant" in number. I do not need to explore that because, as appears below, I find that the relevant class was significant in number.


case_text: is likely to mislead or deceive if there is a real and not a remote possibility of it doing so. The person in receipt of the representation must labour under some error: Taco at 200 . In reaching such a conclusion, it is appropriate to ignore assumptions that a member of the public may make which are extreme or fanciful. It is necessary to consider the likely reaction to the representations by ordinary or reasonable members of the class of persons to whom the representation is directed: Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45 ( Campomar ). In Parkdale it was made plain that, in assessing objectively the effect of a representation, there may be more than one reasonable response in any given circumstance. It is necessary to have regard to the personal capacity and experience of different people, acting reasonably. In Campomar at 87, the High Court said: The initial question which must be determined is whether the misconceptions, or deceptions, alleged to arise or to be likely to arise are properly to be attributed to the ordinary or reasonable members of the classes of prospective purchasers. The relevant section of the public must therefore be identified, and the context in which the representation was made must be considered. Whilst all persons must be considered, conduct must be tested against ordinary or reasonable members of the class and not those whose approach to the communication is fanciful or extreme: Campomar at 86-7. The question is therefore whether there is a class of persons who are likely to have received an ACF Notice (for it was not suggested by the Council that persons who had not received an ACF Notice might be misled by such a notice) and who reasonably understood that it was issued or authorised by the Council; or that ACF was associated or affiliated with the Council; or that the notice was issued for recovery of a fine, expiation fee or other penalty imposed by law; or that ACF was authorised by law to recover a fine, expiation fee or other penalty imposed by law; or finally that the claim in the ACF Notice was not in respect of a claimed contractual debt. It is plain enough, also from Campomar at [106], that it is not sufficient for the conduct to cause confusion for it to be misleading or deceptive. That is not a sufficient level of error on which to base a finding that s 52 has been breached. The question is whether a class of the potential target audience, approaching the communication reasonably, would be likely to be misled or deceived: see Taco at 181 ; Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 88. There is some debate about whether the relevant class must be "significant" in number. I do not need to explore that because, as appears below, I find that the relevant class was significant in number. Of course, any notice by ACF based upon breach of Park Fast's parking conditions necessarily had certain content. But there is no good reason offered for why the name Adelaide City Fines was chosen, as I do not accept Mr Lester's explanation for why it was chosen. There is no monopoly in the words Adelaide City. But here, ACF or its promoters selected a name which had those words and a descriptive noun in its name which carries particular connotations, but did so to enter a field of activity in which the Council for many years had carried on the function of imposing fines by its Expiation Notices: cf Aerospatiale Societe Nationale Industrielle v Aerospatiale Helicopters Pty Ltd (1986) 11 FCR 37. The general layout and presentation of the first ACF Notice reflects closely that of the first Expiation Notice. It did not need to do so. The earlier draft document, contrary to Mr Lester's evidence, clearly was prepared by adopting the first Expiation Notice and I infer that the first ACF Notice evolved from that draft. There is no other explanation for the choice of the general layout and presentation of the first ACF Notice. Consequently, that intention supports an inference that it was effectuated so as to lead to the contravention alleged: see Campomar at [33]; Interlego AG v Croner Trading Pty Ltd [1992] FCA 624 ; (1992) 39 FCR 348 per Gummow J at 394; Telmak Teleproducts (Australia) Pty Ltd v Coles Myer Ltd [1989] FCA 272 ; (1989) 89 ALR 48 at 69; Apand Pty Ltd v The Kettle Chip Company Pty Ltd (1994) 52 FCR 474 at 496. Indeed, in Nylex Corp Ltd v Sabco Ltd (1987) ATPR 40-752 at 48,179 Woodward J said where there is clear evidence of an intention to deceive, a court will readily find a breach of s 52 of the TP Act.


case_text: is plain enough, also from Campomar at [106], that it is not sufficient for the conduct to cause confusion for it to be misleading or deceptive. That is not a sufficient level of error on which to base a finding that s 52 has been breached. The question is whether a class of the potential target audience, approaching the communication reasonably, would be likely to be misled or deceived: see Taco at 181 ; Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 88. There is some debate about whether the relevant class must be "significant" in number. I do not need to explore that because, as appears below, I find that the relevant class was significant in number.


