case_text: The argument proceeded as follows: (1) the express words of s 40 of the Extradition Act had its origins in the decision of Barwick CJ in Barton v Commonwealth [1974] HCA 20 ; (1974) 131 CLR 477. That case concerned s 21 of the Extradition (Foreign States) Act 1966 (Cth) ("the 1966 Act") which provided that " the Attorney-General may make a requisition to [a foreign state] for the surrender of the person ." Barwick CJ stated that the Crown prerogative to seek and accept the surrender of a fugitive from a treaty state to which the 1966 Act applied had been wholly displaced and that the " only power " to requisition a treaty state for the surrender of a fugitive was that of the Attorney-General: at 487. In other words, if a treaty exists between Australia and a foreign state regulating the surrender and requests for surrender of fugitives, then the Extradition Act wholly replaced the prerogative power to make a request for the return of a fugitive to Australia: Barwick CJ in Barton at 487; (2) the Extradition Act was enacted in 1988. Its principal objectives are stated in s 3 to be: "(a) to codify the law relating to the extradition of persons from Australia to extradition countries and New Zealand and, in particular, to provide for proceedings by which courts may determine whether a person is to be, or is eligible to be, extradited, without determining the guilt or innocence of the person of an offence; (b) to facilitate the making of requests for extradition by Australia to other countries; and (c) to enable Australia to carry out its obligations under extradition treaties." (3) consistent with the language adopted by Barwick CJ in Barton , s 40 of the Extradition Act states that: "A request by Australia for the surrender of a person from a country ... in relation to an offence against a law of Australia of which the person is accused or of which the person has been convicted shall only be made by or with the authority of the Attorney-General ." (Emphasis added.) (4) the Replacement Explanatory Memorandum to the Extradition Bill 1987 supports the contention that any request is only to be made by or with the authority of the Attorney-General. In relation to what became s 40 of the Extradition Act , the Explanatory Memorandum states at 41: "This clause makes it clear that the only way in which extradition can be requested by Australia ...is by or with the authority of the Attorney-General ...." (5) the express words of s 40 of the Extradition Act are clear and unambiguous and mean what they say: Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 26 ; (1981) 147 CLR 297 at 305 (per Gibbs CJ); (6) the Extradition Act involves the liberty of the subject and where statutory authority is given to interfere with that liberty, such interference can be effected only in accordance with the terms and conditions of that grant: Cabal v United Mexican States (No. 3) (2000) 186 ALR 188 at [126] to [134]; (7) the following passage of the unanimous decision of the High Court in Oates v Attorney-General (Cth) [2003] HCA 21 ; (2003) 214 CLR 496 at [39] that considered a request for extradition to Poland signed by the Attorney-General under s 40 of the Extradition Act explains the correct way in which a request to a foreign state is to be made and raises the question why the Request in relation to the Applicant was not signed by the Attorney-General: "Section 40 of the Act is not expressed as a source of power to make requests for extradition. The power to make a request is vested in the Executive Government. Section 40 assumes the existence of the power, and regulates its exercise by providing that a request shall only be made by or with the authority of the Attorney-General. The request in the present case complied with that provision. " (Emphasis added.) 18 The Executive Government is established by Ch 2 of the Constitution . By virtue of s 61 of the Constitution , the executive power of the Commonwealth extends to the " execution and maintenance of [the] Constitution , and of the laws of the Commonwealth. " As Latham CJ said in R v Burgess; ex parte Henry [1936] HCA 52 ; (1936) 55 CLR 608 at 643 644 cited by Mason J in Barton v Commonwealth [1974] HCA 20 ; (1974) 131 CLR 477 at 498: "The execution and maintenance of the Constitution , particularly when considered in relation to other countries, involves ... the establishment of relations at any time with other countries, including the acquisition of rights and obligations upon the international plane." 19 A request to a foreign state for the surrender of a person convicted of, or alleged to have committed, an offence against the laws of Australia is within the sphere of executive power: Barton at 484 - 485 (Barwick CJ), at 491 (McTiernan and Menzies JJ), at 498 (Mason J) and at 505 (Jacobs J). While it is now accepted that legislative power has abrogated executive power in respect of the extradition of persons from Australia (see s 3(a) of the Extradition Act which purports to " codify the law relating to the extradition of persons from Australia... "), requests for the return of fugitives to Australia remains an exercise of executive power. This power cannot be displaced except by a clear and unambiguous legislative provision to the contrary. Part IV of the Extradition Act does not displace or even attempt to displace the executive power to seek the return of fugitives to Australia: Oates at [32] to [35], [38] and [39] (Gleeson CJ, McHugh, Gummow, Kirby, Hayne and Heydon JJ) and Barton at 491 (McTiernan and Menzies JJ), at 501 (Mason J) and at 508 (Jacobs J); cf Barton at 488 (Barwick CJ). 20 Consistent with that principle, s 40 of the Extradition Act is not expressed as a source of power. It properly assumes that the power to make a request to a foreign state is vested in the executive: see Truong v R [2004] HCA 10 ; (2004) 223 CLR 122 at [80] ; Oates at [29] and [39]; Barton at 484 (Barwick CJ), 490 491 (McTiernan and Menzies JJ), 498 499 (Mason J), 505 508 (Jacobs J); see also Replacement Explanatory Memorandum, Extradition Bill 1987 (Cth) at 41.


case_outcome: cited

case_text: The argument proceeded as follows: (1) the express words of s 40 of the Extradition Act had its origins in the decision of Barwick CJ in Barton v Commonwealth [1974] HCA 20 ; (1974) 131 CLR 477. That case concerned s 21 of the Extradition (Foreign States) Act 1966 (Cth) ("the 1966 Act") which provided that " the Attorney-General may make a requisition to [a foreign state] for the surrender of the person ." Barwick CJ stated that the Crown prerogative to seek and accept the surrender of a fugitive from a treaty state to which the 1966 Act applied had been wholly displaced and that the " only power " to requisition a treaty state for the surrender of a fugitive was that of the Attorney-General: at 487. In other words, if a treaty exists between Australia and a foreign state regulating the surrender and requests for surrender of fugitives, then the Extradition Act wholly replaced the prerogative power to make a request for the return of a fugitive to Australia: Barwick CJ in Barton at 487; (2) the Extradition Act was enacted in 1988. Its principal objectives are stated in s 3 to be: "(a) to codify the law relating to the extradition of persons from Australia to extradition countries and New Zealand and, in particular, to provide for proceedings by which courts may determine whether a person is to be, or is eligible to be, extradited, without determining the guilt or innocence of the person of an offence; (b) to facilitate the making of requests for extradition by Australia to other countries; and (c) to enable Australia to carry out its obligations under extradition treaties." (3) consistent with the language adopted by Barwick CJ in Barton , s 40 of the Extradition Act states that: "A request by Australia for the surrender of a person from a country ... in relation to an offence against a law of Australia of which the person is accused or of which the person has been convicted shall only be made by or with the authority of the Attorney-General ." (Emphasis added.) (4) the Replacement Explanatory Memorandum to the Extradition Bill 1987 supports the contention that any request is only to be made by or with the authority of the Attorney-General. In relation to what became s 40 of the Extradition Act , the Explanatory Memorandum states at 41: "This clause makes it clear that the only way in which extradition can be requested by Australia ...is by or with the authority of the Attorney-General ...." (5) the express words of s 40 of the Extradition Act are clear and unambiguous and mean what they say: Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 26 ; (1981) 147 CLR 297 at 305 (per Gibbs CJ); (6) the Extradition Act involves the liberty of the subject and where statutory authority is given to interfere with that liberty, such interference can be effected only in accordance with the terms and conditions of that grant: Cabal v United Mexican States (No. 3) (2000) 186 ALR 188 at [126] to [134]; (7) the following passage of the unanimous decision of the High Court in Oates v Attorney-General (Cth) [2003] HCA 21 ; (2003) 214 CLR 496 at [39] that considered a request for extradition to Poland signed by the Attorney-General under s 40 of the Extradition Act explains the correct way in which a request to a foreign state is to be made and raises the question why the Request in relation to the Applicant was not signed by the Attorney-General: "Section 40 of the Act is not expressed as a source of power to make requests for extradition. The power to make a request is vested in the Executive Government. Section 40 assumes the existence of the power, and regulates its exercise by providing that a request shall only be made by or with the authority of the Attorney-General. The request in the present case complied with that provision. " (Emphasis added.) 60 French J made the following observations on the application of non-adjudication to extradition cases in Cabal v United Mexican States (No. 3) (2000) 186 ALR 188 at [104]: "[I]t is important to bear in mind that the general functioning of the judicial system of an extradition country is not a matter for this court. Such judgments, no doubt, have a part to play in the decision of the executive government in entering into the treaty. They may also, at least in theory, have a bearing upon the legislative decision whether or not to disallow particular treaty regulations and in the ultimate decision of an Attorney-General whether or not to surrender a requested person. The acceptability to Australia of the system of criminal justice in an extradition country is an issue "...to be determined by the Government of the Commonwealth when deciding to extend the application of the Extradition Act to the State in question, whether by treaty or regulation, and, in a given case, perhaps before ordering the surrender of the fugitive ... in exercise of the discretion ... given the Attorney-General": Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 514; 86 ALR 464 per Gummow J. That is not to say that governments and judicial systems of requesting countries may not have changed significantly since a treaty of extradition was entered into. But the continuance of the treaty and ultimate surrender decisions are still matters for the executive and not for the courts. " (Emphasis added.) See also Todhunter v Attorney-General (Cth) (1994) 52 FCR 228 at 250 251; Sun Lau v Australia [1999] BCJ No 2971 at [73] [77] citing United States of America v McVey (1992) 77 C.C.C. (3d) 1 (S.C.C.) at 40 and Schmidt v the Queen (1987) 33 C.C.C. (3d) 193 (S.C.C.); McCrea v Minister for Customs and Justice (2004) 212 ALR 297 at [33] [36] citing R v Secretary of State for the Home Department; ex parte Johnson [1998] 4 All ER 635 at 644, Royal Government of Greece v Governor of Brixton Prison [1971] AC 250 at 280 and Republic of Argentina v Mellino [1987] 1 SCR 536 at 554; R v Secretary of State for the Home Department; ex parte Hill [1999] QB 886 at 905.


