case_text: principal consideration to be taken into account when exercising the discretion is the interest of the proper administration of justice and the need to ensure that a decision has been made in a procedurally fair manner and in accordance with law. In some cases arguments have been entertained and leave granted to file a Notice of Contention even after the conclusion of a hearing: e.g. MZKAM v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 428. A further consideration relevant to the exercise of discretion is the fact that the issues sought to be pursued in the Notice of Contention are similar to those issues previously advanced before the Federal Magistrate. In the circumstances it is considered that time should be extended to allow the filing of the Notice of Contention .


case_outcome: cited

case_text: proposed new Ground in the present proceeding seeks to contend that the " strict requirements " of s 424A(1)(b) have not been satisfied because the Tribunal's letter forwarded to the Appellant failed to identify the purpose for which information set forth could be used. The letter providing notice to the Appellant of the information in respect to which " comments or response " were sought was dated 28 July 2008. That letter set forth " information " and continued to state as follows: The above information is relevant because it could lead the Tribunal to find that you did not fear persecution in China, as presently claimed. Your statements to the Departmental officers in September 2007 that you were willing to return to China could lead the Tribunal to find that you were not in fear of persecution should you return to China. The fact that you went to the Chinese Consulate and were issued with a travel document in 2005 and your statement to the Departmental officer that you decided not to go to China in 2005 because you could earn more money in Australia could also lead the Tribunal to be unsatisfied in relation to your claims to fear persecution in China. If the Tribunal makes these findings it will not be satisfied about your persecution claims and may affirm the delegate's decision not to grant a protection visa. No complaint is made by the Appellant as to compliance with s 424A(1)(a) — it is accepted that " clear particulars " of information have been provided. Section 424A(1)(a) requires an applicant to be provided with " sufficient specificity " of the information to be relied upon. Language which fails to identify information with " sufficient specificity " and which fails to " unambiguously " set forth information may fail to comply with s 424A(1)(a): e.g. MZXKH v Minister for Immigration and Citizenship [2007] FCA 663 at [20] per Tracey J. The argument for the Appellant is that the 28 July 2008 letter put him on notice that the information previously set forth in the letter could be used merely for the purpose of making a finding that the Appellant did not fear persecution as claimed. The contravention arose — so it was argued — because the letter did not state that the information could also be used for the purpose of making a finding as to credibility. The argument is rejected.


case_outcome: discussed

case_text: to a particular issue in the reasons for decision of a Tribunal may provide a basis upon which a conclusion may be reached that that issue was in fact addressed and considered during the course of a Tribunal hearing. But the difficulty in drawing an inference that an issue was not addressed because of the absence of any reference to that issue in the reasons for decision of a Tribunal is a difficulty that has been adverted to by the Full Court in NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241. When addressing a submission that an inference should be drawn that the Tribunal did not raise an issue with the appellant, Beaumont, Merkel and Hely JJ there observed: [21] We cannot accept this submission, for several reasons. For one thing, as the respondent submitted, the appellant's case is premised upon an assumption (that was also made by the learned Magistrate, albeit on a tentative basis), namely, that the Tribunal had not raised the issue of the authenticity of certain documents with the appellant at the hearing. However, his Honour did not make a finding in relation to this matter. Driver FM observed that this 'appeared' to be the case 'from the record of the [Tribunal] decision'. On the evidence before his Honour, it was not open to him to have made a finding that this issue had not been canvassed. His Honour had no transcript. (As mentioned, the tape is before us and we refer to it below.) The appellant had not given any evidence (in affidavit form or orally) to the effect that this issue had not been raised. There was simply no basis upon which his Honour could properly have made this finding. His reasons should not be read as if he did so. In the absence of evidence about what occurred at the hearing, the appelant [ sic ] has no sufficient evidential basis for the grounds he seeks to raise, thus he has not, in our opinion, established that the Tribunal did not comply with the rules of natural justice. Their Honours were obviously directing attention to the facts then before the Court. But the caution expressed as to the dangers in too readily drawing inferences from an incomplete factual foundation is to be heeded. The decision in NAOA has since been followed: NBBO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1132 at [31] per Conti J. The Full Court, it has also been said, " simply made its comments based on the particular facts of that case ": SZJYA v Minister for Immigration and Citizenship (No 2) [2008] FCA 911 at [32] , 102 ALD 598 at 606 per Rares J. In an appropriate case, inferences may be drawn from an account given by a Tribunal member: e.g. Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 at [28] to [30] [2004] HCA 62 ; , 221 CLR 1 at 10 to 11 per McHugh, Gummow, Callinan and Heydon JJ. Whether an inference is or is not available must obviously depend upon the facts and circumstances of each individual case. The difficulties adverted to by the Full Court in NAOA are only compounded in the present appeal when attention is directed to the Tribunal's reasons for decision and its account as to that which occurred during the course of the three hearings — the first being held on 23 June 2008, the second on 10 July 2008 and the resumed hearing on 24 July 2008. The first hearing took some 3 hours, the second some 2.5 hours and the third some 2 hours. Notwithstanding the length of each of the hearings, the Tribunal's summary of that which occurred was somewhat brief. No criticism is made of the Tribunal in so summarising the events that took place before it. But the very fact that the summary provided is necessarily so brief renders it very unsafe in the present proceeding to draw any inference that a particular issue was not addressed because it is not mentioned in the summary provided. Second, if a process of inference were engaged in, it would tell against the Appellant. Submissions advanced on behalf of the Appellant after the conclusion of the hearing thus addressed the question as to the Appellant's religious practices, including a submission stating in part as follows: In this matter, if you find that the applicant is a genuine Christian who is opposed to practicing [ sic ] his faith outside the State sanctioned religious institutions in the PRC, you must assess the extent of this commitment and whether he has a well-founded fear of being harmed as a consequence of his commitment to the practice of his faith in this manner. The Tribunal has been presented with a considerable amount of evidence from people who know the applicant in Australia and who knew him in the PRC. This evidence has been to the effect that the applicant has engaged in the practice of his Christian faith outside the confines of the State sanctioned religious institutions in the PRC for most of his life. With the exception of a brief period in Australia, the applicant has always practiced his faith publicly by attending religious services. The evidence of Rev. Lawrence in this regard is that the applicant has been a regular attendee at his church for more than 7 years. In our submission, the Tribunal ought to accept that the applicant is someone who has demonstrated a commitment to practicing his faith outside the confines of the State sanctioned religious institutions in the PRC and that he would continue to practice his faith in this manner in the future, even if he were returned to the PRC. If an inference were drawn, it would be an inference that the now Appellant recognised that an issue needing to be addressed was whether or not the Tribunal should find that he was " a genuine Christian ". Attempts by the Appellant to characterise this and other such submissions as more directed to the nature of the religious activity practised, as opposed to whether or not the Appellant was a genuine Christian, are rejected.


case_text: to a particular issue in the reasons for decision of a Tribunal may provide a basis upon which a conclusion may be reached that that issue was in fact addressed and considered during the course of a Tribunal hearing. But the difficulty in drawing an inference that an issue was not addressed because of the absence of any reference to that issue in the reasons for decision of a Tribunal is a difficulty that has been adverted to by the Full Court in NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241. When addressing a submission that an inference should be drawn that the Tribunal did not raise an issue with the appellant, Beaumont, Merkel and Hely JJ there observed: [21] We cannot accept this submission, for several reasons. For one thing, as the respondent submitted, the appellant's case is premised upon an assumption (that was also made by the learned Magistrate, albeit on a tentative basis), namely, that the Tribunal had not raised the issue of the authenticity of certain documents with the appellant at the hearing. However, his Honour did not make a finding in relation to this matter. Driver FM observed that this 'appeared' to be the case 'from the record of the [Tribunal] decision'. On the evidence before his Honour, it was not open to him to have made a finding that this issue had not been canvassed. His Honour had no transcript. (As mentioned, the tape is before us and we refer to it below.) The appellant had not given any evidence (in affidavit form or orally) to the effect that this issue had not been raised. There was simply no basis upon which his Honour could properly have made this finding. His reasons should not be read as if he did so. In the absence of evidence about what occurred at the hearing, the appelant [ sic ] has no sufficient evidential basis for the grounds he seeks to raise, thus he has not, in our opinion, established that the Tribunal did not comply with the rules of natural justice. Their Honours were obviously directing attention to the facts then before the Court. But the caution expressed as to the dangers in too readily drawing inferences from an incomplete factual foundation is to be heeded. The decision in NAOA has since been followed: NBBO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1132 at [31] per Conti J. The Full Court, it has also been said, " simply made its comments based on the particular facts of that case ": SZJYA v Minister for Immigration and Citizenship (No 2) [2008] FCA 911 at [32] , 102 ALD 598 at 606 per Rares J. In an appropriate case, inferences may be drawn from an account given by a Tribunal member: e.g. Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 at [28] to [30] [2004] HCA 62 ; , 221 CLR 1 at 10 to 11 per McHugh, Gummow, Callinan and Heydon JJ. Whether an inference is or is not available must obviously depend upon the facts and circumstances of each individual case.