case_text: is not necessary to prove an intention to mislead or deceive. However, proof of an intention to deceive has a very strong evidentiary value: see Interlego AG v Croner Trading Pty Ltd [1992] FCA 624 ; (1992) 39 FCR 348 at 394. Hence, the intention may be particularly inferred by the copying of a symbol or part only of a symbol used by another party: Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 at [121]. Of course, any notice by ACF based upon breach of Park Fast's parking conditions necessarily had certain content. But there is no good reason offered for why the name Adelaide City Fines was chosen, as I do not accept Mr Lester's explanation for why it was chosen. There is no monopoly in the words Adelaide City. But here, ACF or its promoters selected a name which had those words and a descriptive noun in its name which carries particular connotations, but did so to enter a field of activity in which the Council for many years had carried on the function of imposing fines by its Expiation Notices: cf Aerospatiale Societe Nationale Industrielle v Aerospatiale Helicopters Pty Ltd (1986) 11 FCR 37. The general layout and presentation of the first ACF Notice reflects closely that of the first Expiation Notice. It did not need to do so. The earlier draft document, contrary to Mr Lester's evidence, clearly was prepared by adopting the first Expiation Notice and I infer that the first ACF Notice evolved from that draft. There is no other explanation for the choice of the general layout and presentation of the first ACF Notice. Consequently, that intention supports an inference that it was effectuated so as to lead to the contravention alleged: see Campomar at [33]; Interlego AG v Croner Trading Pty Ltd [1992] FCA 624 ; (1992) 39 FCR 348 per Gummow J at 394; Telmak Teleproducts (Australia) Pty Ltd v Coles Myer Ltd [1989] FCA 272 ; (1989) 89 ALR 48 at 69; Apand Pty Ltd v The Kettle Chip Company Pty Ltd (1994) 52 FCR 474 at 496. Indeed, in Nylex Corp Ltd v Sabco Ltd (1987) ATPR 40-752 at 48,179 Woodward J said where there is clear evidence of an intention to deceive, a court will readily find a breach of s 52 of the TP Act.


case_text: is not necessary to prove an intention to mislead or deceive. However, proof of an intention to deceive has a very strong evidentiary value: see Interlego AG v Croner Trading Pty Ltd [1992] FCA 624 ; (1992) 39 FCR 348 at 394. Hence, the intention may be particularly inferred by the copying of a symbol or part only of a symbol used by another party: Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 at [121].


case_text: similarities in the fields in which the two businesses operate obviously will increase the likelihood of deception if the names and symbols are similar. Subsequent subtle changes to name or get-up are unlikely to correct the deception of members of the public who have already been exposed to the initial get-up. To the contrary, the impression originally gained might be reinforced by the repetition of a closely similar message not corrected: see Duracell Australia Pty Ltd v Union Carbide Australia Ltd [1988] FCA 40 ; (1988) 10 ATPR 49 ,856 at 49,861. However, that is a question of fact to be determined in the particular circumstances.


case_text: is also important to note that it is the extent of scrutiny which may be given to a communication by members of the target audience which may inform the question whether s 52 has been breached by the use of a symbol which may create the same immediate impression as the symbol used by the body with the established representation, and established reputation, notwithstanding differences which are apparent when the two are inspected closely: The Kettle Chip Company Pty Ltd v Apand Pty Ltd [1993] FCA 546 ; (1993) 46 FCR 152 at 161-2; Sterling Winthrop Pty Ltd v R & C Products Pty Ltd (1994) ATPR 41-308 at 42,126 and 42,133. CONSIDERATION The ACF Notices


case_title: Sterling Winthrop Pty Ltd v R & C Products Pty Ltd (1994) ATPR 41-308


case_text: course, any notice by ACF based upon breach of Park Fast's parking conditions necessarily had certain content. But there is no good reason offered for why the name Adelaide City Fines was chosen, as I do not accept Mr Lester's explanation for why it was chosen. There is no monopoly in the words Adelaide City. But here, ACF or its promoters selected a name which had those words and a descriptive noun in its name which carries particular connotations, but did so to enter a field of activity in which the Council for many years had carried on the function of imposing fines by its Expiation Notices: cf Aerospatiale Societe Nationale Industrielle v Aerospatiale Helicopters Pty Ltd (1986) 11 FCR 37. The general layout and presentation of the first ACF Notice reflects closely that of the first Expiation Notice. It did not need to do so. The earlier draft document, contrary to Mr Lester's evidence, clearly was prepared by adopting the first Expiation Notice and I infer that the first ACF Notice evolved from that draft. There is no other explanation for the choice of the general layout and presentation of the first ACF Notice. Consequently, that intention supports an inference that it was effectuated so as to lead to the contravention alleged: see Campomar at [33]; Interlego AG v Croner Trading Pty Ltd [1992] FCA 624 ; (1992) 39 FCR 348 per Gummow J at 394; Telmak Teleproducts (Australia) Pty Ltd v Coles Myer Ltd [1989] FCA 272 ; (1989) 89 ALR 48 at 69; Apand Pty Ltd v The Kettle Chip Company Pty Ltd (1994) 52 FCR 474 at 496. Indeed, in Nylex Corp Ltd v Sabco Ltd (1987) ATPR 40-752 at 48,179 Woodward J said where there is clear evidence of an intention to deceive, a court will readily find a breach of s 52 of the TP Act.