case_text: Thirdly, it could not have been expected by Parliament that the Attorney-General personally would exercise each of the powers reposed in the Attorney-General under the Extradition Act in each and every case where extradition is sought from Australia or to Australia: see Lord Greene MR in Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 at 563.


case_text: The argument proceeded as follows: (1) the express words of s 40 of the Extradition Act had its origins in the decision of Barwick CJ in Barton v Commonwealth [1974] HCA 20 ; (1974) 131 CLR 477. That case concerned s 21 of the Extradition (Foreign States) Act 1966 (Cth) ("the 1966 Act") which provided that " the Attorney-General may make a requisition to [a foreign state] for the surrender of the person ." Barwick CJ stated that the Crown prerogative to seek and accept the surrender of a fugitive from a treaty state to which the 1966 Act applied had been wholly displaced and that the " only power " to requisition a treaty state for the surrender of a fugitive was that of the Attorney-General: at 487. In other words, if a treaty exists between Australia and a foreign state regulating the surrender and requests for surrender of fugitives, then the Extradition Act wholly replaced the prerogative power to make a request for the return of a fugitive to Australia: Barwick CJ in Barton at 487; (2) the Extradition Act was enacted in 1988. Its principal objectives are stated in s 3 to be: "(a) to codify the law relating to the extradition of persons from Australia to extradition countries and New Zealand and, in particular, to provide for proceedings by which courts may determine whether a person is to be, or is eligible to be, extradited, without determining the guilt or innocence of the person of an offence; (b) to facilitate the making of requests for extradition by Australia to other countries; and (c) to enable Australia to carry out its obligations under extradition treaties." (3) consistent with the language adopted by Barwick CJ in Barton , s 40 of the Extradition Act states that: "A request by Australia for the surrender of a person from a country ... in relation to an offence against a law of Australia of which the person is accused or of which the person has been convicted shall only be made by or with the authority of the Attorney-General ." (Emphasis added.) (4) the Replacement Explanatory Memorandum to the Extradition Bill 1987 supports the contention that any request is only to be made by or with the authority of the Attorney-General. In relation to what became s 40 of the Extradition Act , the Explanatory Memorandum states at 41: "This clause makes it clear that the only way in which extradition can be requested by Australia ...is by or with the authority of the Attorney-General ...." (5) the express words of s 40 of the Extradition Act are clear and unambiguous and mean what they say: Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 26 ; (1981) 147 CLR 297 at 305 (per Gibbs CJ); (6) the Extradition Act involves the liberty of the subject and where statutory authority is given to interfere with that liberty, such interference can be effected only in accordance with the terms and conditions of that grant: Cabal v United Mexican States (No. 3) (2000) 186 ALR 188 at [126] to [134]; (7) the following passage of the unanimous decision of the High Court in Oates v Attorney-General (Cth) [2003] HCA 21 ; (2003) 214 CLR 496 at [39] that considered a request for extradition to Poland signed by the Attorney-General under s 40 of the Extradition Act explains the correct way in which a request to a foreign state is to be made and raises the question why the Request in relation to the Applicant was not signed by the Attorney-General: "Section 40 of the Act is not expressed as a source of power to make requests for extradition. The power to make a request is vested in the Executive Government. Section 40 assumes the existence of the power, and regulates its exercise by providing that a request shall only be made by or with the authority of the Attorney-General. The request in the present case complied with that provision. " (Emphasis added.)


case_outcome: considered

case_text: Thirdly, the history of s 19A(1) of the AI Act does not support the Applicant's contention. Section 19A(1) of the AI Act , in its current form, was enacted following the decision of Spender J in Foster v Attorney-General (1998) 158 ALR 394. That case concerned s 19 of the AI Act which, at that time, read: "Where in an Act any Minister is referred to, such reference shall unless the contrary intention appears, be deemed to include any Minister or member of the Executive Council for the time being acting for or on behalf of such Minister." Foster sought to challenge a warrant for his surrender which had been issued by the Justice Minister under s 23 of the Extradition Act on the ground, inter alia, that the warrant was a nullity because the discretion in s 22(2) of the Extradition Act could only be lawfully exercised by the Attorney-General and not the Justice Minister. 36 Spender J held that s 22(2) of the Extradition Act required the surrender of a person be determined by the Attorney-General or, by application of s 19 of the AI Act , by a Minister or member of the Executive Council validly authorized to act for the time being on behalf of the Attorney-General. At a practical level, Spender J held that s 19 of the AI Act was an interpretation section which was confined in its operation to cases of temporary absence, for example when a Minister was on holiday or was sick, and that the authorisation for another Minister to perform had to be by the Prime Minister or Cabinet rather than by the authorising Minister: Foster v Attorney-General (1998) 158 ALR 394 at 408.


case_title: Gamogab v Akiba (2007) 159 FCR 578

case_text: The courts of one country will not sit in judgment on the acts of the government of another done within its own territory. This principle of non-adjudication is consistent with the international rule of comity which refers to the respect or courtesy accorded by a country to the laws and institutions of another. This was made clear in Attorney-General in and for the United Kingdom v Heinemann Publishers Australia Pty Ltd [1988] HCA 25 ; (1988) 165 CLR 30 at 40-41: "The rule is associated with a related principle of international law, which has long been recognized, namely that, in general, courts will not adjudicate upon the validity of acts and transactions of a foreign sovereign State within that sovereign's own territory. The statement of Fuller C.J. in Underhill v Hernandez [(1897) 168 U.S. 250, at 252] that "the courts of one country will not sit in judgment on the acts of the government of another done within its own territory" has been repeated with approval in the House of Lords ( Buttes Gas v Hammer [[1982] A.C. 888, at 933]) and the Supreme Court of the United States: Banco Nacional de Cuba v Sabbatino [(1964) 376 U.S. 398, at 416]. So, in Oetjen v Central Leather Co . [(1918) 246 U.S. 297, at 304] the Supreme Court said: "To permit the validity of the acts of one sovereign State to be re-examined and perhaps condemned by the courts of another would very certainly 'imperil the amicable relations between governments and vex the peace of nations'." As Lord Wilberforce observed in Buttes Gas v Hammer [[1982] A.C., at 931-932], in the context of considering the United States decisions, the principle is one of "judicial restraint or abstention" and is "inherent in the very nature of the judicial process". See also Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538 at 559 (Mason CJ, Deane, Dawson and Gaudron JJ); McCrea v Minister for Customs and Justice (2004) 212 ALR 297 at [27] [30] (North J) and Gamogab v Akiba (2007) 159 FCR 578 at [32] (Kiefel J).