case_title: NBKB v Minister for Immigration and Citizenship [2009] FCA 69 , 106 ALD 525

case_text: reason of s 425 , an applicant before the Tribunal is entitled to assume that issues considered dispositive by a delegate are the issues which arise in relation to the decision under review — unless the Tribunal takes steps to notify the applicant to the contrary: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 , 228 CLR 152. Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ there observed: [29] No submission was made on behalf of either the appellant or the Minister that the existence or content of the obligation to accord procedural fairness was directly affected by any provision of the Act. Rather, the argument proceeded, for the most part, by reference to what had been said by the Full Court of the Federal Court in Alphaone [ Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576 at 591 to 592]. The Full Court (Northrop, Miles and French JJ) said: Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material . Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. (emphasis added) Their Honours continued: [35] The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant. See also: NBKB v Minister for Immigration and Citizenship [2009] FCA 69 at [18] to [21], 106 ALD 525 at 529 per McKerracher J. Section 425 imposes an important mandatory obligation which is more than a mere item on " a procedural check list ": SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138 , 172 FCR 1 per Gray J at [8], per Gyles J at [37].


case_title: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 , 228 CLR 294

case_text: " object of the section must be to provide procedural fairness to the applicant by alerting the applicant to material that the Tribunal considers to be adverse to the applicant's case and affording the applicant the opportunity to comment upon it ": SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 at [50] , [2005] HCA 24 ; 228 CLR 294 at 312 per McHugh J. Subject to the qualifications and exceptions set forth, " the evident object of s 424A is that ... fairness to the applicant is to be provided by alerting the applicant to adverse material and affording an opportunity to comment upon it ": [2005] HCA 24 at [118] , [2005] HCA 24 ; 228 CLR 294 at 331 per Gummow J. It was made clear in SAAP that the Tribunal commits jurisdictional error if it fails to comply with the requirements of s 424A. The purpose sought to be achieved by s 424A , it has also been recognised, is twofold: Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138. Branson, Finn and Bennett JJ there observed: [31] The obligation imposed on the Tribunal by s 424A relevantly had two aspects; first, to give the respondent particulars of any information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review (s 424A(1)(a)) and secondly, to ensure, as far as reasonably practicable, that the respondent understood why the information was relevant to the review (s 424A(1)(b)).


case_text: reason of s 425 , an applicant before the Tribunal is entitled to assume that issues considered dispositive by a delegate are the issues which arise in relation to the decision under review — unless the Tribunal takes steps to notify the applicant to the contrary: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 , 228 CLR 152. Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ there observed: [29] No submission was made on behalf of either the appellant or the Minister that the existence or content of the obligation to accord procedural fairness was directly affected by any provision of the Act. Rather, the argument proceeded, for the most part, by reference to what had been said by the Full Court of the Federal Court in Alphaone [ Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576 at 591 to 592]. The Full Court (Northrop, Miles and French JJ) said: Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material . Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. (emphasis added) Their Honours continued: [35] The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant. See also: NBKB v Minister for Immigration and Citizenship [2009] FCA 69 at [18] to [21], 106 ALD 525 at 529 per McKerracher J. Section 425 imposes an important mandatory obligation which is more than a mere item on " a procedural check list ": SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138 , 172 FCR 1 per Gray J at [8], per Gyles J at [37]. The present facts would also appear to stand in contrast to those in SZBEL where Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ observed: [3] ... At no stage did the Tribunal challenge what the appellant said, express any reaction to what he said, or invite him to amplify any of the three particular aspects of the account he had given in his statutory declaration, and repeated in his evidence, which the Tribunal later found to be 'implausible'... [2006] HCA 63 at [3] , [2006] HCA 63 ; 228 CLR 152 at 155. Contrary to the case sought to be advanced on behalf of the Appellant that he was denied the opportunity guaranteed by s 425 by not having the question as to the genuineness of his faith specifically put to him, upon a fair reading of the Tribunal's reasons (cf Liang, supra) it emerges that the Tribunal did " challenge " the Appellant's account. The reasons for decision of the Tribunal thus recount the following exchange: [96] ... I also mentioned to the applicant that it was of concern to the Tribunal that he did not tell his agent his real name or that he was in fear of religious persecution. It was also of concern to the Tribunal that he did not attend church until 15 November 2000, even though he arrived in Australia in June 1999. I mentioned to the applicant that a chronology of his applications indicated that he had exhausted all lines of application by August 2000. The applicant stated that he did not know his application had been rejected. I mentioned to the applicant that it was difficult for the Tribunal to understand why he did not attend the church before November 2000 given his claims of being a committed Christian. I mentioned to the applicant that he told the Tribunal that the reason he attended an underground church in China was because he valued the community spirit which was not available at the official church. I mentioned to the applicant that if that was the case it was difficult to see why he did not seek that out as soon as he arrived in Australia where he could do so freely. The applicant stated that he had no Christian friends so he worshiped [ sic ] on his own. [97] I discussed with the applicant section 91R(3) of the Act. The applicant stated that he did not go to church with the intention of enhancing his refugee claims.


case_title: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 , 96 ALD 1

case_text: for the Appellant resisted such a conclusion and submitted that the Tribunal's reasons did not disclose any finding as to " purpose ". He accepted that the Tribunal's reasons were not to be scrutinised in an " over-zealous " manner and with an " eye keenly attuned to the perception of error ": Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at 271 to 272, see also Kirby J at 291; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [25] , [2007] HCA 26 ; 96 ALD 1 at 9 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; Black v Minister for Immigration and Citizenship [2007] FCAFC 189 at [36] , [2007] FCAFC 189 ; 99 ALD 1 at 9.


case_title: SZHFE v Minister for Immigration, Multicultural and Indigenous Affairs (No 2) [2006] FCA 648

case_text: is unnecessary to resolve a third contention advanced by the Minister. This contention was that s 91R(3) is not engaged where an applicant does not seek to rely on conduct in Australia to support a well-founded fear of persecution (cf SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 648 at [30] per Jacobson J; SZLQX v Minister for Immigration and Citizenship [2008] FCA 1286 at [21] per Jacobson J) or where evidence of conduct is adduced or called by an applicant ( SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 at [16] and [21] to [23] per Spender, Edmonds and Tracey JJ). The contention was that the present Appellant did not seek to rely upon the 1999 or 2000 conduct and did not adduce evidence of such conduct.


case_title: SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138


case_title: SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372 , 104 ALD 22

case_text: for the Appellant accepts what must inevitably be common ground as between the parties. It is thus accepted that a party is normally bound by the manner in which it has previously conducted its case: Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68. Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ there observed at 71: It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. Applied: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105 at [18], 190 ALR 543 at 548 to 549 per Hill, O'Loughlin and Tamberlin JJ; SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372 at [33] , 104 ALD 22 at 30. Similarly, in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 , Gibbs CJ, Wilson, Brennan and Dawson JJ observed at 7: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.


