case_text: In Chen v New South Wales Police Service (2003) 59 IPR 431 Jacobson J dealt with eight offences of infringement of copyright contrary to ss 132(1)(b) and (2A)(a) of the Act. In that case the offender had pleaded guilty before the magistrate to the eight offences and was then placed on a good behaviour bond for five years and ordered to pay a pecuniary penalty totalling $8,000. The penalty was payable in monthly instalments over a protracted period. The offender had sold counterfeit DVDs at a market on four occasions and had been found in possession of over 400 infringing CDs. And, at her brother's premises there were music CDs, DVDs, blank disks, paperwork and business cards in her name. She also had about 50 DVDs and two computers on which were found files of infringing films. The offender in that case was a single mother whose son had an illness and she had little means. His Honour came to the view that the penalty imposed was one which was proper and refused leave to appeal against the sentence. 60 In this matter, although Mr Vu's period of offending stretched over a considerable period of about 10 months, it involved him being a distributor, rather than a manufacturer, of the infringing copies. I have had regard to his genuine contrition, all of the circumstances that I have described more fully above, including his early plea of guilty, his partial co-operation, and his invidious position (which I do not regard, and which he does not ask me to regard, as an excuse but as a circumstance in which the offending occurred). I am satisfied that he is a man who has done something which he knows was inappropriate and he is very unlikely to re-offend. It would not be appropriate to sentence him to prison. Having regard to his means and the impact on him financially, the totality of the circumstances, including his criminality and the need for general deterrence, I am of opinion that I should allow the appeal. 61 The appropriate penalty which I consider should be imposed is a 3 year good behaviour bond with a self-surety in the sum of $1,000 conditional on Mr Vu paying a penalty of $5,000. He has indicated that he expects to be able to pay this by instalments of $200 per month commencing in November 2007. I have had regard to the fact that the police acknowledge that such a penalty is one within the range properly open to me. I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 28 September 2007 Counsel for the Appellant: T Luckman Solicitor for the Appellant: Ledinh Lawyers Counsel for the Respondent: C Ng Solicitor for the Respondent: Commonwealth Director of Public Prosecutions Date of Hearing: 20 August 2007 Date of Judgment: 20 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1508.html


case_outcome: followed

case_text: In determining the appropriate sentence to be imposed, the Court engages in a process known as instinctive synthesis. It is impossible to have regard to each of the matters which s 16A(2) requires be taken into account separately or to assign to each of them a particular figure or discount applicable to the offender, having regard to the particular circumstances each subsection addresses. Rather, the Court has to approach the determination of a sentence by taking into account all of the matters that are relevant, including those to which s 16A(2) refers, in addition to all other matters bearing on the sentence that will be imposed in all the circumstances of the offence or offences. In general, the sentencing court will reach a conclusion that a particular penalty is the one that should be imposed after weighing all of the relevant factors: Markarian v R [2005] HCA 25 ; (2005) 215 ALR 213 at 223 [37] ; [2005] HCA 25 ; (2005) 79 ALJR 1048 at 1057 [37] per Gleeson CJ, Gummow, Hayne and Callinan JJ. 58 Because sentencing is a matter involving both an application of the general rule to be found in the statute imposing the penalty for the offence which creates it, and an assessment of the individual culpability of the defendant upon whose plea or finding of guilt a court is adjudicating, no other case can be a precise precedent for the appropriate penalty. Nonetheless, the courts must have regard to imposing penalties that are transparent and consistent and which the community can regard as an appropriate punishment having regard to the penalty which the Parliament has seen fit to impose as the maximum in the particular case. The mere fact that there is a maximum is not, of course, the only criterion by which the court imposes an appropriate penalty.


case_outcome: distinguished

case_title: Pontello v Ceselli (1989) 16 IRP 645

case_text: In Pontello v Ceselli (1989) 16 IRP 645 Wilcox J, on a guilty plea, sentenced an offender who had been knowingly concerned in making and possessing numerous illegal copies of video films for the purposes of commercial distribution. He had also been convicted and fined for offences under the Trade Marks Act 1955 (Cth) arising from the same circumstances. His Honour said ( Ceselli 16 IPR at 647): 'It is, however, appropriate for me to emphasise that the statute does provide for a gaol term for contraventions of s 132(1) and 132(2A). I am informed that, so far as counsel for the informant is aware, no person has yet been gaoled for a breach of those provisions; but the fact that a gaol term is provided by the legislation does indicate the seriousness with which the offences have been regarded by the legislature. It may well be that, in a serious case of multiple infringement of these provisions, it will be appropriate for a gaol sentence to be pronounced.' 36 The offender had made 35 copies of one title, 44 of another out of a total of 237 pirate tapes that had been seized. He had elaborate recording equipment at his home which enabled him to make multiple copies of individual tapes. Again that is distinct from the present case, albeit the defendant there was a video shop proprietor. 53 Nonetheless, as was said in 1989 by Wilcox J in Ceselli 16 IPR at 647 and by Sheppard J in Giannotis 16 IPR at 186, the time must surely come in this country where custodial sentences are appropriate for offences involving sale or hire of counterfeit DVDs and similar works. There are, however, factors in this case which have inclined me to the opinion that that is not an appropriate penalty in this matter, as I will explain below.


case_outcome: discussed

case_title: Pontello v Giannotis (1989) 16 IPR 174

case_text: In a related case, Pontello v Giannotis (1989) 16 IPR 174 at 186 Sheppard J observed that there was no doubt that piracy in the video industry was rife and that it was something that was well known. He referred to Wilcox J's remarks quoted above and also said that there was no doubt that this species of crime is often difficult to detect. Sheppard J said that the legislature had obviously taken a serious view of the offences, referring to the amendments that had been made in 1986 which provided for substantial increases in the penalties. Those penalties, I understand, obtained to the time of the present offences but have now been replaced by the sections to which I referred at the commencement of this judgment. As his Honour also noted (16 IPR at 187), the offence under s 132(2A)(a) was a serious one. DVDs have largely replaced videos as a means of viewing films. 53 Nonetheless, as was said in 1989 by Wilcox J in Ceselli 16 IPR at 647 and by Sheppard J in Giannotis 16 IPR at 186, the time must surely come in this country where custodial sentences are appropriate for offences involving sale or hire of counterfeit DVDs and similar works. There are, however, factors in this case which have inclined me to the opinion that that is not an appropriate penalty in this matter, as I will explain below.


case_outcome: referred to

case_title: R v Carter (1992) 13 Cr App R (S) 576

case_text: A number of jurisdictions have regarded the conduct of those who manufacture, sell or hire counterfeit works such as DVDs as meriting imprisonment. For example, in R v Carter (1992) 13 Cr App R (S) 576, the English Court of Appeal, Criminal Division dealt with a defendant who had been found in possession of over 200 infringing copies, 500 blank video tapes and three video recorders. Lord Lane CJ, Kennedy and Jowitt JJ noted that a suspended sentence of nine months imprisonment had been imposed and said ( Carter 13 Cr App R (S) at 377): '... [T]o make and distribute pirate copies of films is to steal from the true owner of the copyright, the property for which he has to expend money in order to possess it. It is an offence really of dishonesty.' I agree. In R v Kemp (1995) 16 Cr App R (S) 941 at 943 Russell LJ, Turner and Hooper JJ said: 'Offences of counterfeiting are offences which normally attract at least a short sentence of imprisonment. They are difficult, time consuming and expensive to detect. The owners of copyrights are entitled to be protected against their unlawful exploitation. They are entitled to have their commercial reputation protected against those who would seek unlawfully to damage it.'


case_title: R v Duckett [1998] 2 Cr App R (S) 59

case_text: And, in R v Duckett [1998] 2 Cr App R (S) 59 at 60 Jowitt and Astill JJ sitting as the Court of Appeal, Criminal Division said: 'Infringement of copyright is widespread. It does, in an ethical sense, involve stealing other men's property, and in its cumulative effect is able to cause serious damage to legitimate commercial and proprietary interests. Although the applicant did not engage in this dishonest business in a substantial way, his activities and those of many like him contribute to the damage to which we have referred. A serious view is to be taken of the distribution by way of business and the recording for such distribution of pirated material which, if bought legitimately, would cost substantial sums of money.' 40 There, the appellant had been sentenced to 27 months imprisonment, in circumstances in which he actually manufactured illegal CD-ROM disks and was a ring leader of seven defendants in a counterfeiting business. Mr Vu's criminality is not of that order. 41 There are no other offences that are required or permitted to be taken into account.