case_text: The courts of one country will not sit in judgment on the acts of the government of another done within its own territory. This principle of non-adjudication is consistent with the international rule of comity which refers to the respect or courtesy accorded by a country to the laws and institutions of another. This was made clear in Attorney-General in and for the United Kingdom v Heinemann Publishers Australia Pty Ltd [1988] HCA 25 ; (1988) 165 CLR 30 at 40-41: "The rule is associated with a related principle of international law, which has long been recognized, namely that, in general, courts will not adjudicate upon the validity of acts and transactions of a foreign sovereign State within that sovereign's own territory. The statement of Fuller C.J. in Underhill v Hernandez [(1897) 168 U.S. 250, at 252] that "the courts of one country will not sit in judgment on the acts of the government of another done within its own territory" has been repeated with approval in the House of Lords ( Buttes Gas v Hammer [[1982] A.C. 888, at 933]) and the Supreme Court of the United States: Banco Nacional de Cuba v Sabbatino [(1964) 376 U.S. 398, at 416]. So, in Oetjen v Central Leather Co . [(1918) 246 U.S. 297, at 304] the Supreme Court said: "To permit the validity of the acts of one sovereign State to be re-examined and perhaps condemned by the courts of another would very certainly 'imperil the amicable relations between governments and vex the peace of nations'." As Lord Wilberforce observed in Buttes Gas v Hammer [[1982] A.C., at 931-932], in the context of considering the United States decisions, the principle is one of "judicial restraint or abstention" and is "inherent in the very nature of the judicial process". See also Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538 at 559 (Mason CJ, Deane, Dawson and Gaudron JJ); McCrea v Minister for Customs and Justice (2004) 212 ALR 297 at [27] [30] (North J) and Gamogab v Akiba (2007) 159 FCR 578 at [32] (Kiefel J). 60 French J made the following observations on the application of non-adjudication to extradition cases in Cabal v United Mexican States (No. 3) (2000) 186 ALR 188 at [104]: "[I]t is important to bear in mind that the general functioning of the judicial system of an extradition country is not a matter for this court. Such judgments, no doubt, have a part to play in the decision of the executive government in entering into the treaty. They may also, at least in theory, have a bearing upon the legislative decision whether or not to disallow particular treaty regulations and in the ultimate decision of an Attorney-General whether or not to surrender a requested person. The acceptability to Australia of the system of criminal justice in an extradition country is an issue "...to be determined by the Government of the Commonwealth when deciding to extend the application of the Extradition Act to the State in question, whether by treaty or regulation, and, in a given case, perhaps before ordering the surrender of the fugitive ... in exercise of the discretion ... given the Attorney-General": Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 514; 86 ALR 464 per Gummow J. That is not to say that governments and judicial systems of requesting countries may not have changed significantly since a treaty of extradition was entered into. But the continuance of the treaty and ultimate surrender decisions are still matters for the executive and not for the courts. " (Emphasis added.) See also Todhunter v Attorney-General (Cth) (1994) 52 FCR 228 at 250 251; Sun Lau v Australia [1999] BCJ No 2971 at [73] [77] citing United States of America v McVey (1992) 77 C.C.C. (3d) 1 (S.C.C.) at 40 and Schmidt v the Queen (1987) 33 C.C.C. (3d) 193 (S.C.C.); McCrea v Minister for Customs and Justice (2004) 212 ALR 297 at [33] [36] citing R v Secretary of State for the Home Department; ex parte Johnson [1998] 4 All ER 635 at 644, Royal Government of Greece v Governor of Brixton Prison [1971] AC 250 at 280 and Republic of Argentina v Mellino [1987] 1 SCR 536 at 554; R v Secretary of State for the Home Department; ex parte Hill [1999] QB 886 at 905.


case_text: The argument proceeded as follows: (1) the express words of s 40 of the Extradition Act had its origins in the decision of Barwick CJ in Barton v Commonwealth [1974] HCA 20 ; (1974) 131 CLR 477. That case concerned s 21 of the Extradition (Foreign States) Act 1966 (Cth) ("the 1966 Act") which provided that " the Attorney-General may make a requisition to [a foreign state] for the surrender of the person ." Barwick CJ stated that the Crown prerogative to seek and accept the surrender of a fugitive from a treaty state to which the 1966 Act applied had been wholly displaced and that the " only power " to requisition a treaty state for the surrender of a fugitive was that of the Attorney-General: at 487. In other words, if a treaty exists between Australia and a foreign state regulating the surrender and requests for surrender of fugitives, then the Extradition Act wholly replaced the prerogative power to make a request for the return of a fugitive to Australia: Barwick CJ in Barton at 487; (2) the Extradition Act was enacted in 1988. Its principal objectives are stated in s 3 to be: "(a) to codify the law relating to the extradition of persons from Australia to extradition countries and New Zealand and, in particular, to provide for proceedings by which courts may determine whether a person is to be, or is eligible to be, extradited, without determining the guilt or innocence of the person of an offence; (b) to facilitate the making of requests for extradition by Australia to other countries; and (c) to enable Australia to carry out its obligations under extradition treaties." (3) consistent with the language adopted by Barwick CJ in Barton , s 40 of the Extradition Act states that: "A request by Australia for the surrender of a person from a country ... in relation to an offence against a law of Australia of which the person is accused or of which the person has been convicted shall only be made by or with the authority of the Attorney-General ." (Emphasis added.) (4) the Replacement Explanatory Memorandum to the Extradition Bill 1987 supports the contention that any request is only to be made by or with the authority of the Attorney-General. In relation to what became s 40 of the Extradition Act , the Explanatory Memorandum states at 41: "This clause makes it clear that the only way in which extradition can be requested by Australia ...is by or with the authority of the Attorney-General ...." (5) the express words of s 40 of the Extradition Act are clear and unambiguous and mean what they say: Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 26 ; (1981) 147 CLR 297 at 305 (per Gibbs CJ); (6) the Extradition Act involves the liberty of the subject and where statutory authority is given to interfere with that liberty, such interference can be effected only in accordance with the terms and conditions of that grant: Cabal v United Mexican States (No. 3) (2000) 186 ALR 188 at [126] to [134]; (7) the following passage of the unanimous decision of the High Court in Oates v Attorney-General (Cth) [2003] HCA 21 ; (2003) 214 CLR 496 at [39] that considered a request for extradition to Poland signed by the Attorney-General under s 40 of the Extradition Act explains the correct way in which a request to a foreign state is to be made and raises the question why the Request in relation to the Applicant was not signed by the Attorney-General: "Section 40 of the Act is not expressed as a source of power to make requests for extradition. The power to make a request is vested in the Executive Government. Section 40 assumes the existence of the power, and regulates its exercise by providing that a request shall only be made by or with the authority of the Attorney-General. The request in the present case complied with that provision. " (Emphasis added.) 17 The object of Part IV of the Extradition Act entitled " Extradition to Australia from Other Countries " (of which s 40 forms part) is " to facilitate the making of requests for extradition by Australia to other countries" : s 3(b) of the Extradition Act . It is not a code: Oates v Attorney-General (Cth) [2003] HCA 21 ; (2003) 214 CLR 496 at [38] (per Gleeson CJ, McHugh, Gummow, Kirby, Hayne and Heydon JJ). A request to a foreign state for the return of a fugitive to Australia remains an exercise of executive power. 19 A request to a foreign state for the surrender of a person convicted of, or alleged to have committed, an offence against the laws of Australia is within the sphere of executive power: Barton at 484 - 485 (Barwick CJ), at 491 (McTiernan and Menzies JJ), at 498 (Mason J) and at 505 (Jacobs J). While it is now accepted that legislative power has abrogated executive power in respect of the extradition of persons from Australia (see s 3(a) of the Extradition Act which purports to " codify the law relating to the extradition of persons from Australia... "), requests for the return of fugitives to Australia remains an exercise of executive power. This power cannot be displaced except by a clear and unambiguous legislative provision to the contrary. Part IV of the Extradition Act does not displace or even attempt to displace the executive power to seek the return of fugitives to Australia: Oates at [32] to [35], [38] and [39] (Gleeson CJ, McHugh, Gummow, Kirby, Hayne and Heydon JJ) and Barton at 491 (McTiernan and Menzies JJ), at 501 (Mason J) and at 508 (Jacobs J); cf Barton at 488 (Barwick CJ). 20 Consistent with that principle, s 40 of the Extradition Act is not expressed as a source of power. It properly assumes that the power to make a request to a foreign state is vested in the executive: see Truong v R [2004] HCA 10 ; (2004) 223 CLR 122 at [80] ; Oates at [29] and [39]; Barton at 484 (Barwick CJ), 490 491 (McTiernan and Menzies JJ), 498 499 (Mason J), 505 508 (Jacobs J); see also Replacement Explanatory Memorandum, Extradition Bill 1987 (Cth) at 41.