case_text: provision, it has repeatedly been acknowledged, " suffers from a lack of clarity ": SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 , 170 FCR 515. Spender, Edmonds and Tracey JJ there usefully summarised as follows some of the less contentious matters involved in the construction of that provision: [10] In a series of cases decided under s 91R(3) , it has been common ground that the subsection suffers from a lack of clarity. Before turning to the difficulties to which the drafting gives rise, it will be convenient to mention some uncontentious matters relating to the construction of the subsection. First, the subsection is cast in imperative terms: it obliges a decision maker to disregard conduct in Australia by an applicant for a protection visa subject to the proviso in paragraph (b). Secondly, the stipulation that a decision maker must "disregard" an applicant's conduct in Australia requires that such conduct not be brought into consideration when determining whether the applicant has a well-founded fear of being persecuted for a Convention reason. Thirdly, although the Explanatory Memorandum and the second reading speech both indicate that s 91R(3) of the Act was introduced to deal with sur place claims, it is not, in terms, so confined. Conduct in Australia which is undertaken in order to attract the adverse attention of the authorities in the applicant's country of origin, would support a sur place claim. Other types of conduct may not. Section 91R(3) obliges decision makers to disregard "any" conduct by the applicant in Australia. That requirement is qualified by paragraph (b) which provides scope for an applicant to satisfy the decision maker that he or she has engaged in the relevant conduct "otherwise than for the purpose of strengthening the person's claims to be a refugee ...". Conduct in Australia which attracts adverse attention from a foreign government for Convention related reasons would strengthen a person's claim to be a refugee. So too, however, would conduct in Australia which, in an evidentiary sense, rendered it more likely that an applicant had engaged in conduct in his or her home country which led to persecution in that country. Both types of conduct may be engaged in in Australia. ... Decisions of this Court were the catalyst for the introduction of s 91R(3). Those decisions held that a person could become a refugee as a result of conduct, deliberately pursued in Australia, to attract the adverse attention of the authorities in his or her country of origin: [2008] FCAFC 105 at [24] . Special leave to appeal, it should be noted, has been granted: Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO [2008] HCATrans 404. It is unnecessary to resolve a third contention advanced by the Minister. This contention was that s 91R(3) is not engaged where an applicant does not seek to rely on conduct in Australia to support a well-founded fear of persecution (cf SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 648 at [30] per Jacobson J; SZLQX v Minister for Immigration and Citizenship [2008] FCA 1286 at [21] per Jacobson J) or where evidence of conduct is adduced or called by an applicant ( SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 at [16] and [21] to [23] per Spender, Edmonds and Tracey JJ). The contention was that the present Appellant did not seek to rely upon the 1999 or 2000 conduct and did not adduce evidence of such conduct.


case_title: SZJYA v Minister for Immigration and Citizenship (No 2) [2008] FCA 911 , 102 ALD 598


case_title: SZLQX v Minister for Immigration and Citizenship [2008] FCA 1286


case_outcome: affirmed

case_text: application for review was filed with the Federal Magistrates Court of Australia in September 2008 and an amended application was filed in November 2008. The Federal Magistrates Court dismissed the application: SZMTJ v Minister for Immigration and Citizenship [2009] FMCA 18. In so doing, the Federal Magistrate rejected an allegation of bias on the part of the Tribunal. The Federal Magistrate, however, further concluded that there had been a breach of s 91R of the Migration Act but declined relief in the exercise of his discretion. A Notice of Appeal was filed in this Court on 12 February 2009. Before the Federal Magistrate, Counsel for the Respondent Minister " submitted that, whilst the Tribunal found that there had been some conduct in Australia, it was entitled to have regard to that conduct in the manner in which it did, having proper regard to the principles that govern s. 91R (3) ": [2009] FMCA 18 at [45] . The Federal Magistrate went on to summarise the submissions then advanced as follows: [46] Specifically, s. 91R(3) did not require the Tribunal to disregard the applicant's participation in religious activities in Australia because it implicitly (emphasis added) found that the applicant's purpose in attending church was for a purpose other than strengthening his protection visa claims, and it explicitly (again, emphasis added) found an alternate explanation for the applicant's attending church, namely companionship. [47] Similarly, the applicant's lodgement of an earlier application for a protection visa was not conduct that could be said to enhance the applicant's claims for a protection visa and therefore it was not required by s. 91R (3) to be disregarded. [48] Again, the fact that the applicant had obtained a travel document did not need to be disregarded by s. 91R(3). It did not enhance the applicant's claims for refugee status. If anything, this conduct detracted from the applicant's claims for a protection visa. [49] Consequently, counsel for the Minister submitted that there was no jurisdictional error constituted by a breach of s. 91R(3) of the Migration Act , or at all. The Federal Magistrate then went on to resolve submissions directed to other factual matters said to also involve a contravention of s 91R and concluded in respect to the 1999 application and the request for Ministerial intervention in 2000 as follows: [62] This conduct can not, to my mind, be characterised as conduct that could not be understood as an attempt to enhance the applicant's claim to be a refugee. He certainly practised deception, but the motive appears to be an attempt to enhance his claim for a protection visa. Accordingly, the Tribunal was required to disregard it under the provisions of s. 91R(3). The Federal Magistrate thereafter went on to decline relief in the exercise of his discretion, reasoning as follows: [67] What remains to be considered, therefore, is whether the Tribunal's failure to disregard the applicant's conduct in applying for a protection visa in a false name and also applying for the exercise of the Minister's discretion in that same false name is a failure to comply with s. 91R(3) and therefore a jurisdictional error. [68] In my view, the Tribunal failed to comply with s. 91R(3) in this instance and therefore fell into jurisdictional error. [69] However, I am not satisfied that the Court should grant to the applicant the relief that he seeks. The balance of the evidence before the Tribunal is of such weight that the Tribunal's adverse credibility finding against the applicant can stand even if the evidence of the earlier application for a protection visa and the exercise of the Minister's discretion were to be disregarded. It is not in the interests of the administration of justice for the applicant to be granted relief by way of certiorari and mandamus because of a mere technicality. It was this exercise of discretion which was the occasion for the Order 80 r 4 referral. Section 91R(3) provides as follows: For the purposes of the application of this Act and the regulations to a particular person: (a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; disregard any conduct engaged in by the person in Australia unless: (b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.


case_text: manner in which the Federal Magistrate exercised his discretion was the occasion for a referral to be made pursuant to Order 80 r 4 of the Federal Court Rules 1979 (Cth): SZMTJ v Minister for Immigration and Citizenship [2009] FCA 175. Mr Prince of Counsel accepted that referral and appeared as pro bono counsel for the Appellant. The Court is indeed appreciative of his acceptance of the referral and the detailed and careful submissions advanced both in writing and at the hearing of the appeal. Now before the Court are: (i) an application by the Respondent Minister to file a Notice of Contention ; (ii) an application by the Appellant to file an Amended Notice of Appeal ; and (iii) the existing Notice of Appeal . The Notice of Contention seeks to raise a number of contentions as to the construction of s 91R(3) of the Migration Act 1958 (Cth) and its application to the facts. The appeal is to be dismissed.


case_text: for the Respondent Minister opposed the grant of leave to amend to raise either ground primarily upon the basis that neither ground had any merit. He further opposed the application to raise a contravention of s 425 on the basis of prejudice. The Respondent Minister did not contend that this Court, when hearing an appeal under the Migration Act 1958 (Cth) from a Federal Magistrate, does not have jurisdiction to entertain an argument not previously advanced. Indeed, to do otherwise may have precluded him from raising at least some of the contentions sought to be advanced in the Notice of Contention . The jurisdiction of the Court to entertain a new argument was accepted to be only constrained by the well accepted principle as to whether it is " expedient in the interests of justice to do so ...": e.g. VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] per Kiefel, Weinberg and Stone JJ; Commissioner, Australian Federal Police v Oke [2007] FCAFC 94 at [17] , [2007] FCAFC 94 ; 159 FCR 441 at 444 per Branson, Lindgren and Besanko JJ.


case_outcome: referred to

case_text: The scope of s 425 of the Act has been considered recently by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 and by the Full Court of this Court in SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138. Relevantly, for the purposes of this case, the following principles emerge: (1) On a matter being remitted to the Tribunal after a successful application for constitutional writs, the Tribunal must issue a further invitation to appear unless one of the exceptions in s 425(2) applies: SZHKA at [23] per Gray J; at [26] per Gyles J. (2) In SZBEL the High Court decided that an applicant for review was entitled to know of the issues arising in relation to the decision under review so that he or she is able to give evidence and present arguments relating to those issues. That entitlement arose by reason of the common law rules of procedural fairness and s 425. SZBEL was decided in a statutory context which did not include the present s 422B. An applicant is entitled to assume unless advised to the contrary that the issues before the Tribunal are those matters identified in the reasons of the delegate. In SZBEL the High Court did go on to say the following (at 165-166 [47]): First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of the applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted. I see no reason why for the purposes of these principles an issue may not be identified by questions asked at a previous hearing of the Tribunal as well as by the reasons of the delegate. In this case that means that the Court can look at the questions asked at the hearing before the second Tribunal. (3) In SZHKA , Gray J and I took the view that if an issue within s 425(1) emerges after an invitation to appear and hearing, then the Tribunal must issue a further invitation to appear. I take the liberty of repeating what I said at [103]: An invitation to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review is an essential part of the review conducted by the Tribunal and if an issue in relation to the decision under review emerges after the hearing conducted by the Tribunal then, in my opinion, a second invitation to appear must be given. I would add the following observations on the third argument advanced by the first respondent. The argument assumes that a broad meaning is to be given to the word issues in s 425(1) and that there is a far-reaching obligation on the Tribunal to advise the applicant for review of the issues. Those assumptions require examination. In order to succeed in showing that s 425(1) has not been complied with, an applicant for review must show that there is a matter which is an issue arising in relation to the decision under review and that he was not given the opportunity to appear before the Tribunal to give evidence and present arguments relating to that issue because it was not apparent to him that it was an issue and he was not warned by the Tribunal that it was or may be an issue. That is the nature of the obligation, although it must be accepted that questions of fact and degree will often be involved. Furthermore, there is a distinction between evidence relating to an issue and the issue itself and it seems to me that not every matter which might engage the obligation in s 424A involves a new issue or a further issue or a previously unidentified issue. I then went on to set out the passage from the reasons for judgment of the High Court in SZBEL set out in [11(2)] above.