case_title: R v Kemp (1995) 16 Cr App R (S) 941


case_text: I am of opinion Mr Vu was genuine in pleading guilty and that he promptly acknowledged that he had done something that was wrong. He has not made any attempt to seek to excuse himself from, or to evade, his responsibility for what he did. His statement to the Parole Service that he would pay whatever penalty the court imposed on him demonstrated that. I am quite satisfied that, in his plea of guilty at the earliest opportunity, he was doing what a basically honest person who has made a stupid mistake and engaged in a series of foolish and dishonest criminal acts could be expected to do once the cold light of day had exposed him to a recognition of his own wrongdoing. As Howie J said giving the reasons of the New South Wales Court of Criminal Appeal in R v Sutton (2004) 41 MVR 40; [2004] NSWCCA 225 at [12] : 'This Court has pointed out, time and time again, that the strength of the Crown case is an irrelevant factor in determining the utilitarian value of the plea of guilty. The strength of the Crown case is relevant only to the evaluation of remorse and what weight should be given to that factor in determining the appropriate sentence.' 47 I am of opinion that this was a genuine guilty plea which Mr Vu made at the first available opportunity. Indeed, had Mr Vu been charged shortly after the first visits of the Federation officers, I am sure that his criminal conduct would have ceased then, although I cannot, and do not, take that into account. I reject the police's submission that I should give less than full weight to the plea of guilty. 48 Mr Vu did co-operate with the authorities to a degree, although, as the police pointed out, he made only admissions to hiring out copyright infringing DVDs and not to selling them to the Federation officers. It is not suggested that he concealed or hid any of the material which implicated him in his guilt for the offences. He readily made admissions relating to having purchased the counterfeit DVDs. He also pointed out to the police (when they executed the search warrant) where the counterfeit DVDs were and made admissions as to hiring them out. Although his co-operation was perhaps not as fulsome as his evidence has been today or his admissions to his Honour were, I find that he has co-operated to a significant degree with the authorities. There was evidence of some sales to the Federation officers. But, Mr Vu did not sell the counterfeits on any significant scale. Rather, the sales occurred infrequently from his stock of DVDs used primarily for the hire business. 49 Most significantly I must have regard to the deterrent effect that any sentence or order under consideration may have on Mr Vu. I am satisfied that Mr Vu knows he must be punished. The likelihood that he would re-offend is minimal to non-existent. 50 I am satisfied that the sentence I am to impose will adequately punish Mr Vu for his offences. In that regard I must have, as the police reminds me, regard to the strength of the police's case, the objective gravity of the offences, the need for general deterrence and the need for strong subjective deterrence. As I have said, the latter consideration is one which Mr Vu had accepted himself will be worked on him by a sentence of any kind. 56 Mr Vu has argued that the effect of imprisoning him even on weekend detention would be such as to work a very adverse result on his family. No doubt some embarrassment would be caused to him in having to explain to his children what he had done and why he was to spend time in gaol. His sense of shame at having to do this would be significant and would cause him considerable embarrassment. Nonetheless, the authorities make it clear that in approaching an assessment of the effect on Mr Vu's family and dependents I must interpret s 16A(2)(p) by having regard to whether these circumstances are exceptional: see R v Hinton [2002] NSWCCA 405 ; (2002) 134 A Crim R 286 at 293 [31] per Howie J with whom Wood CJ at CL and Sully J agreed. I am not satisfied that the matters on which Mr Vu relies are exceptional.


case_outcome: cited

case_text: In forming a judgment as to whether a receiver took all reasonable care as required by s 420A , it is necessary to have regard to the sale process adopted by the receiver. The issue to be determined is whether that process was not one where all reasonable care was taken to sell the property for its market value, whatever that value was, or alternatively for the best price reasonably obtainable ( Artistic Builders Pty Ltd v Elliott & Tuthill (Mortgages) Pty Ltd (2002) 10 BPR 19,565 at [126]). 54 The respondents contended that s 420A requires care to be taken in relation to the price at which any sale of property of a corporation is in fact made and imposes no obligation of care in relation to potential sales not made. On this basis they argued that s 420A had no relevance to the letter dated 5 May 2000 by which IHL's offer to purchase the 49 units was rejected.


case_text: The relevant authorities indicate that the general law duties of a receiver when exercising a power of sale are analogous to those of a mortgagee (see, for example, Expo International Pty Ltd (Receivers and Managers Appointed) (In Liq) v Chant [1979] 2 NSWLR 820). As I observed in Gomez v State Bank of NSW Ltd [2001] FCA 1059 at [10] , that duty is a duty to act in good faith, without wilfully or recklessly sacrificing the interests of the mortgagor. The principle underlying the duty is that of 'unconscionability' ( Hawkesbury Valley Developments Pty Ltd v Custom Credit Corporation Ltd (1995) NSW Conv R 55-731 per McLelland CJ in Eq).


case_outcome: considered

case_text: I am inclined to agree with the approach adopted in GE Capital Australia v Davis [2002] NSWSC 1146 ; (2002) 180 FLR 250, and approved in Ultimate Property Group Pty Ltd v Lord [2004] NSWSC 114 ; (2004) 60 NSWLR 646 and Florgale Uniforms Pty Ltd v Orders [2004] VSC 65 ; (2005) 51 ACSR 699, that the effect of s 420A is to substitute a statutory test of liability for the traditional test when determining whether a receiver or mortgagee has breached its general law duty in the exercise of a power of sale. However, the findings of fact made by me in this matter render it unnecessary for me to express a concluded view on this question. 52 As Dodds-Streeton J observed in Florgale Uniforms Pty Ltd v Orders at [410]: 'A breach of s 420A is not established merely because market value (where it exists) or the best price reasonably obtainable is not achieved. Rather, a breach of s 420A requires, in terms, a failure by the receiver to take all reasonable care to sell the property for not less than market value or the best price that is reasonably obtainable having regard to the circumstances existing when the property is sold.'


case_text: A further aspect of Deangrove's complaint regarding the 5 May 2000 letter is that Mr Buckby acted prematurely in rejecting IHL's offer outright on 5 May 2000 given the state of negotiations with Culley and Valemed. As the respondents did not hold a contract signed by Culley or Valemed for the purchase of the 49 units, it can be seen, with the benefit of hindsight, that a more cautious course of action might have been for Mr Buckby to avoid rejection of the IHL offer while letting IHL know that other parties were expressing interest in purchasing the units on terms more favourable to Deangrove. However, Mr Buckby is not to be criticised for seeking to bring IHL and Culley into competition as potential purchasers (see Forsyth v Blundell [1973] HCA 20 ; (1973) 129 CLR 477 per Mason J at 509). 67 I accept the evidence of Mr Buckby that as at 3 May 2000 he remained interested in negotiating with IHL in respect of the 49 units (albeit that he doubted IHL's capacity to complete) and did not intend to reject the possibility of further dealing with IHL. I further accept Mr Buckby's evidence that the purpose behind the letter dated 5 May 2000 was to encourage IHL to lift its offer for the 49 units and that he hoped IHL would come back with an offer which matched the superior Culley offer. As Deangrove itself stressed, IHL apparently had good reason to be interested in purchasing the 49 units; it had effectively paid a deposit on the units by causing Islands to allot 7 323 785 shares to a nominee of Deangrove. Additionally, it had paid significant amounts by way of interest to the Bank. I therefore accept that Mr Buckby had reasonable grounds for believing, as I find that he did, that if IHL genuinely wished to purchase the 49 units it would respond to the letter of 5 May 2000 with a counter offer. 68 In addition to their submissions on each aspect of Deangrove's complaint, the respondents contended that they are entitled to rely on the business judgment rule in s 180(2) of the Act. It is not necessary for me to express a concluded view on whether the rule in s 180(2) has an application in respect of the duty imposed by s 420A. Deangrove placed reliance on s 180 as well as on s 420A. I find that in authorising the sending of the letter of 5 May 2000 Mr Buckby made a business judgment within the meaning of s 180(3) of the Act. I am satisfied that, within the meaning of s 180(2) , he: (a) made the judgment in good faith for the proper purpose of seeking to maximise the amount to be received by Deangrove on the sale of the units; (b) did not have a personal interest in the subject matter of the judgment; (c) informed himself about the subject matter of the judgment to the extent that he reasonably believed to be appropriate; and (d) rationally believed that the judgment was in the best interests of Deangrove.


case_text: I am inclined to agree with the approach adopted in GE Capital Australia v Davis [2002] NSWSC 1146 ; (2002) 180 FLR 250, and approved in Ultimate Property Group Pty Ltd v Lord [2004] NSWSC 114 ; (2004) 60 NSWLR 646 and Florgale Uniforms Pty Ltd v Orders [2004] VSC 65 ; (2005) 51 ACSR 699, that the effect of s 420A is to substitute a statutory test of liability for the traditional test when determining whether a receiver or mortgagee has breached its general law duty in the exercise of a power of sale. However, the findings of fact made by me in this matter render it unnecessary for me to express a concluded view on this question. 51 Those findings of fact also render it unnecessary for me to form a concluded view on the difficult question of what the legislature intended the expression 'market value' to mean in s 420A(1)(a) (see Skinner v Jeogla Pty Ltd (2001) 37 ACSR 106 at [34]-[41] and GE Capital Australia v Davis at [116]). However, I respectfully agree with the view expressed by Spigelman CJ in Skinner v Jeogla Pty Ltd at [33] that: ' [t] he use of the word "otherwise" as the introductory words of s 420A(1)(b) indicates that the two paragraphs [ie of s 420A(1)] are intended to be both exhaustive and mutually exclusive.'


case_title: Gomez v State Bank of NSW Ltd [2001] FCA 1059


case_title: Hawkesbury Valley Developments Pty Ltd v Custom Credit Corporation Ltd (1995) NSW Conv R 55-731


case_text: Those findings of fact also render it unnecessary for me to form a concluded view on the difficult question of what the legislature intended the expression 'market value' to mean in s 420A(1)(a) (see Skinner v Jeogla Pty Ltd (2001) 37 ACSR 106 at [34]-[41] and GE Capital Australia v Davis at [116]). However, I respectfully agree with the view expressed by Spigelman CJ in Skinner v Jeogla Pty Ltd at [33] that: ' [t] he use of the word "otherwise" as the introductory words of s 420A(1)(b) indicates that the two paragraphs [ie of s 420A(1)] are intended to be both exhaustive and mutually exclusive.'