case_text: After ss 19 and 19A of the AI Act were amended, the decision of Spender J went on appeal and was overturned: Attorney-General v Foster [1999] FCA 81 ; (1999) 84 FCR 582. The Full Court dealt with s 19 of the AI Act before it was amended and held that: (1) s 19 of the AI Act was not merely one in aid of interpretation of legislation but had a substantive effect: at [36]; (2) efficient government administration requires that in many circumstances a Minister act through another, and not personally discharge all powers and functions bestowed on the office by statutes: at [37] citing Staughton LJ in R v Secretary of State for the Home Department, ex parte Doody [1993] QB 157 at 194 (adopted on appeal in the House of Lords: ([1994] 1 AC 531 at 566) and O'Reilly v Commissioners of the State Bank of Victoria [1982] HCA 74 ; (1983) 153 CLR 1 at 11; (3) the appointment of two Ministers to administer the Department of State of the Attorney-General, and the Administrative Arrangements Order that the Extradition Act be administered by " a Minister of State administering " that Department, is itself a sufficient indication that the Executive Council contemplated that the exercise of powers vested in the Attorney-General by the Act would devolve to the Minister for Justice: at [40]; (4) ss 22(2) and 23 of the Extradition Act do not indicate a contrary intention which excludes the operation of s 19 of the AI Act in respect of the exercise of power vested in the Attorney-General: at [42]; (5) in determining whether a statute requires the power to be exercised personally by the person designated depends on the nature of the power and all the other circumstances of the case: at [42] citing Re Reference under Ombudsman Act 1976 (1979) 2 ALD 86 at 93 and O'Reilly at 11.


case_text: The Executive Government is established by Ch 2 of the Constitution . By virtue of s 61 of the Constitution , the executive power of the Commonwealth extends to the " execution and maintenance of [the] Constitution , and of the laws of the Commonwealth. " As Latham CJ said in R v Burgess; ex parte Henry [1936] HCA 52 ; (1936) 55 CLR 608 at 643 644 cited by Mason J in Barton v Commonwealth [1974] HCA 20 ; (1974) 131 CLR 477 at 498: "The execution and maintenance of the Constitution , particularly when considered in relation to other countries, involves ... the establishment of relations at any time with other countries, including the acquisition of rights and obligations upon the international plane."


case_title: R v Secretary of State for the Home Department, ex parte Doody [1993] QB 157


case_title: R v Secretary of State for the Home Department, ex parte Doody [1993] UKHL 8 ; [1994] 1 AC 531


case_text: French J made the following observations on the application of non-adjudication to extradition cases in Cabal v United Mexican States (No. 3) (2000) 186 ALR 188 at [104]: "[I]t is important to bear in mind that the general functioning of the judicial system of an extradition country is not a matter for this court. Such judgments, no doubt, have a part to play in the decision of the executive government in entering into the treaty. They may also, at least in theory, have a bearing upon the legislative decision whether or not to disallow particular treaty regulations and in the ultimate decision of an Attorney-General whether or not to surrender a requested person. The acceptability to Australia of the system of criminal justice in an extradition country is an issue "...to be determined by the Government of the Commonwealth when deciding to extend the application of the Extradition Act to the State in question, whether by treaty or regulation, and, in a given case, perhaps before ordering the surrender of the fugitive ... in exercise of the discretion ... given the Attorney-General": Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 514; 86 ALR 464 per Gummow J. That is not to say that governments and judicial systems of requesting countries may not have changed significantly since a treaty of extradition was entered into. But the continuance of the treaty and ultimate surrender decisions are still matters for the executive and not for the courts. " (Emphasis added.) See also Todhunter v Attorney-General (Cth) (1994) 52 FCR 228 at 250 251; Sun Lau v Australia [1999] BCJ No 2971 at [73] [77] citing United States of America v McVey (1992) 77 C.C.C. (3d) 1 (S.C.C.) at 40 and Schmidt v the Queen (1987) 33 C.C.C. (3d) 193 (S.C.C.); McCrea v Minister for Customs and Justice (2004) 212 ALR 297 at [33] [36] citing R v Secretary of State for the Home Department; ex parte Johnson [1998] 4 All ER 635 at 644, Royal Government of Greece v Governor of Brixton Prison [1971] AC 250 at 280 and Republic of Argentina v Mellino [1987] 1 SCR 536 at 554; R v Secretary of State for the Home Department; ex parte Hill [1999] QB 886 at 905.


case_title: R v Secretary of State for the Home Department; ex parte Johnson [1998] 4 All ER 635


case_text: Consistent with that view, the Applicant does not dispute that the High Court in Re Patterson; ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391 established, in the context of s 501 of the Migration Act 1958 (Cth) ("the Migration Act ") read with s 19A of the AI Act , that the combined use of the words "only" with the word "personally" in referring to one minister did not prevent one of two ministers administering the Act exercising the power in question. However, the Applicant sought to distinguish Re Patterson on the grounds that it was concerned with the Migration Act , not the Extradition Act , and s 40 of the Extradition Act was in wholly different terms to s 501 of the Migration Act . 16 The Applicant's construction of s 40 of the Extradition Act should be rejected. First, it proceeds from a misunderstanding about the source of power to request extradition of a fugitive from a foreign State to Australia. Secondly, it ignores the relevant executive and administrative arrangements made by the Governor-General pursuant to ss 61 , 64 and 65 of the Constitution . Thirdly, it is contrary to the express words and history of s 19A of the AI Act , is contrary to authority and, if adopted, would not facilitate " efficient and effective government administration ": see Re Patterson at [15]. 46 Finally, the Applicant's contentions are contrary to the decision of the High Court in Re Patterson; ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391. In that case, the combined use of the words "only" with the word "personally" in referring to one Minister in s 501 of the Migration Act , read with s 19A of the AI Act , did not prevent the other of the two Ministers administering the Act exercising the power in question. Although that case was concerned with the Migration Act , not the Extradition Act , and s 40 of the Extradition Act was in wholly different terms to s 501 of the Migration Act , having regard to the nature and express words of each provision, a generally similar analysis should be made leading to the same result. 47 As noted earlier, after the decision of Spender J in Foster , s 19 of the AI Act was also amended. The Respondents contend that s 19 of the AI Act is an alternative to s 40 of the Extradition Act which provides an independent and separate justification for the Justice Minister to sign the Request because the administrative arrangements are sufficient to constitute an authorisation of the Justice Minister to act for the Attorney-General. 48 Given the conclusions I have reached about s 19A of the AI Act , it is unnecessary to resolve the application of s 19 of the AI Act . Sections 19 and 19A of the AI Act overlap. Where and how they overlap is neither necessary nor appropriate to resolve in this case. It is sufficient to note that, consistent with the decision of the Full Court in Foster , if for the purposes of s 19 of the AI Act (in its pre-amended form) the Attorney-General can write out an authorisation for another Minister authorising that Minister to exercise the power under ss 22(2) and 23 of the Extradition Act , there can be no doubt that the Governor-General, in this case on the advice of the Prime Minister, can provide such an authorisation exercising his power under s 64 of the Constitution . 49 This ground of review should be dismissed. 50 The Applicant's contention in relation to this ground is not supported by the facts and is contrary to fundamental principles of public international law.