case_text: The scope of s 425 of the Act has been considered recently by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 and by the Full Court of this Court in SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138. Relevantly, for the purposes of this case, the following principles emerge: (1) On a matter being remitted to the Tribunal after a successful application for constitutional writs, the Tribunal must issue a further invitation to appear unless one of the exceptions in s 425(2) applies: SZHKA at [23] per Gray J; at [26] per Gyles J. (2) In SZBEL the High Court decided that an applicant for review was entitled to know of the issues arising in relation to the decision under review so that he or she is able to give evidence and present arguments relating to those issues. That entitlement arose by reason of the common law rules of procedural fairness and s 425. SZBEL was decided in a statutory context which did not include the present s 422B. An applicant is entitled to assume unless advised to the contrary that the issues before the Tribunal are those matters identified in the reasons of the delegate. In SZBEL the High Court did go on to say the following (at 165-166 [47]): First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of the applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted. I see no reason why for the purposes of these principles an issue may not be identified by questions asked at a previous hearing of the Tribunal as well as by the reasons of the delegate. In this case that means that the Court can look at the questions asked at the hearing before the second Tribunal. (3) In SZHKA , Gray J and I took the view that if an issue within s 425(1) emerges after an invitation to appear and hearing, then the Tribunal must issue a further invitation to appear. I take the liberty of repeating what I said at [103]: An invitation to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review is an essential part of the review conducted by the Tribunal and if an issue in relation to the decision under review emerges after the hearing conducted by the Tribunal then, in my opinion, a second invitation to appear must be given. I would add the following observations on the third argument advanced by the first respondent. The argument assumes that a broad meaning is to be given to the word issues in s 425(1) and that there is a far-reaching obligation on the Tribunal to advise the applicant for review of the issues. Those assumptions require examination. In order to succeed in showing that s 425(1) has not been complied with, an applicant for review must show that there is a matter which is an issue arising in relation to the decision under review and that he was not given the opportunity to appear before the Tribunal to give evidence and present arguments relating to that issue because it was not apparent to him that it was an issue and he was not warned by the Tribunal that it was or may be an issue. That is the nature of the obligation, although it must be accepted that questions of fact and degree will often be involved. Furthermore, there is a distinction between evidence relating to an issue and the issue itself and it seems to me that not every matter which might engage the obligation in s 424A involves a new issue or a further issue or a previously unidentified issue. I then went on to set out the passage from the reasons for judgment of the High Court in SZBEL set out in [11(2)] above. 12 There is a point of difference between this case and the circumstances in SZKHA . In SZHKA the second Tribunal, that is, the Tribunal constituted by a member to hear the application after it had been remitted to it, did not give the applicant for review an invitation to appear. In this case, the Tribunal as constituted after the application had been remitted to it for the second time did give the appellant an invitation to appear and it advised him that it could not make a decision in his favour on that information alone. He chose not to appear at a hearing where the alleged issues might have been raised with him. I refrain from deciding if this is a material point of difference. I do not need to decide the point for reasons which will appear. 13 In my opinion, in so far as the matters raised in the Tribunal's s 424A letter were issues within s 425 , they would have been apparent to the appellant before the Tribunal sent its invitation to appear to him and the obligation in s 425(1) was not reactivated by the identification of the matters in the Tribunal's s 424A letter. 14 The issues must be identified by reference to the Tribunal's reasons and I have already identified the relevant passages in [6] above. In my opinion, it is clear from the Tribunal's description of the matters raised with the appellant by the second Tribunal that those issues would have been apparent to the appellant before he received the invitation to appear. It is clear that at the hearing before the second Tribunal he was closely questioned about the alleged incidents in 2003 and the information contained in the three medical certificates. The only matters mentioned in the Tribunal's s 424A letter which appear not to have been raised at the hearing before the second Tribunal relate to the fact that the certificates are all dated the same day and were not given to the first Tribunal. Those two matters are not sufficient to reactivate the obligation in s 425(1) because they were not relied on by the Tribunal, or, even if they had been, they are so intertwined with the other matters which were apparent to the appellant that they that are not of themselves issues.


case_text: In rejecting the appellants' judicial review application, the learned Federal Magistrate held that the principles of Anshun estoppel applied as a result of the previous judicial review proceedings. His Honour did not find it necessary to consider whether issue estoppel applied: see MZWKJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1294 (" MZWKJ ") at [28]. His Honour said, at [12], that: "In my view the nature of the grounds claimed in this case are so similar, in substance, to those the subject of the order nisi application (even on the best case of the applicant with respect to the difference in focus between the country information and inconsistencies in evidence) that nonetheless the arguments ought to have all been brought as part of the initial proceedings. I fine that it was unreasonable that the applicant did not pursue his current basis for judicial review in the proceedings previously pending before Weinberg J, which were dismissed." 5 His Honour formed the view (at [13]) that in light of this it was necessary for him to determine "whether or not there are circumstances in this case which would justify granting the applicant leave to litigate these issues, despite having had an opportunity to do so before Weinberg J and not pursuing them on that occasion". After considering the matters on which the applicant relied in this regard, his Honour held, at [26], that the circumstances did not justify a further hearing. 6 By their notice of appeal filed on 8 July 2005, the appellants challenged the judgment of the Federal Magistrate on the grounds that: "1. The learned Magistrate erred in finding that the application before him was barred by Anshun estoppel or otherwise. 2. The learned Magistrate erred in not finding that the decision of the [Tribunal] ... was affected by jurisdictional error or that the Tribunal had acted without jurisdiction."


case_outcome: applied

case_text: The appellants relied on the affidavits before the Federal Magistrate and also sought to rely on an affidavit of the first appellant sworn on 15 June 2006 (referred to below as "the 15 June 2006 affidavit"). In an outline of submissions filed on 2 December 2005, the appellants stated that the issues raised by the appeal were: (1) whether his Honour was correct in holding that Anshun estoppel applied; and (2) if his Honour was correct, did he err in finding that there were not "special circumstances" such as to justify a further hearing despite the rule in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 (" Anshun "). 17 Thirdly, in the circumstances of this case, it is clear enough that Anshun estoppel applies in the substantive proceeding as against the appellants. Such an estoppel bars a party from raising any point which properly belonged to the subject of earlier litigation that the party, exercising reasonable diligence, might have brought forward at the time of the earlier proceeding. Plainly enough, the "procedural fairness" ground that the appellants now seek to advance might have been brought forward for Weinberg J's consideration. Sundberg J reached the same conclusion in relation to much the same submission in MZWGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1501 (" MZWGJ "), when he rejected a similar submission that Anshun estoppel did not apply in a subsequent judicial review proceeding because of the different focus of the Muin and Lie litigation. Indeed, as counsel for the first respondent observed, the grounds of the draft order nisi considered by Weinberg J were not, in any case, confined to an alleged failure to observe procedural fairness by virtue of a failure to afford an opportunity to comment on country information, which was the focus of Muin . They went much wider than this. On one reading, moreover, the draft grounds were capable of embracing the "inconsistencies" point that the appellants sought to raise in the present proceeding.