case_text: I am inclined to agree with the approach adopted in GE Capital Australia v Davis [2002] NSWSC 1146 ; (2002) 180 FLR 250, and approved in Ultimate Property Group Pty Ltd v Lord [2004] NSWSC 114 ; (2004) 60 NSWLR 646 and Florgale Uniforms Pty Ltd v Orders [2004] VSC 65 ; (2005) 51 ACSR 699, that the effect of s 420A is to substitute a statutory test of liability for the traditional test when determining whether a receiver or mortgagee has breached its general law duty in the exercise of a power of sale. However, the findings of fact made by me in this matter render it unnecessary for me to express a concluded view on this question. 55 I am inclined to doubt that the above contention reflects a proper reading of s 420A. The opening words of the section suggest that the section is concerned generally with the duty of a controller when exercising a power of sale in respect of property of a corporation. A controller will commonly act in the exercise of a power of sale well ahead of any actual sale of property and his or her conduct at that time may affect the price ultimately achieved for that property. Nonetheless, as Young CJ in Eq observed in Ultimate Property Group Pty Ltd v Lord at [69]: 'unless it can be demonstrated ... that the property in fact sold for under the market price, it is merely a case of injuria sine damnum [ie injury without damage].' 56 However, as I did not hear full argument on the proper construction of s 420A of the Act, I prefer to express no concluded view on the respondents' submissions. For the reasons set out below, assuming the applicability of s 420A to Mr Buckby's conduct in authorising the sending of the letter of 5 May 2000, I am not satisfied that any breach of the section by the respondents has been established. 57 As is mentioned in [16] above, Deangrove's case against the respondents was refined during the course of the hearing to an allegation concerning the sending by the respondents' solicitor, on Mr Buckby's instructions, of the 5 May 2000 letter (see [36] above). Deangrove alleged that Mr Buckby's conduct in authorising sending of the letter of 5 May 2000 gave rise to a breach of the respondents' duties for a number of reasons.


case_text: On 8 May 2008 I delivered reasons in Apotex Pty Ltd (formerly GenRx Pty Limited) v Les Laboratoires Servier (No 2) [2008] FCA 607 (' Apotex v Servier ') following Apotex Pty Ltd's ('Apotex') application to the Court in relation to a claim that Les Laboratoires Servier and Servier Laboratories (Australia) Pty Ltd (together 'Servier') had breached ss 52 , 53 and 55 of the Trade Practices Act 1974 (Cth) ('the Act') in the course of advertising and promoting one of its drugs, Coversyl. The subject matter was a stamp distributed to doctors by Servier which contained the phrase "brand substitution not permitted" and four advertisements (two banner advertisements and two full page advertisements). Apotex alleged that they each contained representations which were misleading or deceptive or likely to mislead or deceive under the Act. 2 My findings are set out in Apotex v Servier at [151]. For convenience and in summary those findings were: • that the stamp issued by Servier to doctors to be printed on prescriptions for Coversyl contains representations that are misleading or deceptive or likely to mislead or deceive pharmacists and patients within s 52 of the Act; • that Servier is liable for the stamp representations and has thereby contravened s 52 of the Act; • that representations contained in the first and second banner advertisements were not misleading or deceptive or likely to mislead or deceive medical practitioners; • that the first whole page advertisement caused to be published by Servier contained a representation as to improved stability that is likely to mislead or deceive medical practitioners within s 52 of the Act and Servier has thereby contravened s 52 of the Act; and • that the second whole page advertisement caused to be published by Servier contained a representation in relation to the indication for Coversyl for stable coronary artery disease that is likely to mislead or deceive medical practitioners within s 52 of the Act and Servier has thereby contravened s 52 of the Act. 3 The parties requested that they be given the opportunity to submit draft orders to give effect to the reasons for judgment and written submissions were filed. 4 The parties have agreed on the form of declarations. I will make those declarations. 18 I should note that while the detail of the calculation of costs is not for me, I do not necessarily accept or understand why Servier says that it has succeeded totally on the issue of patient confusion. I note in particular my findings in respect of the use of the stamp in Apotex v Servier at [151]. 19 The parties have indicated that they wish to make some further submissions on costs. Accordingly I will make the orders as currently determined and a specific costs order will follow. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 4 August 2008 Counsel for the Applicant: D K Catterns QC and S Goddard Solicitor for the Applicant: Freehills Counsel for the Respondents: A J L Bannon SC and A J Ryan Date of Hearing: 16 to 20 July 2007; 27 August 2007 Date of Final Submissions: 30 July 2008 Date of Judgment: 9 July 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1139.html


case_text: In relation to this aspect of the proposed orders I make the following observations. First, as to whether there should be orders or whether undertakings are sufficient: • The undertakings reflect what Apotex has called ' the Court's disapproval of the respondents' conduct ' and also reflect the outcome of the proceedings. • The undertakings, which are in place and have been since April 2007, are offered on a permanent basis. They are no longer made without admissions. They cover the same ground as the proposed injunctions concerning the representations; a matter referred to by Wilcox J in Aristocrat Technologies Australia Pty Ltd v Vidtech Gaming Services Pty Ltd (2006) 68 IPR 229 at [100]. • There is no suggestion that Servier has breached the undertakings since they were given in April 2007. • It is not for the Court to consider the potential forensic benefits to either party of making orders in the form of injunctions, rather than accepting undertakings. Secondly, as to the content of orders or undertakings: • The orders proposed by Apotex would restrain Servier from using any part of the advertisements. Those advertisements, especially with respect to the first full page advertisement, contained representations that were not found to be misleading or deceptive or likely to mislead or deceive. The proffered undertakings focus more on the actual representations that were found to be in contravention of s 52 of the Act. It is the representations that should be the subject of any proposed undertakings and not the advertisements themselves. On the other hand, the proposed undertakings seek only to restrict the placing of any further advertisements which make reference to "improved stability" or to the Europa trial. I see no reason to limit the undertaking or order to the placing of advertisements which contain only the offending words or expressions. If the undertakings are not extended to mirror the wording of Apotex's proposed revised orders that relate to the representations, I would be minded to make orders in those terms. 9 Apotex seeks orders for the destruction of a range of material. If the undertakings are in place, Servier cannot use the advertisements. I accept that it is appropriate that Servier destroy all copies of the offending advertisements and the offending stamp in its possession. I do not, however, have sufficient evidence to enable me to comprehend what is encompassed by the destruction of the other material referred to in Apotex's proposed order, such as instruction manuals, and I do not propose to extend an order for destruction to those materials. 10 The offending stamps are in the possession of third parties, doctors, who may continue to use them despite the provision of a different version of the stamp of which Apotex does not complain. It is appropriate that Servier take all reasonable steps to recall the offending stamps.


case_text: As to the stamp, I am not satisfied that the pharmacists or patients likely to have been confused by its use on a single prescription will currently have a false impression of the substitutability of Coversyl. The patient's doctor will either have continued to prevent substitution, or will have used the new stamp, or will have permitted substitution. The evidence of confusion on the part of a pharmacist was of transient confusion. I do not accept that pharmacists, who are fully aware of generic substitution, would require corrective advertising. There can reasonably be no current misapprehension as a result of the stamp ( Australian Competition and Consumer Commission v On Clinic Australia Pty Ltd (1996) 35 IPR 635 at 640 per Tamberlin J). 13 Further, the corrective advertising sought goes well beyond pharmacists and patients who may have seen a stamped prescription. The proposed corrective advertising, to all pharmacies that sell Coversyl, is likely to confuse those patients with the characteristics that led to the conclusion that they would be likely to have been confused by the stamp in the first place. 14 No reason has been advanced for not standing the matter over in relation to a damages inquiry. I will hear from the parties as to the course of that part of the proceedings.


case_text: While the Court has the power to make an order for corrective advertising, it must consider the nature and likely effect of the proposed advertising. The time which has elapsed since the publication of the misleading advertising will usually be relevant ( Makita (Australia) Pty Ltd v Black & Decker (Australasia) Pty Ltd [1990] FCA 166 ; (1990) 18 IPR 270 at [282] per Wilcox J; Hospitals Contribution Fund of Australia Ltd v Switzerland Australia Health Fund Pty Ltd (1987) 78 ALR 483 at 491 492 per Morling J). I do not see the benefit in corrective advertising. I do see that it is likely to create confusion. The stamp has been replaced. That itself is a form of correction. The advertisements were published in medical magazines. The offending representations formed only part of those advertisements. There is no evidence of the numbers of doctors who read those advertisements or of doctors who were misled by them. In my view corrective advertising, in particular in the form suggested, would create more confusion. The advertisements have not been published for some time and the public does not need current protection. It is unlikely that there are current incorrect or false impressions that require correcting and it is not, in my view, in the public interest to order corrective advertising.