case_title: Re Reference under Ombudsman Act 1976 (1979) 2 ALD 86


case_title: Republic of Argentina v Mellino [1987] 1 SCR 536


case_title: Royal Government of Greece v Governor of Brixton Prison [1971] AC 250


case_title: Schmidt v the Queen (1987) 33 C.C.C. (3d) 193 (S.C.C.)


case_title: Sun Lau v Australia [1999] BCJ No 2971


case_title: Todhunter v Attorney-General (Cth) (1994) 52 FCR 228


case_text: Consistent with that principle, s 40 of the Extradition Act is not expressed as a source of power. It properly assumes that the power to make a request to a foreign state is vested in the executive: see Truong v R [2004] HCA 10 ; (2004) 223 CLR 122 at [80] ; Oates at [29] and [39]; Barton at 484 (Barwick CJ), 490 491 (McTiernan and Menzies JJ), 498 499 (Mason J), 505 508 (Jacobs J); see also Replacement Explanatory Memorandum, Extradition Bill 1987 (Cth) at 41.


case_title: United States of America v McVey (1992) 77 C.C.C. (3d) 1 (S.C.C.)


case_title: Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538


case_text: Secondly, the executive and administrative arrangements expressly provide that the Justice Minister is one of two Ministers to administer the Extradition Act (including s 40), being arrangements necessary in the interests of efficient government administration: Attorney-General v Foster [1999] FCA 81 ; (1999) 84 FCR 582 at [37] and [42] and Zoeller v Attorney-General for the Commonwealth & Ors (1987) 16 FCR 153 at 165.


case_text: respondent referred me to five decisions in this Court which it contended supported the narrow interpretation of the expression in connection with which found favour with Dowsett J in Worchild [2005] FCA 1792. The five cases in question were: Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; (2001) 114 FCR 472 at [63] and [66] (pp 486-487); Australian Competition and Consumer Commission v Davis [2003] FCA 1227 at [21] and [22]; Australian Competition and Consumer Commission v Esanda Finance Corporation Ltd [2003] FCA 1225 ; Australian Competition and Consumer Commission v Capalaba Pty Ltd [2004] ATPR 41-976; and Australian Competition and Consumer Commission v McCaskey [2000] FCA 1037 ; (2000) 104 FCR 8. Those five decisions tend to support the proposition that the connection between the conduct complained of and a supply or possible supply of goods or services to a consumer must be direct and obvious. However, the point was not specifically addressed in any of them and was not the subject of detailed consideration in any of them.


case_title: Australian Competition and Consumer Commission v Davis [2003] FCA 1227


case_title: Australian Competition and Consumer Commission v Esanda Finance Corporation Ltd [2003] FCA 1225


case_title: Australian Competition and Consumer Commission v Lux Pty Ltd [2004] FCA 926


case_outcome: applied

case_text: respondent referred me to five decisions in this Court which it contended supported the narrow interpretation of the expression in connection with which found favour with Dowsett J in Worchild [2005] FCA 1792. The five cases in question were: Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; (2001) 114 FCR 472 at [63] and [66] (pp 486-487); Australian Competition and Consumer Commission v Davis [2003] FCA 1227 at [21] and [22]; Australian Competition and Consumer Commission v Esanda Finance Corporation Ltd [2003] FCA 1225 ; Australian Competition and Consumer Commission v Capalaba Pty Ltd [2004] ATPR 41-976; and Australian Competition and Consumer Commission v McCaskey [2000] FCA 1037 ; (2000) 104 FCR 8. Those five decisions tend to support the proposition that the connection between the conduct complained of and a supply or possible supply of goods or services to a consumer must be direct and obvious. However, the point was not specifically addressed in any of them and was not the subject of detailed consideration in any of them. Rather, the focus of the argument was on the concept of " undue harassment ". Harassment also involves conduct directed at the person harassed in an immediate and direct fashion. It usually involves repetition. The assessment of whether conduct is properly characterised as harassment involves an evaluative judgment (per French J in McCaskey [2000] FCA 1037 ; 104 FCR 8 at [48] (p 27)). The word " undue " adds an extra layer of evaluation (per French J in McCaskey [2000] FCA 1037 ; 104 FCR 8 at [48] (p 27)). To be " undue ", the harassment must be disproportionate and patently unreasonable. These views as to the meaning of the core expressions in s 60 of the Act were supported by Hill J in Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; 114 FCR 472 at [60] [62] (pp 485 486).