case_title: Muin v Refugee Review Tribunal ; Lie v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601

case_text: In oral submissions, in respect of both limbs of his argument, counsel for the appellants emphasized that the proceeding in the High Court was part of what is sometimes referred to as the "Muin and Lie" litigation and focussed on the Tribunal's use of "country information": see Muin v Refugee Review Tribunal ; Lie v Refugee Review Tribunal in [2002] HCA 30 ; (2002) 190 ALR 601 (" Muin "). Counsel for the appellants submitted that the documents relevant to the High Court proceeding should be viewed in this light. The appellants further contended that, by the present proceeding, they desired to raise "a different aspect of the audi alteram partem rule ... relating to the extent of the obligation of the Tribunal to put to applicants for comment matters of inconsistency within or between the evidence of applicants or witnesses". 9 In written submissions, the appellants contended that there were special circumstances having regard to the following matters: "(a) The case potentially involves questions of life and liberty; (b) The Minister is a respondent in her official capacity by force of statute, not in her personal capacity; (c) The appellants were unrepresented at the earlier Court proceedings; (d) If there was procedural unfairness in relation to the decision, it is jurisdictional error of such seriousness that usually relief would follow almost as of right." 17 Thirdly, in the circumstances of this case, it is clear enough that Anshun estoppel applies in the substantive proceeding as against the appellants. Such an estoppel bars a party from raising any point which properly belonged to the subject of earlier litigation that the party, exercising reasonable diligence, might have brought forward at the time of the earlier proceeding. Plainly enough, the "procedural fairness" ground that the appellants now seek to advance might have been brought forward for Weinberg J's consideration. Sundberg J reached the same conclusion in relation to much the same submission in MZWGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1501 (" MZWGJ "), when he rejected a similar submission that Anshun estoppel did not apply in a subsequent judicial review proceeding because of the different focus of the Muin and Lie litigation. Indeed, as counsel for the first respondent observed, the grounds of the draft order nisi considered by Weinberg J were not, in any case, confined to an alleged failure to observe procedural fairness by virtue of a failure to afford an opportunity to comment on country information, which was the focus of Muin . They went much wider than this. On one reading, moreover, the draft grounds were capable of embracing the "inconsistencies" point that the appellants sought to raise in the present proceeding.


case_text: In support of their submissions in this regard, the appellants referred to BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221 (" BC ") at [31] and [38]. Counsel for the appellants expanded on this submission in oral argument. He contended that it was clear from Weinberg J's ex tempore reasons that the appellants, who were then unrepresented, had a very limited grasp of the relevant law. Counsel also referred to the statement by the first appellant that had been made in June 1996. He submitted that, if believed, the appellants' case was at the severe part of the "life and liberty" spectrum and the first factor should be given particular weight. He further argued that had the inconsistencies in question been put to the appellants and explained to the Tribunal's satisfaction, then the Tribunal might have reached a different decision. These factors cancelled out the delay factor, so counsel said. Counsel for the appellant also argued that if a court came to consider the substantive grounds of the present application, then these grounds had reasonable prospects of success. The appellants contended that, if they succeeded, then the appropriate course was for the Court to remit the matter to consider the substantive grounds of the application for relief (i.e., that the Tribunal's decision was affected by jurisdictional error and should be set aside by reason of denial of procedural fairness). 11 In their submissions of 2 December 2005, the appellants also sought to raise as a new ground of appeal, whether Anshun estoppel does not apply as against at least the second appellant because her application was not heard on remitter of the prior proceeding. In written submissions filed in June 2006, the appellants abandoned this ground. 12 The first respondent opposed any grant of leave to the appellants permitting them to rely on the 15 June 2006 affidavit. 14 There was, so the first respondent submitted, no error in his Honour's exercise of discretion and BC was distinguishable from the appellants' case. Further, so the first respondent submitted, lack of representation cannot by itself amount to a special circumstance that would warrant an exercise of discretion in the appellants' favour. The first respondent accepted as relevant the likelihood that relief would follow any finding that the appellants had made out their procedural fairness ground. The first respondent submitted, however, that it was unlikely that a court would grant them the ultimate relief they sought, amongst other reasons, because of "an inordinate and unexplained delay in commencing proceedings". In any case, so the first respondent said, the appellants' procedural fairness argument was without merit, because the rules of procedural fairness did not require the Tribunal to disclose to the appellants that it intended to act on information of which they were or should have been aware. Further, the Tribunal was not obliged to notify the appellants of its mental processes or provide it with an opportunity to comment on preliminary findings before making its decision. The first respondent added: "The Tribunal was not required to make the appellants' case for them. The Tribunal was not obliged to notify the appellants of deficiencies in their case, in order to give them an opportunity to present further material or argument. In particular, the rule in Browne v Dunne had no application to the proceedings before Tribunal. There was also no general duty on the Tribunal to make inquiries to obtain further information from the applicants or some other source." 18 I accept the first respondent's submission that there is no error shown in his Honour's conclusion that Anshun estoppel applies to preclude the appellants from pursuing a further judicial review proceeding and, further, that the appellants have not established special circumstances to warrant a different conclusion. In BC, the Full Court had regard to the first two of the considerations relied on by the appellants, as set out at [9] above, in finding that there were special circumstances in that case. In BC , however, the Court observed that only marginal weight could attach to the fact that the first respondent is a "statutory respondent": see [38]. The Court gave greater weight to other factors, which included the "life and liberty" consideration (also relied on here), the "complex bifurcated process of review" and the then state of the authorities: see [31] and [38]. As the first respondent submitted (and the appellants did not deny) neither of the latter two matters were significant in this case. Furthermore, the appellants' reliance on the "life and liberty" consideration amounted to saying no more than his Honour should have afforded this consideration more weight than he did. 22 Accordingly, nothing has been established that discloses relevant error in his Honour's finding (as to which see BC at [30]) that in this case there were no special circumstances of the kind that would prevent the estoppel: compare Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722 at [49], [61]-[64], [149].


case_text: First, I would not grant leave to the appellants to rely on the 15 June 2006 affidavit. As the Full Court said in NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 at [43] , a party seeking to adduce further evidence on an appeal must show, first, that he could not, with reasonable diligence, have adduced the evidence at trial and, secondly, the evidence must be such that the result would very probably have been different. It is clear enough from its contents that the 15 June 2006 affidavit cannot satisfy the first condition. Nor, having regard to the reasons stated below, can the appellants satisfy the second condition.


case_text: Secondly, I note that s 424A of the Migration Act 1958 (Cth) ("the Act ") was not enacted at the relevant time and therefore does not apply. As a consequence, the decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 has no application to this case.


case_text: Thirdly, in the circumstances of this case, it is clear enough that Anshun estoppel applies in the substantive proceeding as against the appellants. Such an estoppel bars a party from raising any point which properly belonged to the subject of earlier litigation that the party, exercising reasonable diligence, might have brought forward at the time of the earlier proceeding. Plainly enough, the "procedural fairness" ground that the appellants now seek to advance might have been brought forward for Weinberg J's consideration. Sundberg J reached the same conclusion in relation to much the same submission in MZWGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1501 (" MZWGJ "), when he rejected a similar submission that Anshun estoppel did not apply in a subsequent judicial review proceeding because of the different focus of the Muin and Lie litigation. Indeed, as counsel for the first respondent observed, the grounds of the draft order nisi considered by Weinberg J were not, in any case, confined to an alleged failure to observe procedural fairness by virtue of a failure to afford an opportunity to comment on country information, which was the focus of Muin . They went much wider than this. On one reading, moreover, the draft grounds were capable of embracing the "inconsistencies" point that the appellants sought to raise in the present proceeding. 19 In this case, the appellants relied heavily on their lack of representation before Weinberg J, although it is common ground that they were represented before the Tribunal and filed their application in the High Court with legal assistance. As Sundberg J said in MZWGJ at [11], the lack of legal representation cannot of itself amount to special circumstances sufficient to warrant the court declining to apply Anshun estoppel. I agree. There is nothing in this case that would lend particular weight to this consideration. 20 As to the fourth consideration relied on by the appellants (see [9] above), I accept the respondent's submission that his Honour was entitled to find that there was inordinate delay in not only commencing the present proceeding but also in the commencement of the order nisi application eventually heard by Weinberg J. This delay was plainly relevant, bearing in mind that delay of this kind can preclude the relief that the appellants ultimately seek even if successful.