case_title: Makita (Australia) Pty Ltd v Black & Decker (Australasia) Pty Ltd [1990] FCA 166 ; (1990) 18 IPR 270


case_outcome: applied

case_text: The first and second grounds in the applicant's notice of appeal relate to the Tribunal's construction of s 124 of the SRC Act and its determination that the applicant had not suffered a change in his patho physiological condition. The applicant's submissions were as follows: (i) The Tribunal, having accepted that the applicant did not suffer any symptoms from 1984 to 1998, failed to determine whether he suffered an impairment under s 4 of the SRC Act during this time; (ii) The Tribunal, despite having accepted that he was asymptomatic from 1984 to 1988 and did not have a gradual worsening during that time, found that the applicant did not have a new impairment and was therefore not entitled to compensation under the SRC Act ; (iii) The Tribunal erred in law by incorrectly applying the principles in Department of Defence v West (1998) 85 FCR 491 and Comcare Australia (Department of Defence) v Maida [2002] FCA 1284 ; (2002) 36 AAR 69 in determining whether there was a change in his patho physiological condition in about 1998 after becoming symptomatic. The Tribunal accepted that the applicant had continuing attacks since 1998, that he now took antibiotics and was periodically immobilised. The change in his patho physiological condition satisfied the definition in West and Maida of a new impairment and was compensable under the SRC Act . (iv) The Tribunal erred by not correctly applying the principles in West and Maida to consider and determine whether the applicant suffered a qualitative change to his condition in 1998 so as to constitute a new impairment which is compensable under the SRC Act . (v) The Tribunal erred in law by failing to consider whether the applicant suffered from a new impairment or impairments after becoming symptomatic in 1998, and whether the condition of cellulitis was the same or different from any new impairment that he may have suffered after 1998. 15 The applicant's third ground involved a contention that the Tribunal failed to state its reasons as required by s 43(2) and (2B) of the AAT Act . The applicant identifies four areas in relation to which the AAT allegedly failed to state its reasons. The reasons which the applicant alleged that the Tribunal was required to and failed to state, in the context of its findings and the circumstances of the case, are as follows: (i) Whether the cellulitis condition satisfied the definition of impairment under s 4 of the SRC Act between 1984 and 1998; (ii) The nature of the patho physiological condition and what, if any, impairment or impairments the applicant suffered after 1998; (iii) What change occurred to his condition after 1998, including: o whether he suffered any new impairment, o whether after 1998 he suffered any significant worsening to an impairment, o whether there was a change in the applicant's symptoms so as to produce or cause any new impairment which was not present prior to 1998. (iv) The nature of any qualitative change to the applicant's cellulitis condition or impairment in accordance with the principles in Maida and West . 16 The applicant does not press the parts of this ground of appeal relating to the Tribunal's alleged failure to state its reasons as to why cellulitis is not a skin condition and why it is not a condition affecting the lymphatic system. 17 The respondent submitted that the applicant's contention that he did not suffer impairment between 1984 and 1998 because he did not suffer symptoms during that period could not be maintained. It noted that the definition of "impairment" in s 4 of the SRC Act does not refer to symptoms and, relevantly, provides that impairment means damage of any bodily system or part. On the evidence accepted by the Tribunal, there was ample support for the conclusion that the applicant suffered an impairment in 1984 and therefore the conclusion reached by the Tribunal was plainly open to it. 18 The respondent also submitted that the applicant appeared to contend that if the Tribunal concluded that the applicant's condition did not gradually worsen, then the Tribunal was required to find that he suffered a new impairment. The respondent submitted that this argument was misconceived and that West in fact established that a new impairment would only arise where a change in patho physiological condition had occurred. In the present case, the Tribunal had clearly and correctly found on the evidence that the underlying patho physiology had not changed. 19 The respondent also challenged the applicant's apparent contention that taking medication and suffering from periods of incapacity were indicia of a change of patho physiological condition. The respondent submitted that such factors merely indicated an increase in the level of symptoms or an increase in the degree of impairment and not a new impairment. 20 In relation to the applicant's claim that the Tribunal had failed to consider whether he suffered a new impairment, the respondent contended that this argument could not be maintained since the Tribunal clearly identified it as an issue which it had to determine and made a clear finding that there had been no change in the underlying patho physiology. 22 The application of s 24 of the SRC Act to individuals who developed permanent impairments before the relevant provisions of the SRC Act came into force has been considered in a number of Full Court decisions. In large measure, the submissions of the parties focused on these decisions. In West , Merkel J (with whom O'Connor J agreed) held that (at 512): "... where a change in a permanent impairment occurring after the commencement date is such that, quantitatively and qualitatively, it is properly to be characterised as a further or new impairment occurring after the commencement date it is compensable date it is compensable by a lump sum payment under s 24 ..." 23 In Maida , Mansfield J accepted the following propositions as a correct summary of the law: (i) The gradual worsening of the degree of impairment does not constitute a new impairment; (ii) If there is no change in the patho physiological condition causing an impairment then any worsening of an existing impairment will not constitute a new impairment; and (iii) A significant worsening may constitute a new impairment if there has been a change in the underlying patho physiological condition, so that there has been a qualitative change to the impairment that is, the development of a new impairment. 24 In my opinion, these authorities are of limited relevance to the present matter insofar as they concern the gradual worsening of a pre-existing impairment. However, West is relevant for other reasons. It was necessary for the Tribunal to ask and answer a series of questions. The first was whether the applicant suffered an injury as defined in s 4. The report of Dr Roth proceeded on the basis that the injury was the laceration to his right leg and after suffering that injury he subsequently developed cellulitis. Dr Butler appeared to proceed on the same basis, as did Professor Lord. The Tribunal also appeared to accept that the injury was the laceration of the right leg which then led to the "condition of cellulitis in his right leg". What that means is not clear. It may have meant that the Tribunal viewed the original injury either as not simply the laceration but also be ensuing cellulitis or, perhaps, only the cellulitis. The position of the parties before the Tribunal was that the injury was the cellulitis. The medical evidence was to the effect that cellulitis is the inflammation and infection of the soft tissues of, in the applicant's case, the leg. The evidence did not point to, nor did the Tribunal find, that the applicant suffered from a chronic swelling and infection of the right leg. At its highest, the evidence was that once a person has had cellulitis, there was an increased likelihood of the person having it again. 25 The Tribunal then said that in 1998 "the symptoms suddenly occurred". It appears that the Tribunal was saying that the symptoms of cellulitis suddenly appeared because the applicant's leg became infected and swollen. But that is no more than saying that the applicant had the symptoms of cellulitis because he was suffering, at that point, from cellulitis. However, the difficulties arise, in my opinion, in the Tribunal's later analysis where it speaks of the "current cellulitis" being the result of two factors, the " existing cellulitis and the diabetes". It is not clear what the Tribunal meant when it spoke of "existing" cellulitis. It is as if the Tribunal viewed cellulitis as a condition which subsisted continuously but was symptomatic only periodically. 26 The second question is whether that injury has resulted in impairment. It is not clear what the Tribunal was considering as the possible impairment bearing in mind that, relevantly, it was addressing the question of whether the injury the applicant had suffered had resulted in permanent impairment. Impairment is defined as meaning the loss or the loss of the use of or damage or malfunction in any part of the body of any bodily system or function or part of such system or function. The applicant's claim, at least as it is now formulated, was that the impairment was (or at least included) the partial loss of the use of his right leg. The Tribunal appears to have approached the matter on the basis that the impairment was damage to the lymphatic system caused by the original laceration and consequential infection and swelling, namely the cellulitis suffered by the applicant in 1984. The Tribunal suggested, correctly, that the evidence of Professor Lord and Dr Butler pointed to damage to the lymphatic system having been caused by the original injury. However, what the Tribunal did not address was whether there had been any loss of the use of the right leg which, itself, constituted an impairment as defined. 27 As I understand the authorities, and in particular what was said in West by Heerey J at 498 and Merkel J at 512 (O'Connor J agreeing with Merkel J), it is possible for a person to suffer an injury which results in losses or malfunctions manifesting themselves in different parts of the body over time. There is no reason, in principle, why some or all of those losses or malfunctions cannot each be treated as an impairment. After the hearing, the High Court handed down its reasons in Canute v Comcare [2006] HCA 47 where the Court noted that "Textually, the Act assumes that "an injury" may result in more than one "impairment" (at [11]). The parties declined an offer to make submissions about this decision. In the present case, the Tribunal did not address the question of whether the loss of the use of the leg was an impairment caused by the original injury and, if so, whether that impairment occurred after the commencing day for the purposes of s 124(4). While it is ultimately a matter of fact for the Tribunal, the evidence points to an affirmative answer to both questions. 28 What the Tribunal did not do, in my opinion, was to approach the matter in the way contemplated by s 124. I should add that many of the observations I have made about the approach of the Tribunal should not be taken to be a criticism of the Tribunal. The case as developed on behalf of the applicant before the Tribunal was obscure and opaque, at least having regard to the material in the appeal book (the opening and final submissions but not the statements of facts and contentions). The Tribunal was probably distracted by reliance by the applicant's counsel on West as it concerns the gradual worsening of a pre-existing impairment. Section 124 requires the Tribunal, at least in a case such as the present where there is a serious issue about whether payment for any compensable impairment is to be made under the 1971 Actor the SRC Act , to consider whether the claimant suffered a permanent impairment, in the defined sense, after 1 December 1988. If the answer to that question is in the affirmative, then compensation is to be assessed in accordance with s 24. 29 In my opinion the Tribunal erred in law and its decision should be set aside. I do not think remitting the matter to the Tribunal can be said to be futile. Further findings will need to be made by the Tribunal before a conclusion can be reached about the matter referred to at [27] and as to whether, for the purposes of s 24 , the injury to the applicant has resulted in a permanent impairment and, if so, was it compensable and in what way. I propose to extend time, make orders setting aside the Tribunal's decision and remitting the matter to the Tribunal for further consideration. The respondent should pay the applicant's costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. Associate: Dated: 15 November 2006 Counsel for the Applicant: Mr D Richards Solicitor for the Applicant: KCI Lawyers Counsel for the Respondent: Ms R M Henderson and Mr T J Brennan Solicitor for the Respondent: Dibbs Abbott Stillman Date of Hearing: 13 September 2006 Date of Judgment: 15 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1508.html


case_text: The Tribunal member referred to two authorities which had considered the nature of this discretion. He referred to Re Krzywak v Secretary to the Department of Social Security (AAT 4614, 9 September 1988) and Groth v Secretary, Department of Social Security (1995) 40 ALD 541. The Tribunal member said that, in the appellant's circumstances, the consequence of the compensation legislation was as intended, that is to say, that neither the appellant nor Mrs Ilba should retain compensation and compensation effected Centrelink payments. He noted that the appellant argued that in some way Centrelink had foregone its right to retain the recovered moneys through what he considered to be Centrelink's harassment of himself. The Tribunal member said that on the evidence before him he was unable to conclude that the appellant had been harassed by Centrelink, but he said that in any event, he considered that any such harassment was unrelated to Centrelink's decisions in 1989, that is at least 14 years prior to the date the appellant suggested his harassment by Centrelink commenced. For these reasons, the Tribunal decided that the decision under review should be affirmed.