case_text: respondent referred me to five decisions in this Court which it contended supported the narrow interpretation of the expression in connection with which found favour with Dowsett J in Worchild [2005] FCA 1792. The five cases in question were: Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; (2001) 114 FCR 472 at [63] and [66] (pp 486-487); Australian Competition and Consumer Commission v Davis [2003] FCA 1227 at [21] and [22]; Australian Competition and Consumer Commission v Esanda Finance Corporation Ltd [2003] FCA 1225 ; Australian Competition and Consumer Commission v Capalaba Pty Ltd [2004] ATPR 41-976; and Australian Competition and Consumer Commission v McCaskey [2000] FCA 1037 ; (2000) 104 FCR 8. Those five decisions tend to support the proposition that the connection between the conduct complained of and a supply or possible supply of goods or services to a consumer must be direct and obvious. However, the point was not specifically addressed in any of them and was not the subject of detailed consideration in any of them. In McCaskey [2000] FCA 1037 ; 104 FCR 8 , at [44] [53] (pp 25 29), French J (as he then was) explained s 60 of the Act. At [44] (p 25 26), his Honour said: [44] The elements of the conduct prohibited by s 60 are as follows: It is the conduct of a corporation or a person to whom the extended operation of the Act applies. 2. It is conduct: (a) in connection with the supply or possible supply of goods or services to a consumer; (b) in connection with the payment for services by a consumer. 3. It is one or more of the following: (a) use of physical force; (b) undue harassment; (c) coercion. His Honour then referred to some matters of history and then gave a detailed exposition of the section at [47] [51] (pp 26 28) with which I respectfully agree. In those paragraphs of his judgment, his Honour said: It is the second limb of the conduct defined by s 60 namely "undue harassment or coercion in connection with the payment for goods or services by a consumer" that is in issue in this case. The words of the section are to be given their ordinary meanings relevant to the context in which they appear. The term "harass" as defined in the New Shorter Oxford English Dictionary defines from the French "harasser", a pejorative derivation of the word "harer" meaning "to set a dog upon". The definitions of the word are thus: "1. Trouble by repeated attacks. Now Freq; subject to constant molesting or persecution. Lay waste, devastate. Tire out, exhaust. Overwhelm with cares and misfortunes etc -- Chiefly as harassed." The meaning of primary relevance here is the first, but it is important to have regard to context in considering its application in s 60. In this respect judicial exegesis, in other statutory settings, of concepts such as "sexual harassment" is of little assistance. Sexual harassment under the Sex Discrimination Act 1984 (Cth) does not require a demonstration of repeated unwelcome approaches: Hall v A & A Sheiban Pty Ltd [1989] FCA 72 ; (1989) 20 FCR 217 at 231; [1989] FCA 72 ; 85 ALR 503 at 514 (Lockhart J), at 240; 523 (Wilcox J), at 279; 567 (French J). And see O'Callaghan v Loder [1984] EOC 92-023 at 75,505. That proposition derived from the language of s 28(3) of the Sex Discrimination Act . Certainly it is consistent with the ordinary meaning of "harass" as involving an element of repetition to speak of a harassed state of mind arising out of one or more events: Johnson v Collier (1997) 142 FLR 409 at 412 (Anderson J). But there, "harassed" is used in the fourth of the defined meanings and relates to the state of mind of a person induced by an event or events none of them necessarily amounting to harassment. A person can feel harassed because something has gone wrong for which nobody is to blame. The word "harassment" as used in s 60 must serve two broad purposes. It describes a range of conduct, in connection with the supply of goods or services which involve, inter alia, applying repeated pressure to a consumer who is under no pre-existing obligation to acquire. It also describes conduct in relation to a consumer who is under an unfulfilled obligation to pay for goods or services. Given the range of cases that it can cover, the question whether or not there is harassment involves evaluative judgment. The word "undue" adds an extra layer of evaluation which is more relevant to the case of debt recovery than to the sale of goods or services. Repeated unwelcome approaches to a potential acquirer of goods or services could qualify as harassment and, so qualified, require very little additional evidence, if any, to attract the characterisation of "undue harassment". On the other hand a consumer who owes money to a supplier can expect repeated unwelcome approaches requesting payment of the debt if he or she does not pay. No doubt such approaches might also qualify as harassment. If legitimate demands are reasonably made, on more than one occasion, for the purpose of reminding the debtor of his or her obligation and drawing the debtor's attention to the likelihood of legal proceedings if payment is not made, then that conduct, if it be harassment, is not undue harassment. If, however, the frequency, nature or content of the approaches and communications associated with them is such that they are calculated to intimidate or demoralise, tire out or exhaust a debtor rather than convey the demand and an associated legitimate threat of proceedings, the harassment will be undue. Section 60 can also cover cases in which the conduct complained of lacks the element of repetition necessary to constitute harassment, undue or otherwise. This requires consideration of the term "undue coercion". The word "coercion" is defined in the Shorter Oxford English Dictionary thus: "1. The action of coercing; constraint, restraint, compulsion. Government by force; the employment of force to suppress political disaffection and disorder. Physical pressure; compression. Coercitive power or jurisdiction." The verb "coerce" is defined as: "1. To constrain or restrain by force, or by authority resting on force. To subject to restraint in the matter of (rare) 1780. To effect by compulsion." The collection of debts may involve coercion in the sense that the debtor is subjected to the pressure of the demand and the legitimate threat of civil process for recovery with the additional cost and damage to credit which that can involve. Such pressure may be thought of as coercion but is entirely legitimate and not "undue". Where the demand includes content which does not serve legitimate purposes of reminding the debtor of the obligation and threatening legal proceedings for recovery but is calculated otherwise to intimidate or threaten the debtor, then the coercion may be undue. So if a threat is made of criminal proceedings, or of the immediate seizure and sale of house and property, a remedy not available in the absence of retention of title or some form of security, the coercion is likely to be seen as undue. The threat of criminal proceedings itself may be an offence against State laws. Quite apart from content the manner or circumstances of a demand or communication, including the language used, the time and place at which it is made and the person to whom it is communicated, may go beyond the legitimate purposes of drawing attention to the existence of the obligation and the consequences for non-compliance. Again such a communication may amount to undue coercion. Obvious examples include the use of personally abusive or obscene language, conveying the demand to uninvolved family members, particularly children, or conveying the demand through a third party in order to embarrass the debtor when the debtor could reasonably have been the subject of a direct communication. Each case will turn on its own facts. Some useful examples of situations that may give rise to contraventions of s 60 are set out in the ACCC guidelines entitled "Debt Collection and the Trade Practices Act " published in July 1999. As pointed out of course that publication is not a statement of the law. It can only be a guide. The recovery of unpaid debts can be pursued with firmness, determination and civility. It can do all those things without resorting to bullying, bluff, misrepresentation or stand-over tactics. If it does the first and avoids the second it is unlikely to contravene the law. His Honour did not specifically address the question of what is meant by " in connection with " in s 60 of the Act. At [48] (p 27), his Honour did speak of pressure being applied to a consumer. The examples which his Honour gave were examples of pressure being applied to a consumer in that person's capacity as a consumer. But his Honour was not called upon to decide whether the expression " in connection with " should be construed widely, as is often the case, or narrowly by reference to the purpose for which s 60 was enacted. As the respondent submitted, correctly I think, there are only a handful of decisions in this Court which deal with s 60 of the Act. Most do not descend into any reasoned analysis of the section because the section appeared clearly to apply. There is no Full Court authority and no High Court authority on the meaning of the section. Rather, the focus of the argument was on the concept of " undue harassment ". Harassment also involves conduct directed at the person harassed in an immediate and direct fashion. It usually involves repetition. The assessment of whether conduct is properly characterised as harassment involves an evaluative judgment (per French J in McCaskey [2000] FCA 1037 ; 104 FCR 8 at [48] (p 27)). The word " undue " adds an extra layer of evaluation (per French J in McCaskey [2000] FCA 1037 ; 104 FCR 8 at [48] (p 27)). To be " undue ", the harassment must be disproportionate and patently unreasonable. These views as to the meaning of the core expressions in s 60 of the Act were supported by Hill J in Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; 114 FCR 472 at [60] [62] (pp 485 486). In Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572 ; (2000) 104 FCR 564 , after referring to Burgundy Royale Investments Pty Ltd 18 FCR 212 , French J (as he then was) (with whom Beaumont and Finkelstein JJ agreed) said (at [86] [88]) (pp 598 599): ... It is also the case, on authority previously discussed, that the point of law could have been determined on a motion to strike out portions of the statement of claim raising the federal causes of action against the Territory respondents. In that sense it could properly have been said that the claim was not tenable as a matter of law. No relevant distinction could be drawn between the process of determining the point of law as a case stated or on a preliminary issue and determining it on a strike out motion. Indeed Burgundy Royale was cited by the Full Court in Unilan Holdings Pty Ltd v Kerin at 481 as authority for the proposition that the striking out of a portion of a pleading relating to a claim under the Trade Practices Act did not thereby deprive the Court of jurisdiction to hear a related claim in negligent mis-statement. See also Hooper v Kirella Pty Ltd at 15. The mere fact that a claim is found not to be tenable does not of itself deprive the Court of jurisdiction in non-federal claims comprising part of the same matter. If there be no federal jurisdiction properly invoked then there can be no accrued jurisdiction Carlton & United Breweries Ltd v Castlemaine Tooheys Ltd [1986] HCA 38 ; (1986) 161 CLR 543 at 553 and see the discussion by Professor Zines, "Federal Associated and Accrued Jurisdiction", in B Opeskin and F Wheeler (eds) The Australian Federal Judicial System (2000), pp 294-295 and the apparent tension between Vietnam Veterans' Affairs Association of Australia New South Wales Branch Inc v Cohen [1996] FCA 981 ; (1996) 70 FCR 419 on the one hand and Post Office Agents Association Ltd v Australian Postal Commission (1988) 84 ALR 563 at 565 (Davies J) and Buck v Comcare (1996) 66 FCR 359 at 370 (Finn J). The Court in such a case of course does have a limited jurisdiction to determine whether its jurisdiction is properly invoked Mercator Property Consultants Pty Ltd v Christmas Island Resort Pty Ltd [1999] FCA 1572 ; (1999) 94 FCR 384 ; Khatri v Price [1999] FCA 1289 ; (1999) 95 FCR 287. In the ordinary course the contention that a claim is not tenable will not go to jurisdiction unless dependent upon a submission that the claim is outside jurisdiction. And indeed, within that class a claim may be untenable because its very nature denies its character as an element of any matter or controversy in respect of which the Court can exercise jurisdiction. So a proceeding based upon the proposition that the Commonwealth Constitution is invalid does not disclose a matter arising under the Constitution or involving its interpretation Nikolic v MGICA Ltd [1999] FCA 849. A claim may also be a sham reflecting no genuine controversy and therefore establishing no matter in respect of which the Court may exercise its jurisdiction. There has been discussion of so called "colourable" claims made under the Trade Practices Act for the improper purpose of fabricating jurisdiction. The mere fact that a claim is struck out as untenable does not mean it is colourable in that sense. The pleading of the s 52 claim in this case advanced the legitimate forensic purpose of endeavouring to establish a cause of action which would not require proof of a duty of care. Notwithstanding its precipitate initiation and chequered history, I am not satisfied that it was colourable in the sense that would deprive this Court of jurisdiction to deal with the matter including any non-federal claims that may form part of it. I agree with French J that the mere fact that a claim is struck out as untenable does not mean that it is colourable in the sense that it was made for the improper purpose of fabricating jurisdiction. The respondent accepted these propositions. It nonetheless submitted that the applicant's claim was colourable because: Factors (b), (c) and (d) seem to me to be, at best, neutral. None of them, whether looked at on its own or in combination with one or more of the others, advances the respondent's submission.