case_text: Indeed, although it is unnecessary to decide the point, unlike his Honour, I would not accept that the substantive case that the appellants desire to make is a tenable one. The appellants' submission that they were denied procedural fairness because the Tribunal did not put all the inconsistencies mentioned in its reasons to them for comment before deciding the case against them does not disclose an arguable case. This is tolerably clear when regard is had to the well-recognized principles referred to in the first respondent's submissions: see [16] above and authorities such as Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (" Alphaone "); Pilbara Aboriginal Land Council v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539 (" Pilbara Aboriginal Land Council "); and Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Cassim [2000] HCA 50 ; (2000) 175 ALR 209 (" Cassim "). It is well established that there will be no breach of procedural fairness when the Tribunal acts on information of which applicants should be aware: see Cassim at 214 [22]. It is apparent from the Tribunal's reasons that the appellants' legal representative was present throughout the hearing and was or should have been aware of the evidence that gave rise to the inconsistencies to which the Tribunal referred in its reasons. Further, the rules of procedural fairness do not require the Tribunal to notify an applicant of its mental processes or to provide an opportunity for it to comment on its findings before they are made: Alphaone at 591-592; also Pilbara Aboriginal Land Council at 555-557 [63]-[73]; and Applicant M47/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 176 at [14] - [16] . The suggested obligation for which the appellants would contend amounts in substance to saying that the Tribunal was under obligations of a kind that the authorities have rejected.


case_title: Pilbara Aboriginal Land Council v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539


case_title: Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Cassim [2000] HCA 50 ; (2000) 175 ALR 209


case_title: Applicant M47/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 176


case_text: Accordingly, nothing has been established that discloses relevant error in his Honour's finding (as to which see BC at [30]) that in this case there were no special circumstances of the kind that would prevent the estoppel: compare Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722 at [49], [61]-[64], [149].


case_text: Natural Waters relies on the reputation of the 2003 and 2005 get-ups. The reputation that is relevant to the determination of liability in these proceedings is the reputation in the get-up that existed as at mid December 2005, the commencement of the conduct complained of ( Pub Squash Co at 861; Anheuser-Busch v Budějovick[yacute] Budvar (2002) 56 IPR 182 at [237]). The vast majority of sales and promotional activities prior to mid December 2005 related to the 2003 get-up. It follows that, as at the relevant date, absent any evidence to the contrary and absent evidence of reputation specific to the 2005 get-up, Natural Waters' reputation in the 2005 get-up subsists in the features in common between the two versions and the overall impression that they both convey.


case_text: Intent is not a necessary element of passing off or contravention of s 52 or s 53 of the Act although it may be relevant if it is shown that there was an intention to deceive ( Apand Pty Ltd v Kettle Chip Company Pty Ltd (1994) 52 FCR 474 at 496). This may give rise to an inference that the attempt succeeded and that consumers will be deceived ( Sydneywide at [117]). Where there is an intention to copy all or part of a competitor's get-up to obtain a market benefit, differences in get-up may have reduced significance. 33 As Weinberg and Dowsett JJ said in Sydneywide at [117]: ' [W] here a trader, having knowledge of a particular market, borrows aspects of a competitor's get-up, it is a reasonable inference that he or she believes that there will be a market benefit in so doing. Often, the obvious benefit will be the attraction of custom which would otherwise have gone to the competitor. It is an available inference from those propositions that the trader, with knowledge of the market, considered that such borrowing was "fitted for the purpose and therefore likely to deceive or confuse...". Of course, the trader may explain his or her conduct in such a way as to undermine the availability of that inference. Obviously, this reasoning will only apply where there are similarities in get-up which suggest borrowing .' (my emphasis) 34 Further, powerful though the inference that their Honours identified in Sydneywide may be, ' mere proof of the fact that a person has deliberately copied the name or get-up of a trade rival does not of itself establish a contravention of s 52 or a passing off of goods or services ' ( Apand at 496). The Court must still be satisfied that the consequence is a likelihood of deception or a passing off of one product for another.


case_text: Dayals criticises the absence of expert evidence concerning the reputation of Natural Waters or Fiji Water and, in particular, the absence of survey evidence as to the reputation in, and public recognition of, the "constellation of features" relied upon by Natural Waters. There is no suggestion that such survey evidence was obtained and not adduced; the evidence is that Natural Waters has not engaged market research in this area. Natural Waters has adduced evidence of the sales, marketing and promotion of Fiji Water. Natural Waters submits, with reference to Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2006) 228 ALR 719 at [11] [12] that expert evidence of reputation or consumer association would be unhelpful and inadmissible as it could amount to no more than an opinion on a matter that is not outside the experience of ordinary persons. As a general proposition, evidence as to the reputation of an applicant's packaging or get-up in the mind of the consumer may be adduced ( Interlego AG v Croner Trading Pty Limited (1992) 39 FCR 348 at 387 per Gummow J with whom Black CJ and Lockhart J agreed). The evidence ruled inadmissible in Cadbury seemed to concern the likelihood of deception rather than reputation (at [5]) and evidence of consumer recognition, in the form of a "chocolate sensory study" was admitted ( Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) (2006) 229 ALR 136 at [69]).


case_title: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) (2006) 229 ALR 136


case_text: The fact that Natural Waters may establish reputation in the Fiji Water get-up does not mean that it has a monopoly over each aspect of that get-up. The goods are ordinary articles of consumption. By their nature, goods of different manufacturers will bear some resemblance to each other. Water is sold in bottles, frequently in transparent bottles and commonly with blue caps. The marks, brands and labels play an important part in distinguishing the goods of one manufacturer from those of another ( Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 200 per Gibbs CJ). Whether the reason for the distinctiveness of Fiji Water is one or more particular aspects of its packaging or the totality of its get-up, the offending product will only mislead or deceive consumers where it has taken the distinctive aspect(s) or so much of the totality of the get-up that the overall impression or the "gestalt" of the Fiji Water brand ([38] above) is adopted. If Dayals adopted an aspect of the get-up for its product, that fact alone does not dictate a finding of passing off ( Cadbury Schweppes Pty Ltd v Pub Squash Co Pty Ltd [1980] 2 NSWLR 851 at 867; Cadbury (No 4) at [83]). 57 Natural Waters relies on the reputation of the 2003 and 2005 get-ups. The reputation that is relevant to the determination of liability in these proceedings is the reputation in the get-up that existed as at mid December 2005, the commencement of the conduct complained of ( Pub Squash Co at 861; Anheuser-Busch v Budějovick[yacute] Budvar (2002) 56 IPR 182 at [237]). The vast majority of sales and promotional activities prior to mid December 2005 related to the 2003 get-up. It follows that, as at the relevant date, absent any evidence to the contrary and absent evidence of reputation specific to the 2005 get-up, Natural Waters' reputation in the 2005 get-up subsists in the features in common between the two versions and the overall impression that they both convey.


case_text: The parties agree that the principles in Campomar Sociedad, Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45 apply in ascertaining whether there has been misleading or deceptive conduct in contravention of the Act or the Fair Trading Act . The subject matter of this litigation is bottled water. The conduct is tested as against the ordinary or reasonable member of the class of prospective purchasers of this product ( Campomar at [103]). A potential purchaser does not come to a decision with the benefit of argument as to the similarities and differences between two get-ups but is likely to make his or her decision in a relatively short period of time and in conditions which may vary ( Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 at [133]). 44 Section 52 and its equivalent provision in the Fair Trading Act provide wider protection from deception ( Campomar at [97]) but neither party has sought to rely on the distinction between the elements necessary to establish a contravention of s 52 and those to establish passing off. The question is what Island Chill would convey to a hypothetical ordinary and reasonable member of the class constituted by prospective purchasers of bottled water and whether that person would be mislead or deceived, or be likely to be misled or deceived, to conclude that Island Chill had sponsorship, association, approval or connection with Fiji Water or Natural Waters that it does not have ( Campomar at [102] [105]).


case_text: The reputation which must be proved in a case such as this is that the get-up, packaging, shape, or trade dress relied upon is associated by consumers with the applicant's product. It takes a strong case to establish a reputation of this nature ( Interlego at 386) as consumers will not necessarily associate a get-up with the applicant's product ( Collins Debden Pty Ltd v Cumberland Stationery Co Pty Ltd (No 2) [2005] FCA 1398 at [33] to [34] per Lindgren J). The requisite reputation will more readily be found where the get-up is unique or striking rather than descriptive, mundane, merely functional, or in common use.