case_text: The Tribunal member referred to two authorities which had considered the nature of this discretion. He referred to Re Krzywak v Secretary to the Department of Social Security (AAT 4614, 9 September 1988) and Groth v Secretary, Department of Social Security (1995) 40 ALD 541. The Tribunal member said that, in the appellant's circumstances, the consequence of the compensation legislation was as intended, that is to say, that neither the appellant nor Mrs Ilba should retain compensation and compensation effected Centrelink payments. He noted that the appellant argued that in some way Centrelink had foregone its right to retain the recovered moneys through what he considered to be Centrelink's harassment of himself. The Tribunal member said that on the evidence before him he was unable to conclude that the appellant had been harassed by Centrelink, but he said that in any event, he considered that any such harassment was unrelated to Centrelink's decisions in 1989, that is at least 14 years prior to the date the appellant suggested his harassment by Centrelink commenced. For these reasons, the Tribunal decided that the decision under review should be affirmed. 13 Leaving aside the need to identify a question of law I do not think it is arguable that there were special circumstances such that the respondent's power was enlivened. The operation of the recovery provisions did not produce anything unfair, unintended or unjust in the relevant sense (see Groth v Secretary, Department of Social Security (supra) at 545). In fact, I did not understand the appellant to put his case in this way. His complaint was that some time after the respondent's predecessor had decided to recover the relevant amount, he had been harassed by the respondent's predecessor and that this harassment was a sufficient basis for an order that the amount recovered be repaid to him. The acts constituting the alleged harassment were not identified by the appellant. Even if they had been, harassment some time after the recovery of the money by the respondent could not constitute special circumstances within the provisions of s 156 of the Social Security Act 1947 (Cth) or s 1184K of the Social Security Act 1991 (Cth). In my opinion, the appeal is clearly unarguable and it is an appropriate case for me to exercise the power in O 20 r 2 of the Federal Court Rules . 14 The appeal is dismissed. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice BESANKO. Associate: Dated: 15 November 2006 The Applicant: The applicant appeared in person. Counsel for the Respondent: J Abbott Solicitor for the Respondent: Sparke Helmore Date of Hearing: 23 October 2006 Date of Judgment: 15 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1520.html


case_text: similar view as to the power of a stay was expressed in applying what Lord Diplock had said by Gleeson CJ, Gummow, Hayne and Crennan JJ in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 ; (2006) 227 ALR 425 at 428 [7] - [9] . I am of opinion that the continuation of the foreign restraining orders would reflect a juridicial basis which is inconsistent with the position that I have found, and would create an alteration of the position that the arbitration agreement is inoperative. I am of opinion that in crafting orders, conditioning the grant of leave so as to obviate the necessity for Pan to litigate both in the United States and England to set those restraining orders aside and to provide that they can, in effect, be automatically reinstated, will mean that the institution of the appeal will not be able to be seen as being unduly vexatious or oppressive, within the meaning of the authorities to which I have referred. Right-thinking people would regard it as very odd that the appellate processes of the court could be invoked by one party who says a decision is wrong, which held it had no right to arbitrate, who on the other hand, asserts that it can keep in place ex parte orders obtained in aid of that arbitration from courts overseas. It does not seem right that Comandate Marine can pursue an appeal in this jurisdiction leaving Pan to pursue litigation overseas to secure the benefit of its result here, in circumstances where one is dealing with commercial litigation. In the present case appropriate protective orders can be made and there is no evidence before, me despite an invitation to identify any, to show that there is any prejudice to Comandate Marine in this result. Doing the best I can to balance the rights of both of the parties, I am of opinion that it is appropriate to impose a condition on the grant of leave that Comandate Marine give up its current orders in aid of the arbitration. It seems to me that those orders currently, other than requiring Pan not to dissipate its assets otherwise than in the ordinary course of business which it is obliged to do under Australian law in any event, on the evidence before me, do not actually secure any real right of Comandate Marine or give it a benefit. So, I do not consider that it will suffer some substantial prejudice by being required to adhere to the position that there is no arbitration currently on foot by reason of the determination that I made on 22 August 2006. This is an application to commence an appeal in commercial litigation which ought be approached commercially in the exercise of discretions attending a grant of leave. I am of opinion that where the court is in a position to give an urgent hearing of the appeal, as will occur, and where there is no practical prejudice, on the evidence, suffered by the vacation of the two orders that have been obtained only for the purposes of the arbitration, I ought to require Comandate Marine to take steps to discharge them. Comandate Marine argued that that was interfering with the jurisdiction of the United States District Court and the High Court of Justice of England and Wales.


case_text: am of opinion that there is the power in the Court to impose conditions on a grant of leave to appeal in circumstances where, like the present, the appeal is interlocutory but there are other proceedings on foot, the benefit of which the unsuccessful party seeks to maintain while at the same time seeking to challenge the result which would have the effect of negating the factual substratum underlying those other proceedings. Such a power seems to me to fall within the inherent power of a superior court of record to condition orders that it makes inter partes to accord with the requirements of the demands of justice, just as the power to grant a stay is not confined to closed categories of cases of which vexatious suits is one illustration. It is a power which is exercisable in any situation where the requirements of justice demand it: Tringali v Stewardson Stubbs & Collett Pty Limited (1966) 66 SR NSW 335 at 344. The power to impose conditions should be similarly approached.


case_text: Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378 at 393 Mason CJ and Deane and Dawson JJ discussed the inherent jurisdiction of a superior court to stay proceedings on the grounds of abuse of process and said that that power extended to all those categories of cases in which the processes and procedures of the court which exist to administer justice with fairness and impartiality may be converted into instruments of injustice or unfairness. They relied on what Lord Diplock had said in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536, that the inherent power which any court of justice must possess is to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it or would otherwise bring the administration of justice into disrepute among right-thinking people.


case_title: Abebe v The Commonwealth of Australia [1999] HCA 14 , 197 CLR 510

case_text: it would be curious if any contrary conclusion were to be reached. It is for a claimant to advance whatever evidence or arguments he wishes to advance in support of a claim that he has a well-founded fear of persecution for a Convention reason; it is then for the Tribunal to decide whether the claim is made out: Abebe v The Commonwealth of Australia [1999] HCA 14 at [187] , 197 CLR 510 at 576 per Gummow and Hayne JJ. It would be a curious result (and an unacceptable result) if a claimant could unsuccessfully advance some materials and thereafter have an entitlement, perhaps a repeated entitlement, to supplement the original material until he may ultimately prevail. The unacceptability of such a course is only compounded by a claimant shunning an invitation to attend and to participate in a hearing so that the material originally provided could then be discussed. The passage in the Tribunal's " Findings and Reasons " which is the subject of the final Ground of Appeal , together with the " Conclusions " thereafter expressed, provide as follows: [26] ... I am unable to be satisfied on the evidence before me that, if the applicant returns to Bangladesh now or in the reasonably foreseeable future, there is a real chance that he will be involved in any form of political activity or that he will be persecuted (whether by the Awami League leader and his people, the Awami League more generally, the caretaker government or the army) for reasons of his real or imputed political opinion or for any other Convention reason. CONCLUSIONS [27] I am unable to be satisfied on the evidence before me that the applicant has a well-founded fear of being persecuted for a Convention reason if he returns to Bangladesh now or in the reasonably foreseeable future. It follows that I am not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Consequently the applicant does not satisfy the criterion set out in paragraph 36(2)(a) of the Act for a protection visa. By reference to the reasons for decision of the Federal Magistrate, it is understood that " the applicant contended that the Tribunal had acted in excess of its jurisdiction by giving him a guarantee that he would not have any real chance of persecution ...". But, as correctly observed by the Federal Magistrate, no such " guarantee " was given. The conclusion of the Tribunal was that it was " unable to be satisfied on the evidence " that the now Appellant would be " involved in any form of political activity or that he will be persecuted ... ".


case_text: if the Ground is intended to convey that the Tribunal should have placed greater weight upon the claims being advanced, notwithstanding the fact that the now Appellant elected not to appear before the Tribunal, the weight to be given to the evidence advanced is a matter for the Tribunal — and not a matter for the Federal Magistrate or this Court on appeal: Minister for Immigration and Ethnic Affairs v Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 291 to 292 per Kirby J. This Ground is without substance. The second Ground of Appeal , again construed as a contention that the Federal Magistrate erred in not concluding that there had been a failure on the part of the Tribunal to comply with s 424A of the Migration Act 1958 (Cth), is also to be rejected.