case_title: Telmak Teleproducts (Australia) Pty Ltd v Coles Myer Ltd [1989] FCA 272 ; (1989) 89 ALR 48


case_title: Apand Pty Ltd v The Kettle Chip Company Pty Ltd (1994) 52 FCR 474


case_title: Nylex Corp Ltd v Sabco Ltd (1987) ATPR 40-752


case_outcome: considered

case_text: Chief Federal Magistrate was alleged to have erred in failing to grant constitutional writ relief or prerogative relief on the following bases; first, that the Tribunal had committed a jurisdictional error in failing correctly to identify the appellant's claims and to apply the decision in Appellant S395 of 2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473. Secondly, that in reaching its conclusion the Tribunal failed to give the appellant a notice in writing under s 424A(1) of the Migration Act 1958 (Cth) of information which it took into account which was not information that fell within an exception found in subs (3) of that section. The information was characterised in two ways; first, that the appellant in her protection visa application had not made clear to the Tribunal how she would practice Falun Gong if she returned to China; and secondly, that while she had said that she had a fear of persecution, on the other hand she had offered very little in support of that. Each type of information was said to be information within the meaning of s 424A(1) in the manner I will explain in more detail shortly. The third ground was that the Tribunal had erred in the exercise of its discretion under s 426A when it failed to consider making contact with or contacting the appellant after she had failed to attend a hearing in circumstances where previously she had advised the Tribunal that she did intend to attend. The appellant had arrived in Australia in February 1997. In August 2000 she had lodged an application for a protection visa with the Minister. A delegate of the Minister refused to grant her a protection visa in September 2000 and she applied for a review of that decision on 3 October 2000. The basis of her claim was set out in a statement which she made in the application for the visa. She said that she had become a practitioner of Falun Gong in May 1998 in Australia. She pointed to the fact that as far as she knew, all Falun Gong practitioners suffered persecution in China and that many of them had been jailed, many detained and those who might not be detained or arrested could be suffering mentally from discrimination and could have been discriminated against by the Chinese authorities in their employment or through some forms of administrative punishment. In her claims she explained that she attended a Falun Dafa Australian experience sharing convention in May 1998 and thereafter became attracted to the practice of Falun Gong. She said that she claimed to have gone to Darling Harbour every Saturday and that she had read books by a master of Falun Gong and obeyed the other laws of that set of beliefs. She claimed that by practising Falun Gong her health became better and she had received mental cultivation and enlightenment. She also claimed to have attended another Falun Dafa Australian experience sharing conference in May 1999 and then in May 2000, to have participated in what she said was the world's first Falun Dafa day in Australia. On that occasion she said that with approximately 300 other practitioners she had walked from Hyde Park in Sydney to Darling Harbour and had held up banners with laudatory statements about Falun Dafa. In Appellant S395 of 2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 at 489 [40] McHugh and Kirby JJ said: 'Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to State sponsored or condoned discrimination in social life and employment. Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, a person persecuted cannot reasonably be expected to tolerate it. But persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality.' The real problem in this case is that the appellant made claims that she was a Falun Gong practitioner, that she wished to practice if she were to return to China and that she would be placed at risk. But she had failed to satisfy the Tribunal on the material she placed before it of the way in which she was proposing to practice if returned, so that it could be apparent whether or not she would be put in a position on either of the two horns of the dilemma which she presented to the Tribunal or of being a person who would be forced to modify the way in which she practised her beliefs to escape coming to the attention of the authorities. While other decision makers may have viewed her claims differently from the way in which the Tribunal did, it was for the Tribunal to be satisfied of them or not. I see no error in the way in which it exercised its function of review that affected the jurisdictional foundation on which the Tribunal proceeded. I am of opinion that the Tribunal did look at what has been called the dilemma, albeit without expressly identifying it in the passage to which I have referred, in which it ultimately said that it was not clear how the appellant would practice Falun Gong were she returned to China and, therefore, it could not be clear to the Tribunal whether she would be affected at all and, if so, in what manner.


case_text: first function of the Tribunal in a review of a decision whether to grant a protection visa is to identify the claims made by the applicant for review. Correct identification of a claim is essential to enable the Tribunal effectively to exercise the jurisdiction which the Parliament has confided it to exercise under s 414(1) of the Act: see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 at 394-395 [26] - [27] per Gummow and Callinan JJ. What the Tribunal did was to set out in a section headed, 'Claims and Evidence', the fact that it had before it the Department's file. It then referred to the original application and to her claim that she feared she may be persecuted if she returned to China as she now practised Falun Gong and that she had been aware that many Falun Gong practitioners in China had been arrested. The Tribunal recorded that the appellant had started practising Falun Gong in May 1998 and had attended the Convention at that time. It referred to her insisting on attending Darling Harbour every Saturday to perform exercises and that she read books by the founder of Falun Gong and obeyed Falun Gong's laws. It recorded that she had attended other public outing of the Falun Gong organisation in Australia.