case_text: Dayals criticises the absence of expert evidence concerning the reputation of Natural Waters or Fiji Water and, in particular, the absence of survey evidence as to the reputation in, and public recognition of, the "constellation of features" relied upon by Natural Waters. There is no suggestion that such survey evidence was obtained and not adduced; the evidence is that Natural Waters has not engaged market research in this area. Natural Waters has adduced evidence of the sales, marketing and promotion of Fiji Water. Natural Waters submits, with reference to Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2006) 228 ALR 719 at [11] [12] that expert evidence of reputation or consumer association would be unhelpful and inadmissible as it could amount to no more than an opinion on a matter that is not outside the experience of ordinary persons. As a general proposition, evidence as to the reputation of an applicant's packaging or get-up in the mind of the consumer may be adduced ( Interlego AG v Croner Trading Pty Limited (1992) 39 FCR 348 at 387 per Gummow J with whom Black CJ and Lockhart J agreed). The evidence ruled inadmissible in Cadbury seemed to concern the likelihood of deception rather than reputation (at [5]) and evidence of consumer recognition, in the form of a "chocolate sensory study" was admitted ( Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) (2006) 229 ALR 136 at [69]). 31 The determination of passing off and of contravention of the Act and the Fair Trading Act is assessed as a matter of impression based on recollection of the Fiji Water get-up and the Island Chill get-up. Whether a get-up so nearly resembles another as to be deceptive or likely to deceive is a question for the Court ( Interlego at 387). The packaging must be viewed as a whole ( Sterling Winthrop Pty Limited v R & C Products Pty Ltd (1994) ATPR 41,308 at 42,126). It is not a question of comparing the bottles side by side and engaging in a minute and detailed analysis of the similarities and differences. The observations of Windeyer J in The Shell Co of Australia Ltd v Esso Standard Oil (Australia) Ltd [1961] HCA 75 ; (1963) 109 CLR 407 at 415 as to the assessment of deceptive similarity in a trade mark context are apposite. The goods in question are inexpensive consumer goods: bottled water, where the item is purchased for a relatively small price without long consideration and where the consumer is unlikely to engage in lengthy or detailed comparison of the respective get-ups ( Kettle Chip Company Pty Ltd v Apand Pty Ltd (1993) 46 FCR 152 at 161). A consumer choosing between bottles of water on display would be likely to base the choice of purchase of his or her favoured bottled water product largely on recognition of the packaging. 59 The reputation which must be proved in a case such as this is that the get-up, packaging, shape, or trade dress relied upon is associated by consumers with the applicant's product. It takes a strong case to establish a reputation of this nature ( Interlego at 386) as consumers will not necessarily associate a get-up with the applicant's product ( Collins Debden Pty Ltd v Cumberland Stationery Co Pty Ltd (No 2) [2005] FCA 1398 at [33] to [34] per Lindgren J). The requisite reputation will more readily be found where the get-up is unique or striking rather than descriptive, mundane, merely functional, or in common use.


case_text: The evidence of the design evolution of the Island Chill get-up was addressed in detail during the cross-examination of Mr Dayal. There is little direct documentary evidence of the way in which that evolution took place. Natural Waters draws attention to the lack of evidence of instructions to the designers, including evidence as to the use or otherwise to be made of the 2003 get-up of which Mr Dayal was aware and the absence of email communication over the relevant time between Mr Dayal and the designers. Particular criticism is made of the absence of additional witnesses and of the adequacy of Dayals' discovery. In these circumstances, Natural Waters submits that the inference should be drawn that none of this evidence would have assisted Dayals' case ( Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298). 72 Mr Dayal's evidence is that he was responsible for the get-up of Island Chill. While I accept that others made suggestions, the responsibility to "sign-off" on the get-up was his. I accept his evidence as to the events which occurred. No application for further and better discovery was made and I do not accept that Dayals failed to discover all relevant documents in their possession or failed to comply with their obligations of discovery. 73 Natural Waters and Dayals promote their products on the internet. Natural Waters invites the Court to draw inferences from the similarities between Island Chill's website (www.islandchill.com) and the Fiji Water website (www.fijiwater.com).


case_text: The determination of passing off and of contravention of the Act and the Fair Trading Act is assessed as a matter of impression based on recollection of the Fiji Water get-up and the Island Chill get-up. Whether a get-up so nearly resembles another as to be deceptive or likely to deceive is a question for the Court ( Interlego at 387). The packaging must be viewed as a whole ( Sterling Winthrop Pty Limited v R & C Products Pty Ltd (1994) ATPR 41,308 at 42,126). It is not a question of comparing the bottles side by side and engaging in a minute and detailed analysis of the similarities and differences. The observations of Windeyer J in The Shell Co of Australia Ltd v Esso Standard Oil (Australia) Ltd [1961] HCA 75 ; (1963) 109 CLR 407 at 415 as to the assessment of deceptive similarity in a trade mark context are apposite. The goods in question are inexpensive consumer goods: bottled water, where the item is purchased for a relatively small price without long consideration and where the consumer is unlikely to engage in lengthy or detailed comparison of the respective get-ups ( Kettle Chip Company Pty Ltd v Apand Pty Ltd (1993) 46 FCR 152 at 161). A consumer choosing between bottles of water on display would be likely to base the choice of purchase of his or her favoured bottled water product largely on recognition of the packaging.


case_text: In McCormick & Co Inc v McCormick (2000) 51 IPR 102 at [81] to [88], Kenny J discussed the evidence necessary or sufficient to establish reputation in a trade mark. Her Honour pointed out that evidence of sales and advertising may be sufficient to establish reputation despite the absence of any direct evidence of consumer appreciation of the mark, as opposed to the product: ' public awareness of and regard for a mark tends to correlate with appreciation of the products with which the mark is associated, as evidenced by sales volume, among other things ' (at [86]). Such factors may also establish the reputation necessary to found a case for passing off and contravention of s 52 of the Act (for example, Pacific Publications Pty Ltd v Next Publishing Pty Ltd (2005) 222 ALR 127 at [12] to [14]).


case_title: Pacific Publications Pty Ltd v Next Publishing Pty Ltd (2005) 222 ALR 127


case_text: The fact that Natural Waters may establish reputation in the Fiji Water get-up does not mean that it has a monopoly over each aspect of that get-up. The goods are ordinary articles of consumption. By their nature, goods of different manufacturers will bear some resemblance to each other. Water is sold in bottles, frequently in transparent bottles and commonly with blue caps. The marks, brands and labels play an important part in distinguishing the goods of one manufacturer from those of another ( Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 200 per Gibbs CJ). Whether the reason for the distinctiveness of Fiji Water is one or more particular aspects of its packaging or the totality of its get-up, the offending product will only mislead or deceive consumers where it has taken the distinctive aspect(s) or so much of the totality of the get-up that the overall impression or the "gestalt" of the Fiji Water brand ([38] above) is adopted. If Dayals adopted an aspect of the get-up for its product, that fact alone does not dictate a finding of passing off ( Cadbury Schweppes Pty Ltd v Pub Squash Co Pty Ltd [1980] 2 NSWLR 851 at 867; Cadbury (No 4) at [83]).


case_text: Whether Dayals is passing off its goods as those of Natural Waters depends on the reputation attached to Fiji Water's identifying get-up so that it is distinctive of bottled water sold by Natural Waters; a representation by Dayals leading or likely to lead consumers to believe that Island Chill is the product of Natural Waters; and actual or probable damage ( Reckitt & Colman Products Ltd v Borden Inc (1990) 17 IPR 1 at 7 per Lord Oliver; TGI Friday's Australia Pty Ltd v TGI Friday's Inc (1999) 45 IPR 43 at [25]; Sydneywide at [60]). Where a get-up of a product is distinctive of that product and its trade source, there may be passing off and contravention of the Act and the Fair Trading Act even though the products bear different brands or labels.


case_text: The primary judge concluded that Sydneywide had intentionally adopted the Red Bull get-up for its packaging for the purpose of appropriating part of its trade or reputation and that it had selected a get-up which would "sail as close to the wind" as it thought expedient ( Red Bull Australia Pty Ltd v Sydneywide Distributors Pty Ltd (2001) 53 IPR 481 at [47]). That finding formed an important basis for his Honour's conclusion that there was passing off and breach of s 52 of the Act as it led to the finding that there was scope for a purchaser to believe that both products emanated from the same "manufacturing stable", especially where the different brand names were not readily discernible ( Red Bull at [69], cited in Sydneywide at [47]). 40 Weinberg and Dowsett JJ, with whom Branson J agreed discussed, at [55] and following, the elements of passing off and the relevance of the intent of the party accused. Their Honours concluded (at [62]) that there is no requirement that there be an actual, subjective intention to mislead; the misrepresentation need only be likely to lead the public to believe that the goods are those of the applicant. 41 There were differences in the get-up and the brand name. The relevance of the differences depended on the opportunity which a potential purchaser would have to observe those distinctions (at [72]). The parties adduced expert evidence before the primary judge of the likely behaviour of shoppers or consumers with respect to the products there in dispute. The evidence, as well as "experience and common sense", suggested that relatively little attention would be given to the choice of a particular item for removal from the refrigerator for purchase (at [74]). 42 Weinberg and Dowsett JJ considered at [107] the difference between and prominence of the brand names. The brand names were said to have similar associated connotations. Their Honours said that, where the purchaser may have in mind the connotations of the name rather than the name itself, such similarities may tend to undermine what might otherwise be a basis for clear distinction. Similar colour combinations and the diagonal thrust of design, notwithstanding the fact that other minor players in the market traded under similar colours, affected the Court's conclusion that there was a capacity to deceive. 43 Natural Waters' case as pleaded against Artesian Waters alleges contraventions of ss 52 , 53 (c) and 53 (d) of the Act and passing off. A separate case for s 53(c) and (d) was not pursued in submissions. It is alleged against Mr Dayal and Mr Pranesh Dayal that they have: • been knowingly concerned, within the meaning of s 75B of the Act, in the alleged contraventions of the Act by Artesian Waters; • contravened the equivalent provisions of the Fair Trading Act (ss 42, 44(e) and 44(f)); and • engaged in passing off as joint tortfeasors with Artesian Waters.