case_text: Notice of Appeal , however, fails to identify any ground upon which it is said that the Federal Magistrate has erred. The Notice of Appeal and the Appellant's written Outline of Submissions are both directed to errors said to have been made by the Tribunal. But it is not the task of this Court on appeal to again review the decision of the Tribunal. In Sathiyanathan v Minister for Immigration and Multicultural Affairs [2000] FCAFC 210 Finn, Marshall and Goldberg JJ correctly observed: [10] ... that much of the appellant's submissions were directed to the proposition that the Tribunal had made errors in the way it had considered the evidence and issues before it. Although this occurred under the rubric of a consideration of the primary judge's reasons it was of little assistance in understanding why it was said that the primary judge fell into error. The Court wishes to emphasise that an appeal to the Full Court in a refugee matter should not be taken as an occasion to re-consider the Tribunal's reasons as distinct from considering the primary judge's reasons. " [S]ubmissions in this Court with little reference to the conclusions of the Federal Magistrate ... [do] not assist an appeal court ": NBDY v Minister for Immigration and Multicultural Affairs [2006] FCAFC 145 at [26] per Branson and Stone JJ. See also: SZAJB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 782 ; SZLJW v Minister for Immigration and Citizenship [2008] FCA 1230 at [13] .


case_title: SZAJB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 782


case_text: Tribunal proceeded to resolve the claim upon the basis of the material provided to it by the now Appellant. In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 , 96 ALD 1 Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ concluded: [18] ... if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [[2004] FCAFC 123 [2004] FCAFC 123 ; , 206 ALR 471] that the word "information": ... does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc. If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself. The concept of " information ", as that term is used in s 424A , thus does not extend to the " subjective appraisals " of the Tribunal in its consideration of such materials as are placed before it by a claimant: see s 424A(3)(b). Nor does it extend to " doubts, inconsistencies or the absence of evidence ". Decisions of this Court have obviously adopted and applied these conclusions: e.g. SZLPF v Minister for Immigration and Citizenship [2008] FCA 1692 at [8] ; Tran v Minister for Immigration and Citizenship [2008] FCA 1826 at [26] , 105 ALD 555 at 563; SZLKY v Minister for Immigration and Citizenship [2008] FCA 1755 at [30] ; SZLSM v Minister for Immigration and Citizenship [2009] FCA 537 at [31] .


case_text: in circumstances where a claimant fails to attend at a hearing before the Tribunal — as in the present proceeding — and where the Tribunal cannot reach the requisite state of satisfaction upon the materials before it, s 424A is of limited operation. In SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 Allsop J thus stated: [29] ... here, the reason for the decision is plain. The Tribunal, having read all the material and having evaluated its content and weight, was unable to reach a specified mental state. It was not satisfied that the appellant had a well-founded fear because of subjectively perceived inadequacies in the information. The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision. It was the lack of the requested further assistance and explanation that was the reason. See also: SZLHR v Minister for Immigration and Citizenship [2008] FCA 1160 at [11] per Sundberg J.


case_text: deficiency is not a mere matter of form as no original jurisdiction is vested in this Court to review errors perceived to have been committed by the Tribunal: SZJHE v Minister for Immigration and Citizenship [2008] FCA 1771 at [7] . And, as has been observed in other decisions of this Court, Grounds of Appeal expressed in like terms to the present " seek to impermissibly review on appeal the decision of the Tribunal by seeking a review on the merits ": SZLYI v Minister for Immigration and Citizenship [2008] FCA 1809 at [16] .


case_title: SZLHR v Minister for Immigration and Citizenship [2008] FCA 1160


case_title: SZLJW v Minister for Immigration and Citizenship [2008] FCA 1230


case_title: SZLKY v Minister for Immigration and Citizenship [2008] FCA 1755


case_title: SZLPF v Minister for Immigration and Citizenship [2008] FCA 1692


case_title: SZLSM v Minister for Immigration and Citizenship [2009] FCA 537


case_title: SZLYI v Minister for Immigration and Citizenship [2008] FCA 1809


case_outcome: affirmed

case_text: application for review was then filed with the Federal Magistrates Court on 18 September 2008. An amended application was filed on 19 February 2009. That Court dismissed the application on 11 May 2009: SZMSZ v Minister for Immigration and Citizenship [2009] FMCA 475. The Appellant filed a Notice of Appeal in this Court on 1 June 2009 setting forth the following purported Grounds of Appeal (without alteration): 1. 1. The Refugee Review Tribunal failed to exercise its duty under the Migration Act that the Tribunal did not put any weight to my political involvement with the BNP and subsequently being persecuted. 2. The Refugee Review Tribunal said in its decision that many questions were unanswered as I did not attend at the hearing. However the Tribunal did not send me any notice under section 424A of the Migration Act 1958 to provide the unclear matter in details. 3. The Refugee Review Tribunal acted in excess of its jurisdiction by making the comment that "if the applicant returns to Bangladesh now or in the reasonably foreseeable future, there is a real chance that he will be involved in any form of political activity or that he will be persecuted (......) for reasons of his real or imputed political opinion or for nay other Convention reason. These were the same grounds upon which reliance was placed before the Federal Magistrate. In support of the Appeal , the Appellant also filed an Outline of Submissions — as did the Respondent Minister.


case_title: Tran v Minister for Immigration and Citizenship [2008] FCA 1826 , 105 ALD 555