case_text: this context, the expression " interests of justice " should be given a wide interpretation. The Court is entitled to consider, in addition to issues concerning jurisdiction, remedies and enforcement: ... adjectival matters such as the availability of particular evidence, the procedures to be adopted, the desirable venue for trial and the likely hearing date. (per Wilcox J in Bourke v State Bank of New South Wales (1988) 22 FCR 378 at 394). The respondent made the following submissions in support of its application that the whole of the proceedings be transferred to the Supreme Court: (a) The proceeding is fundamentally a common law proceeding and, as such, is more appropriately dealt with in a State court. The dominant cause of action is the cause of action in defamation; (b) All aspects of the proceeding, including the parties, the conduct alleged and the damage suffered are connected with New South Wales. There are no issues of a national character, nor any issues which would require consideration of the law of a place other than New South Wales. There are no factors referable to convenience which would render a hearing in New South Wales inappropriate. After all, were the matter to remain in this Court, the hearing would take place in Sydney; and (c) In substance, the proceeding is a defamation proceeding and, as such, is more appropriately dealt with in a State court which has specialist expertise. In particular, there are important procedural advantages available should the matter be transferred to the Supreme Court, including a specialist list for defamation matters, specialist defamation case management rules and a prima facie entitlement to a trial by jury. Were the matter transferred to the Supreme Court, the respondent would have an opportunity to elect to have a trial by jury, subject always to the overall control by the Supreme Court of whether, in fact, in any particular case, some or all of the issues involved should be tried with a jury. However, there was a strong likelihood that, if the respondent wished to have a trial with a jury, the trial would be with a jury.


case_text: Cook v Pasminco Ltd [2000] FCA 677 ; (2000) 99 FCR 548 at [15] [17] (pp 550 551), Lindgren J held that, because the federal claims pleaded in the case before him were hopeless and clearly untenable, those claims were not genuine and were colourable or fabricated in order to engage the jurisdiction of this Court and for no other purpose, there being no evidence to the contrary. The expressions used by his Honour in respect of the federal claims with which he was dealing were " obviously doomed to fail ", " clearly untenable " and " quite hopeless ". In using those expressions, his Honour was seeking to convey the notions that: In Cook v Pasminco Ltd [2000] FCA 677 ; 99 FCR 548 , his Honour held, amongst other things, that toxic emissions from plants were not " supplied " by the respondents. The claim was that those emissions had been supplied by the respondents with a defect, in breach of s 75AD and s 75AG of the Act. His Honour had no difficulty in concluding that the claims were colourable. He did so because they were very obviously untenable. Not every claim which is ultimately held to have failed or which is struck out as untenable would justify the conclusion that it was colourable.


case_title: Dorotea Pty Ltd v Vancleve Pty Ltd (1987) 75 ALR 629 , (1987) ATPR 40-807

case_text: Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 , a Full Court of this Court held that the Northern Territory and a statutory authority of the Territory were not bound by the Act. Nonetheless, the Court held that there was accrued jurisdiction in this Court in respect of the common law claims brought against them. The Court said (18 FCR at 219): It is true that in answering questions 1 and 2 in the negative, we have determined preliminary points of law in the claims under the Act brought against the second and third respondents; and that, in consequence, there will be no further trial of those issues. But it does not follow that the Court ever lacked jurisdiction to deal with such claims. Nor does it follow that the Court now loses its jurisdiction to deal with the attached common law claims: see Moorgate Tobacco Co Ltd v Philip Morris Ltd [1980] HCA 32 ; (1980) 145 CLR 457 at 469, 472, 477; Elna Australia Pty Ltd v International Computers (Australia) Pty Ltd (1987) ATPR 40-795 ; 75 ALR 271 , and Dorotea Pty Ltd v Vancleve Pty Ltd (1987) ATPR 40-807 ; 75 ALR 629. In principle, the position is no different than it would have been if the claims under the Act had proceeded to trial and had been dismissed on the merits. In that situation, it could not seriously be suggested that the dismissal of the claims under the Act had the effect of depriving the Court of jurisdiction to deal with any attached non-federal claim. The position may have been different if the claims under the Act had been "colourable" in the sense that they were made for the improper purpose of "fabricating" jurisdiction: see P H Lane, Lane's Commentary on the Australian Constitution (1986), pp 367-368 and the cases there cited. There is no room for such a suggestion here. The applicants' case that the second and third respondents were bound by the Act cannot be said to be unarguable; and we think it was pursued bona fide: cf R v Cook; Ex parte Twigg [1980] HCA 36 ; (1980) 147 CLR 15 per Gibbs J at 26. Those statements were entirely in line with observations to the same effect made in Dorotea Pty Ltd v Vancleve Pty Ltd (1987) 75 ALR 629 at 632 and in Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (No 2) [1987] FCA 230 ; (1987) 16 FCR 410 at 415 416 (per Gummow J).


case_text: statements were entirely in line with observations to the same effect made in Dorotea Pty Ltd v Vancleve Pty Ltd (1987) 75 ALR 629 at 632 and in Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (No 2) [1987] FCA 230 ; (1987) 16 FCR 410 at 415 416 (per Gummow J).


case_text: submissions are correct. The interests of justice will be best served by the applicant's common law claims being tried in the court where they are usually tried. This is particularly so when, as here, the dominant claim is her claim in defamation. The circumstances of this case may be contrasted with those considered by Tamberlin J in Stalyce Holdings (Aust) Pty Ltd v Cetec Pty Ltd [2002] FCA 278 ; [2002] ATPR 41-866. In that case, the federal claims were an important part of the case, remained on foot and, in part, involved parties not concerned with the alleged defamation. This is not to say that, were the proceedings retained in this Court, the trial would not be with a jury. The real point is that the Supreme Court is best equipped in terms of its procedures and expertise to hear and determine the present proceedings when sensible regard is had to the substance of the claims made in the proceedings. For these reasons, I propose to order that the whole of the proceedings be transferred to the Supreme Court of New South Wales. Other Matters