case_outcome: considered

case_text: Natural Waters placed reliance on two cases: Remy Martin v Carlton Wines & Spirits (Aust) Pty Ltd (unreported, O'Loughlin J, 19 February 1992) and Sydneywide . 36 In Remy Martin , the comparison was between "Liquore Galliano" and "Valentino". Justice O'Loughlin found that "Liquore Galliano" was a product that ' virtually "owns" its niche within the liqueur market...it is thereby unique and ... its unchanged labelling and get-up have become distinctive and synonymous (sic) with its uniqueness ' (at [106]). The accused bottles were very different in shape and it was said to be "impossible" for any person to confuse them. The names were also different: "Galliano" and "Valentino", with the latter name prominently displayed. There were less important differences on the rear labels and in the writing on the front label. The respondents denied copying but said that the goal was to obtain "a similar feel" to the Galliano label. For example, a fort appeared on the Galliano label; a castle motif was adopted by Valentino. The defence was that the castle was chosen not to suggest an association with Galliano but because of its Italian or European association. 37 Justice O'Loughlin concluded that the respondents, former franchisees of Galliano products, set about to "filch" as much of the Galliano label and get-up as they thought would be safe to withstand legal challenge (at [114]). His Honour found that the choice of a castle was an attempt to attract the eye of the intending purchaser in the hope that he or she would mistake the product for the Galliano range (at [115]). It ' destroyed the bona fides of the respondents' case ' (at [116]). A reference to a cocktail associated with Galliano also achieved a ' marked degree of importance ' (at [117]). Justice O'Loughlin concluded that, standing back and avoiding minutiae, there was ' an overwhelming sense of association as if the proprietors of "Liquore Galliano" might have decided to market their product in a different bottle with a different name '. 38 In Sydneywide , two competing energy drink products, "Red Bull" and "LiveWire", were packaged in cans of similar size and colour. The cans each had a "strong diagonal thrust" in their design. There were significant differences, including the brand names and the forms of writing on the cans. There was emphasis, by an expert witness at trial, on what was described as the "gestalt" of the brand, in the sense of '[a] n integrated perceptual structure or unity conceived, as functionally more than the sum of its parts ', which was said to be ' almost identical ' (at [41] and [91]). 81 Mr Dayal readily conceded that he wished to take advantage of a growing world market demand for bottled water. Mr Dayal is Fijian and the family businesses are based in Fiji. He appreciated that Fiji was a good source from which to meet such a demand and he had the opportunity and business experience to develop that market. Unlike O'Loughlin J in Remy Martin , I am not satisfied that Mr Dayal had the intention to market a bottled water product that would be associated with Fiji Water. He was aware of the need to "distance" his product from Fiji Water, not least for legal reasons. I accept Mr Dayal's evidence of his intentions and of the process of design of Island Chill, for which he was responsible at the decision-making level. 82 I am firmly of the view that the ordinary or reasonable consumer of bottled water would not confuse Fiji Water and Island Chill or be misled, or be likely to be misled, into believing that they were in any way associated, other than both being a product of Fiji. This is so whether the consumer paused to consider the bottles or made the choice with only a "transitory" glance. Natural Waters emphasises the distinctive aspects of the Fiji Water get-up. Two of the most distinctive are the square shaped bottle and the name "FIJI" in capital letters, in white, outlined by gold. Island Chill is in a bottle with an elongated shape, totally different although square faced, from the distinctive shape of the Fiji Water bottle. The name Island Chill is prominent and appears totally different in script, colour, name and style to the "FIJI" of Fiji Water. Those aspects alone are, in my opinion, sufficient clearly to differentiate the two products. 83 The blue cap, transparent label, three-dimensional background, tropical flower motif and colour and nature of the three-dimensional background are not displayed only on bottles of Fiji Water. They have been utilised in Australia by other manufacturers of bottled water. They do, however, form part of the overall impression or effect of Fiji Water, although there are differences between the 2003 get-up and the 2005 get-up. In each case, the use made of these devices by Island Chill is different. The blue cap is of a different colour; the single hibiscus is different to the 2003 get-up and of a different colour and position to the 2005 get-up; the three-dimensional scene is different and of a different predominant colour to each of the 2003 and 2005 get-ups. Importantly, the overall effect of the combination of each aspect of the design is different and sufficiently so to differentiate Island Chill from the 2003 get-up and the 2005 get-up. Unlike Sydneywide , there is no "gestalt" common to Island Chill and Fiji Water. The products simply look different. The ordinary consumer would not be misled or deceived into believing that they were from the same manufacturer or in some way commercially associated. The ordinary consumer would not believe that Island Chill was the product of Natural Waters or associated with Natural Waters or Fiji Water or was a bottle of Fiji Water.


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


case_text: The parties agree that the principles in Campomar Sociedad, Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45 apply in ascertaining whether there has been misleading or deceptive conduct in contravention of the Act or the Fair Trading Act . The subject matter of this litigation is bottled water. The conduct is tested as against the ordinary or reasonable member of the class of prospective purchasers of this product ( Campomar at [103]). A potential purchaser does not come to a decision with the benefit of argument as to the similarities and differences between two get-ups but is likely to make his or her decision in a relatively short period of time and in conditions which may vary ( Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 at [133]).


case_title: TGI Friday's Australia Pty Ltd v TGI Friday's Inc (1999) 45 IPR 43


case_title: The Shell Co of Australia Ltd v Esso Standard Oil (Australia) Ltd [1961] HCA 75 ; (1963) 109 CLR 407


case_text: The guiding principles which attend whether to grant leave to appeal are well settled: see Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1993) 33 FCR 397 (Full Court). Having regard to what was said in that case, considerations to which the Court should ordinarily advert in deciding a leave to appeal application may be summarised as follows: (a) the prospects of success of the proposed appeal, i.e. whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by a Full Court; and (b) whether substantial injustice would result were leave to appeal refused, supposing the decision to be wrong. 16 The Full Court's judgment in Décor Corporation also serves as a reminder that these considerations are not exhaustive and in no way preclude regard to special considerations which might, in a particular case, tend either for or against a grant of leave to appeal. 17 Further, the very fact that Parliament has chosen in s 24 of the Federal Court of Australia Act to excise interlocutory judgments and orders from being the subject of an appeal as of right is itself eloquent. The making of a judicial value judgment in relation to whether an appeal ought to be permitted was plainly envisaged as a way of preventing indiscriminate appeals in respect of judgments and orders falling within the excised class. In that regard, both prior authority and instinct commend that there is a distinction to be drawn when considering an application for leave to appeal between an interlocutory judgment or order which determined a mere matter of practice and procedure and one which, at least in a practical sense, can be seen to have affected a substantive right, even if strictly not in a way that would render the judgment or order "final". There is obvious potential for too ready a grant of leave to appeal against a judgment or order of the former type to result in: (a) a postponement of a final determination of the substantive issues between the parties; (b) additional burdens in both legal expenses and emotion, the one not usually fully compensated by a costs order in favour of a successful Respondent; the other, even in that circumstance, for which such a Respondent is not at all compensated; (c) related oppression of a less economically (or emotionally) well resourced party at the behest of another party who is either better resourced or so bereft of resources as to be indifferent to potentially adverse costs consequences if an interlocutory appeal were unsuccessful. 18 Applying these guiding principles to the circumstances of this application, I am in no doubt that leave to appeal should be refused.