case_text: Avon Downs Pty Ltd v Commissioner of Taxation [1949] HCA 26 ; (1949) 78 CLR 353 (" Avon Downs "), a state of mind case, was an appeal to the High Court in its original jurisdiction against an objection decision. It concerned the deductibility of past years' losses. In order to be entitled to a deduction, a taxpayer had to establish certain things (for convenience, I will use the expression "continuity of beneficial ownership") to the satisfaction of the Commissioner: ITAA s 80(5). Dixon J stated (at 360): "But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some misconception." 44 There was no reference to s 177(1) or s 190(b). Nonetheless, Dixon J may be taken to have accepted: • that it was open to the taxpayer to prove the excessiveness of the assessment by showing that the Commissioner's not being satisfied as to continuity of beneficial ownership could not stand on judicial review grounds; and • that if it was established that at law the Commissioner had been bound to be satisfied, the taxpayer would be entitled to the deduction for past years' losses. 45 Avon Downs does not address the question whether the Commissioner could be required to give particulars. It appears, however, that Dixon J contemplated that the taxpayer would have to proceed on the basis that the Commissioner was not obliged to disclose his reasons, but that the taxpayer would have available the materials that had been before the Commissioner. 67 Like Avon Downs , Commissioner of Taxation v Brian Hatch Timber Co (Sales) Pty Ltd [1971] HCA 18 ; (1972) 128 CLR 28 (" Brian Hatch ") concerned the carry forward loss provisions. A necessary condition of deductibility under s 80A of the ITAA was the taxpayer company's satisfying the Commissioner concerning continuity of beneficial ownership a state of mind case. At first instance, Walsh J upheld the taxpayer's appeal, applying the passage from Dixon J's judgment in Avon Downs . The only material before the Commissioner that was before his Honour was the taxpayer's return and a record of interview. In substance, Walsh J held that on this slim material, the Commissioner had not been entitled not to be satisfied of continuity of beneficial ownership. 68 In allowing an appeal, all members of the Full Court also referred to Dixon J in Avon Downs , but considered that the taxpayer had not established any of the grounds to which Dixon J had referred. In other words, so far as the evidence led by the taxpayer showed, the Commissioner had been entitled not to be satisfied. 69 Barwick CJ said (at 45) that the primary Judge had rightly regarded the Commissioner's lack of satisfaction as examinable on Avon Downs grounds, noting that the taxpayer had not taken the course of seeking from the Commissioner "an account of the material upon which he acted in rejecting the claim to the deduction" (at 45). The Chief Justice added that it was unsatisfactory that the Commissioner had not led evidence of any matter that he had before him. It is implicit, I think, that Barwick CJ thought that the taxpayer would have been entitled to particulars of the material that was before the Commissioner, and, perhaps, of the matters he had taken into account. 70 Menzies J likewise thought it "unfortunate that the basis of the Commissioner's not being satisfied of what was requisite for allowing the deduction claimed was not revealed" (at 52). His Honour noted that the taxpayer might properly have inquired of the Commissioner why he was not satisfied, and observed that "[s]uch an inquiry would no doubt have been answered" (ibid). 71 Windeyer J pointed out (at 56) that the question was not whether a discretion was properly exercised, but whether a fact existed: did the taxpayer in fact satisfy the Commissioner of beneficial ownership as prescribed by s 80A? 72 Owen J (with whom Windeyer J agreed) noted that the taxpayer had not taken various courses that had been open to it, one of which was to inquire of the Commissioner what matters he had considered in disallowing the deduction claimed, or why he had not been satisfied about the state of the shareholding at the relevant times (at 59-60). Again, it seems clear that in their Honours' view, the Commissioner would have been compellable to answer such inquiries. 78 Barwick CJ dissented. His Honour said (at 541) that the Commissioner should have recorded "his relevant state of mind and the facts or his view of the facts on which it is based", and that it should not be left to the Court to draw inferences as to whether he had considered a matter. The Chief Justice added, citing his own judgment in Giris , that the Commissioner "must expose to the taxpayer, particularly if so requested , both his state of mind at the relevant time and its basis" (at 541) (emphasis added). Like the majority and Windeyer J in Brian Hatch , his Honour saw the issue as being one of fact: was the Commissioner in fact satisfied at the point of assessment or not? His Honour disagreed with the majority, however, as to the Commissioner's right to support his state of dissatisfaction at the time by a course of reasoning devised later. 80 All Judges accepted that the Commissioner's state of non-satisfaction was reviewable on Avon Downs grounds. However, none of the judgments referred to the interaction between ss 177(1) or s 190(b) of the ITAA. 83 Aickin J delivered the leading judgment (Barwick CJ, and Gibbs, Mason and Jacobs JJ expressed agreement with his Honour's reasons). His Honour said that the particulars sought were necessary so that the case would "proceed in an orderly and comprehensible manner" (at 227). His Honour thought that it was not in the interests of the proper administration of justice that on the hearing the appellant should have to "speculate about, and adduce evidence to negate, every possible kind of agreement or arrangement and avoidance which the imagination of his advisers can conjure up" (ibid). It did not matter that s 260 was "self-executing" and did not depend on the Commissioner's forming an opinion or reaching a state of satisfaction. With his Honour's approach may be contrasted that of Kitto J in George (see [47] above). 84 Barwick CJ referred to s 190(b). His Honour stated that if some step in the process of assessment lacked "the authority of the Act", the assessment would be shown to be excessive. His Honour continued (at 217): "I have elsewhere indicated, and now confirm, that, in my opinion, it is that process which must be exposed to the Court and with which the Court is exclusively concerned in an appeal by the taxpayer." The Chief Justice stated (ibid): "Quite clearly, the taxpayer is entitled to know the basis on which the assessment has been made". 85 In this case, again, Barwick CJ expressed himself in favour of disclosure and particularisation by the Commissioner. However, apparently his Honour contemplated only a brief particularisation of the assessment by the Commissioner. He said (at 218) that "a statement by the Commissioner in his adjustment sheet of the assessable income as determined by him would be a sufficient compliance with ... [his] obligation in informing the taxpayer of the basis of the assessment". 105 His Honour observed: (1) (at 469-470) that s 177F fell into "that category where an opinion formed by the Commissioner or a determination by him or his state of mind, is made a crucial element in the process of assessment", citing Bailey at 225 (Aickin J); (2) (at 470) that the assessment would be "excessive" if some step in the Commissioner's process of ascertainment of the amount of tax lacked the authority of the ITAA, citing Bailey at 217 (Barwick CJ); and (3) (at 470) that a determination by the Commissioner under s 177F would lack the authority of the ITAA if, inter alia , the Commissioner had regard to irrelevant considerations or omitted to have regard to relevant ones, citing Avon Downs at 360 (Dixon J). It will be noted that Gummow J did not distinguish between state of mind cases and Commissioner's determination cases: both belonged to the same "category" (at 469). Consistently, his Honour considered that a determination would lack the authority of the ITAA, just as a state of mind would do, if defective on judicial review grounds. 119 The distinction between state of mind cases and Commissioner's determination cases was referred to by the High Court in Commissioner of Taxation v Peabody [1994] HCA 43 ; (1994) 181 CLR 359 (" Peabody "), a Part IVA case. In a joint judgment, all seven members of the High Court stated (at 382): "Under s. 177F(1), the Commissioner's discretion to cancel a tax benefit extends only to a tax benefit obtained in connexion with a scheme to which Pt IVA applies. The existence of the discretion is not made to depend upon the Commissioner's opinion or satisfaction that there is a tax benefit or that, if there is a tax benefit, it is obtained in connexion with a Pt IVA scheme. Those are posited as objective facts [citing McAndrew at 276-277 (Kitto J), and referring to Avon Downs at 360 (Dixon J)] . The erroneous identification by the Commissioner of a scheme as being one to which Pt IVA applies or a misconception on his part as to the connexion of a tax benefit with such a scheme will result in the wrongful exercise of the discretion conferred by s. 177F(1) only if in the event the tax benefit which the Commissioner purports to cancel is not a tax benefit within the meaning of Pt IVA. That is unlikely to be the case if the error goes to the mere detail of a scheme relied upon by the Commissioner. An error of a more fundamental kind, however, may have that result where, for example, it leads to the identification of the wrong taxpayer as the recipient of the tax benefit. But the question in every case must be whether a tax benefit which the Commissioner has purported to cancel is in fact a tax benefit obtained in connexion with a Pt IV A scheme and so susceptible to cancellation at the discretion of the Commissioner" (emphasis added). The "erroneous identification" and "misconception" to which their Honours referred might be compared to an erroneous identification by the Commissioner of the international agreement in question in the present case. The error may or may not vitiate the Commissioner's exercise of his discretion determining that subss 136AD(1) or (2) (as the case may be) is to apply in relation to the Taxpayers in relation to the supply of property. 128 Mason CJ observed (at 178) that the making of a determination under s 177F "forms part of the process of assessment and goes to the ascertainment of the substantive liability of the taxpayer to tax " (emphasis in original). His Honour referred to the distinction recognised in George , McAndrew , FJ Bloemen and Dalco , between the procedural mechanism by which taxable income is ascertained on the one hand, and the taxpayer's substantive liability on the other, the former (alone) involving the "due making" of the assessment (at 182-184). After referring to certain illustrations of the distinction, the Chief Justice observed (at 184): "... the making of a determination by the Commissioner under s 177F of the [ITAA] is a determination going to substantive liability and, in conformity with the interpretation of s 177(1) adopted in George , McAndrew , FJ Bloemen and Dalco , is put in issue by an appeal which challenges the assessment on the ground that it is excessive." Later, Mason CJ referred specifically to the susceptibility of a determination under s 177F to attack in an appeal to this Court against an objection decision. His Honour stated (at 187-8): "In such an appeal, it is for the taxpayer to show that the assessment is excessive. In that context, the existence of an inadmissible purpose on the part of the Commissioner plays no part. The central element of the legislative régime is the making of an assessment by the Commissioner which ascertains the taxpayer's liability to tax and the reference to the Tribunal or the appeal to the Federal Court, in which the taxpayer is entitled to dispute his or her substantive liability to tax. In such an appeal, the taxpayer is at liberty to challenge the exercise of any relevant discretion by the Commissioner. Thus, on appeal, the court will set aside the assessment if any relevant exercise of discretion by the Commissioner is affected by error of law, if he has taken an extraneous factor into account or if he has failed to consider a material factor [citing Avon Downs at 360]" (emphasis added). 154 The position established by Peabody (see [119] above), Sleight (see [136] [145] above), and Syngenta (see [146] [150] above) seems to be that a distinction is to be drawn between cases in which the ITAA specifies a state of mind on which the assessment of the amount of taxable income (and tax) depends (cf Avon Downs , George , Giris , Duggan , Brian Hatch , Kolotex , WA Capital , Dalco ), and those in which it specifies, not a state of mind, but the making of a determination, as the event on which the amount of taxable income (and tax) depends (cf Jackson , Peabody , Richard Walter , Binetter, Sleight , Syngenta ). In the latter class of case, the legislature is taken to indicate that the interaction between s 177(1) of the ITAA and s 14ZZO(b) of the TAA produces the result that the Commissioner's state of mind, on the basis of which the determination was made, is part of the due making of the assessment, and cannot be put in issue by the taxpayer.


case_title: Bailey & Ors v Commissioner of Taxation [1977] HCA 11 ; (1977) 136 CLR 214

case_text: In my view, however, the Court has implied power to order particulars (cf the reference to "inherent" power to order particulars in Master Butchers Ltd v Commissioner of Taxation [1974] 1 NSWLR 350 at 356 (Mahoney J) (" Master Butchers "); Bailey and Ors v Commissioner of Taxation [1977] HCA 11 ; (1977) 136 CLR 214 at 221 (Jacobs J), 227, 231 (Aickin J)) (" Bailey "). 82 A question of the Commissioner's liability to supply particulars arose in Bailey . The Commissioner had relied on the then general anti-avoidance rule in s 260 of the ITAA. The Court ordered him to provide particulars of the arrangement he alleged was rendered void against him by s 260. 86 A little confusingly at times, the judgments in Bailey contain references to both particulars of the assessment, and particulars of the Commissioner's case to be raised on the hearing. The adjustment sheet which accompanied the notice of assessment showed that the Commissioner had included the taxpayer's proportion ($77,235) of a distribution of $411,920 by Bailey Holdings Pty Ltd. In the course of correspondence, the Commissioner informed the taxpayer that he was relying on s 260 in including that amount. The particulars ordered to be provided were further particulars of the distribution and particulars of the arrangement said to be within s 260. Thus, the order was for further particulars of matters that the Commissioner had already positively asserted as having formed part of his assessment. 87 There is no suggestion that the Commissioner would not have been permitted to identify the arrangement concerned in alternative ways, or to amend later the particulars given of the arrangement, subject to any special order as to costs. 88 Bailey was neither a state of mind nor a Commissioner's determination class of case. I understand Bailey , like Master Butchers , as a case concerned with the practical running of a trial. It does not determine the question whether the Commissioner should be ordered to provide particulars, not of positive assertions made by him, but of his thought processes antecedent to a positive statutorily required step that he does assert the making of a determination. 89 The judgments in Bailey do not refer to s 177(1), and make only passing reference to s 190(b). 105 His Honour observed: (1) (at 469-470) that s 177F fell into "that category where an opinion formed by the Commissioner or a determination by him or his state of mind, is made a crucial element in the process of assessment", citing Bailey at 225 (Aickin J); (2) (at 470) that the assessment would be "excessive" if some step in the Commissioner's process of ascertainment of the amount of tax lacked the authority of the ITAA, citing Bailey at 217 (Barwick CJ); and (3) (at 470) that a determination by the Commissioner under s 177F would lack the authority of the ITAA if, inter alia , the Commissioner had regard to irrelevant considerations or omitted to have regard to relevant ones, citing Avon Downs at 360 (Dixon J). It will be noted that Gummow J did not distinguish between state of mind cases and Commissioner's determination cases: both belonged to the same "category" (at 469). Consistently, his Honour considered that a determination would lack the authority of the ITAA, just as a state of mind would do, if defective on judicial review grounds. 112 The primary Judge held that, in the absence of an affirmative statement by the Commissioner, the taxpayer was not entitled to particulars. However, the Full Court (Pincus, Gummow, Lee JJ) disagreed. Their Honours thought that Bailey , which they described as "the leading case on this subject", was "inconsistent with the general proposition that if the Commissioner intimates that he will not call any evidence about a matter necessary to the validity of his assessment, but will simply argue at the trial that the taxpayer had not displaced the assessment, particulars of its basis would ordinarily not be ordered" (at 191). They said: "[n]o trace of such a doctrine can be found in the reasons [in Bailey ]". 113 Their Honours conceded, as the primary Judge had implied, that if the particulars sought were ordered, that might enable the taxpayer to win an otherwise unwinnable case. However, they thought that particulars should have been ordered, having regard to the fact that the holding of the opinion was itself made a condition of the validity of the assessment and that the covering letter had made further examination of that opinion a legitimate subject of inquiry. 114 The case can be distinguished from the present one on the ground that the ITAA does not make the Commissioner's state of mind on any matter a condition of the power to make either the par (d) determinations or the subs (4) determination, and, therefore, a condition of liability to tax. Whether that is a satisfactory ground of distinction is another matter (see [155] below). 120 Following the passage noted above, their Honours continued by noting that the Commissioner may be required to supply particulars of the scheme relied on (they cited Bailey ), but was entitled to put his case in alternative ways (I suggest by identifying different schemes in the alternative), provided no undue embarrassment or surprise was caused to the taxpayer. Even after a scheme had been particularised, they noted (at 382-383), the position might be cured by amendment, provided the interests of justice allowed such a course (citing Bailey at 219). 121 Their Honours did not refer to the question of defects in the process of the making of the discretionary determination under s 177F (except in the one respect mentioned in the passage quoted above).


case_text: In Binetter v Commissioner of Taxation [2003] FCA 687 ; (2003) 130 FCR 135, Hill J ordered the Commissioner to provide particulars. The Commissioner had made a determination under s 177F(1) of the ITAA. The proceeding was an appeal to this Court against the Commissioner's disallowance of the taxpayer's objection. 131 His Honour noted that it was not in dispute that the Court had power to order particulars where they were "necessary for the orderly disposition of the appeal" or to order discovery "where as a matter of discretion the court is of the view that it is appropriate that discovery be given" (at 137). 132 His Honour ordered that the Commissioner: (1) identify which of the determinations (under s 177F(1)) referred to in the Commissioner's SOFIC the Commissioner proposed to rely upon at the hearing; (2) identify which, if any, of the determinations the Commissioner proposed to rely upon in the alternative; (3) make available for inspection by the taxpayer documents that were before the person who made the determination or determinations, at the time or times of the making of it or them; (4) identify the steps comprising any scheme within the meaning of s 177A of the ITAA on which the Commissioner proposed to rely, indicating if any scheme was to be relied on in the alternative; (5) advise the applicant whether the Commissioner alleged that the Commissioner made a determination or determinations under s 177F(3) (for a "compensating adjustment"), and, if so, advise the name of the officer who made the determination, the date it was made and the terms of it; (6) produce for inspection the documents that were before the officer who made any determination which the Commissioner alleges was made, at the time it was made. 133 There is nothing in these orders that suggests that a taxpayer is entitled to particulars going to judicial review grounds as are sought in the present case, or is entitled to attack the making of a determination under s 177F(1) on judicial review grounds. 134 The Commissioner's discretionary power to make a determination under s 177F(1) is conditioned on the obtaining of a tax benefit by a taxpayer in connection with a scheme to which Pt IVA applies objective criteria. His Honour thought it to be in the interests of justice that the Commissioner be required to specify the determination or determinations, and the scheme or schemes, on which he would rely on the hearing. His Honour recognised the possibility that the Commissioner might put his case in alternative ways and might seek to depart from the particulars supplied (if he were to take the latter course, the matter would have to be addressed if and when the occasion arose).


case_text: The operation of s 190(b) of the ITAA was explained by Mason J (dissenting) in Gauci v Commissioner of Taxation [1975] HCA 54 ; (1975) 135 CLR 81 at 89 as follows: "Section 190(b) of the Act imposed on the appellants the burden of proving that the assessments were excessive. The appellants relied on their evidence and that of Graham [their land agent who acted for them] in order to show that the assessments were excessive. Once that evidence was rejected, the appellants' case necessarily failed. The Act does not place any onus on the Commissioner to show that the assessments were correctly made. Nor is there any statutory requirement that the assessments should be sustained or supported by evidence. The implication of such a requirement would be inconsistent with s. 190(b) for it is a consequence of that provision that unless the appellant shows by evidence that the assessment is incorrect, it will prevail." The view expressed by Mason J in this passage has been endorsed: see McCormack v Commissioner of Taxation [1979] HCA 18 ; (1979) 143 CLR 284, esp at 302-304 (Gibbs J), 306 (Stephen J), 323 (Murphy J); Macmine Pty Ltd v Commissioner of Taxation (1979) 53 ALJR 362, esp at 371 (Stephen J), 381 (Murphy J); Commissioner of Taxation v Dalco [1990] HCA 3 ; (1990) 168 CLR 614 esp at 624-5 (Brennan J with whom Dawson, Gaudron and McHugh agreed, and Deane J generally agreed) (" Dalco "). Practice Note No 22, referred to at [37], is consistent with it. 115 The effect of ss 175 and 177(1) of the ITAA was considered by the High Court in Dalco . The Commissioner had assessed under ss 166 and 167 as in George . A majority in a Full Court of this Court had held that the taxpayer had shown that each assessment was excessive "in that it was not warranted by law" ( Dalco v Commissioner of Taxation 88 (1988) ATC 4649 at 4666). Accordingly, this Court had remitted each matter to the Commissioner for reassessment. 128 Mason CJ observed (at 178) that the making of a determination under s 177F "forms part of the process of assessment and goes to the ascertainment of the substantive liability of the taxpayer to tax " (emphasis in original). His Honour referred to the distinction recognised in George , McAndrew , FJ Bloemen and Dalco , between the procedural mechanism by which taxable income is ascertained on the one hand, and the taxpayer's substantive liability on the other, the former (alone) involving the "due making" of the assessment (at 182-184). After referring to certain illustrations of the distinction, the Chief Justice observed (at 184): "... the making of a determination by the Commissioner under s 177F of the [ITAA] is a determination going to substantive liability and, in conformity with the interpretation of s 177(1) adopted in George , McAndrew , FJ Bloemen and Dalco , is put in issue by an appeal which challenges the assessment on the ground that it is excessive." Later, Mason CJ referred specifically to the susceptibility of a determination under s 177F to attack in an appeal to this Court against an objection decision. His Honour stated (at 187-8): "In such an appeal, it is for the taxpayer to show that the assessment is excessive. In that context, the existence of an inadmissible purpose on the part of the Commissioner plays no part. The central element of the legislative régime is the making of an assessment by the Commissioner which ascertains the taxpayer's liability to tax and the reference to the Tribunal or the appeal to the Federal Court, in which the taxpayer is entitled to dispute his or her substantive liability to tax. In such an appeal, the taxpayer is at liberty to challenge the exercise of any relevant discretion by the Commissioner. Thus, on appeal, the court will set aside the assessment if any relevant exercise of discretion by the Commissioner is affected by error of law, if he has taken an extraneous factor into account or if he has failed to consider a material factor [citing Avon Downs at 360]" (emphasis added). 154 The position established by Peabody (see [119] above), Sleight (see [136] [145] above), and Syngenta (see [146] [150] above) seems to be that a distinction is to be drawn between cases in which the ITAA specifies a state of mind on which the assessment of the amount of taxable income (and tax) depends (cf Avon Downs , George , Giris , Duggan , Brian Hatch , Kolotex , WA Capital , Dalco ), and those in which it specifies, not a state of mind, but the making of a determination, as the event on which the amount of taxable income (and tax) depends (cf Jackson , Peabody , Richard Walter , Binetter, Sleight , Syngenta ). In the latter class of case, the legislature is taken to indicate that the interaction between s 177(1) of the ITAA and s 14ZZO(b) of the TAA produces the result that the Commissioner's state of mind, on the basis of which the determination was made, is part of the due making of the assessment, and cannot be put in issue by the taxpayer.


case_text: In Commissioner of Taxation v Sleight [2004] FCAFC 94 ; (2004) 136 FCR 211, the taxpayer ("Mr Sleight") appealed to the Court against an adverse objection decision. He contended that a determination by the Commissioner under s 177F was invalid because the Commissioner's discretion had miscarried because there had been a failure to consider certain circumstances personal to Mr Sleight.