case_text: J in Worchild v Queensland Television Ltd [2005] FCA 1792 at [6] made several observations which generally support the approach to s 60 reflected in the submissions made by the respondent to which I have referred at [28] above. In that case, his Honour held that s 60 is intended to protect consumers. His Honour also held that the conduct about which complaint is made must be in connection with the supply or possible supply of goods or services to a consumer or the payment for goods or services by a consumer. His Honour decided that the expression in connection with in s 60 requires a direct and close connection between the conduct complained of and the actual or possible supply. At [6], his Honour said: As to the claim pursuant to s 60 of the Trade Practices Act , the applicant has not pleaded that the alleged conduct was in connection with the supply or possible supply of goods or services to a consumer, or the payment for goods or services by a consumer. It is likely that his case is that such supply was the delivery of news or other services by the respondent (which owns a television station) to consumers of such services. However, that has not been pleaded. I indicated to the applicant that he might be able to amend, but he said that he thought that it was rather a matter for particulars. Even if the pleading were amended, there would be a further difficulty in that the conduct of which he complains is not in connection with the supply or possible supply of goods or services to a consumer. It is true that the expression, ' in connection with ' can have a very wide import. It is also true that the taking of film is undoubtedly a step in the process of supplying news services to consumers, if that is a correct description of what a television station does in its news broadcast. However, in my view, the expression, ' in connection with ' in s 60 should be read more narrowly as requiring a direct connection between the conduct complained of and the actual supply. In other words, conduct preparatory to supply is not sufficient. Clearly, the section is designed to protect consumers. Any broader interpretation of the section would go beyond that purpose. In Worchild [2005] FCA 1792 , the applicant alleged that a news cameraman employed by Queensland Television Ltd had unlawfully entered his flat and had surreptitiously recorded pictures and sound of the applicant. In that sense, the actions of the cameraman might be said to have been conduct preparatory to the supply of news services to the public but was not sufficiently close to such supply to engage s 60. His Honour confined the scope of the expression " in connection with " in the way that he did because the interpretation given to the section by adopting that approach most appropriately accommodated the purpose of the section viz the protection of consumers. The respondent referred me to five decisions in this Court which it contended supported the narrow interpretation of the expression in connection with which found favour with Dowsett J in Worchild [2005] FCA 1792. The five cases in question were: Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; (2001) 114 FCR 472 at [63] and [66] (pp 486-487); Australian Competition and Consumer Commission v Davis [2003] FCA 1227 at [21] and [22]; Australian Competition and Consumer Commission v Esanda Finance Corporation Ltd [2003] FCA 1225 ; Australian Competition and Consumer Commission v Capalaba Pty Ltd [2004] ATPR 41-976; and Australian Competition and Consumer Commission v McCaskey [2000] FCA 1037 ; (2000) 104 FCR 8. Those five decisions tend to support the proposition that the connection between the conduct complained of and a supply or possible supply of goods or services to a consumer must be direct and obvious. However, the point was not specifically addressed in any of them and was not the subject of detailed consideration in any of them. I should follow Dowsett J in Worchild [2005] FCA 1792 unless I am satisfied that his Honour was clearly wrong. I am not so satisfied. I will therefore approach the interpretation of s 60 upon the basis that the expression " in connection with " requires a direct connection between the conduct complained of and the actual or possible supply of goods or services to a consumer. I consider, however, that construing the expression in this way does not necessarily mean that, as a matter of law, in every case, the harassment of which complaint is made must be harassment of a consumer in that person's capacity as a consumer and can never be constituted by the harassment of another person (who may or may not also be a consumer) directed or aimed at a consumer under actual or possible arrangements of supply. The respondent submitted that the harassment of a supplier can never be conduct which is caught by s 60 of the Act. I am not convinced that this submission is correct. I do not think I have to go as far as the respondent submits in order to decide the present application. The respondent also submitted that the necessary connection between Mr Hadley's conduct and the supply or possible supply of goods or services to one or more consumers or the payment for such goods or services by one or more consumers was not pleaded and could not be pleaded. This second point depends to a large extent upon my accepting Dowsett J's relatively narrow interpretation of the expression " in connection with " in s 60. The respondent submitted that the applicant's case based upon s 60 of the Act was hopeless and was also colourable. Were I to conclude that the case was colourable, the proceedings should be dismissed with costs. The essence of Mr Hadley's on air remarks was the repeated denigration of the applicant and her husband and the repeated exhortation of their customers to boycott the Seafood Lovers business. In the pleading, the applicant also alleges that, in his on air remarks, Mr Hadley harassed and coerced GPT to terminate the lease. Further, I do not think that the flaws in the applicant's s 60 claim were or are so obvious that its untenability should weigh so heavily in the balance against the applicant as to lead me to conclude that her s 60 claim was colourable. There is a limited amount of authority on the correct interpretation of s 60 of the Act. There is only one case that expressly comes to grips with the meaning of the expression " in connection with " in s 60. The observations of Dowsett J in Worchild [2005] FCA 1792 were brief and made in the context of a strike out application. I am not necessarily in agreement with one of the respondent's principal legal submissions, namely, its submission that the harassment contemplated by s 60 must be of a consumer in that person's capacity as a consumer. The applicant was entitled to test the boundaries of s 60 for her own legitimate forensic advantage. In my view, that is what she did. The s 60 case was not colourable. I therefore reject the respondent's argument that the applicant's s 60 claims were colourable. The Appropriate Order It follows from the conclusions which I have so far reached that, notwithstanding that I have struck out the applicant's s 60 claims, I consider that the Court has jurisdiction to deal with the remaining claims made by her. They are all common law claims, the most dominant of which is her claim in defamation. They remain within the accrued jurisdiction of this Court.


case_text: Mr Kunc, who appears for the Department, then foreshadowed a notice of motion seeking summary judgment pursuant to s 25(2B)(aa) of the Federal Court of Australia Act 1976 (Cth) ('the Act') and, in the alternative, an order that the Department be removed as a party to the proceedings pursuant to s 25(2B)(a) of the Act. A single judge of the Court has power under those sections to make the orders sought (s 25 ; Zegarac v Dellios [2007] FCA 566 at [12] ; Zambini v Secretary, Department of Employment and Workplace Relations [2006] FCA 1773 at [4] ; Genovese v BGC Construction Pty Ltd [2007] FCA 923). The notice of motion for summary judgment was filed on 24 May 2007 ('the motion').


case_text: In Zambini , Mansfield J considered an application for summary dismissal in respect of an appeal from a judge of the Court who had held that there was no error of law in a decision of the Tribunal. As his Honour observed at [5], an appeal should not be summarily dismissed if there are some identified or identifiable grounds capable of supporting an argument that the appeal might succeed. In this matter, as in Zambini , there is no ground of appeal which might be arguable. Mr Druett has been unable to articulate a ground of appeal with prospects of success and none is apparent. This is so whether one applies s 31A of the Act or the test in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. The appeal should be summarily dismissed.


case_text: Mr Kunc, who appears for the Department, then foreshadowed a notice of motion seeking summary judgment pursuant to s 25(2B)(aa) of the Federal Court of Australia Act 1976 (Cth) ('the Act') and, in the alternative, an order that the Department be removed as a party to the proceedings pursuant to s 25(2B)(a) of the Act. A single judge of the Court has power under those sections to make the orders sought (s 25 ; Zegarac v Dellios [2007] FCA 566 at [12] ; Zambini v Secretary, Department of Employment and Workplace Relations [2006] FCA 1773 at [4] ; Genovese v BGC Construction Pty Ltd [2007] FCA 923). The notice of motion for summary judgment was filed on 24 May 2007 ('the motion'). 23 In Zambini , Mansfield J considered an application for summary dismissal in respect of an appeal from a judge of the Court who had held that there was no error of law in a decision of the Tribunal. As his Honour observed at [5], an appeal should not be summarily dismissed if there are some identified or identifiable grounds capable of supporting an argument that the appeal might succeed. In this matter, as in Zambini , there is no ground of appeal which might be arguable. Mr Druett has been unable to articulate a ground of appeal with prospects of success and none is apparent. This is so whether one applies s 31A of the Act or the test in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. The appeal should be summarily dismissed.


case_title: Zegarac v Dellios [2007] FCA 566


case_text: The respondent sought an order for indemnity costs. The circumstances in which the Court has exercised its discretion to order indemnity costs were considered by Sheppard J in Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 233-234. His Honour there observed that the question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis. 11 The present application was made and brought on for hearing in haste and, as it seems, without consideration, or adequate consideration, being given to s 32AA of the Federal Court Act . I am not persuaded that urgency inimicable to proper consideration of the provisions of the Federal Court Act has been demonstrated. No critical step is apparently imminent in the Federal Magistrates Court. I conclude that this is a case for indemnity costs. 12 The orders of the Court will be: 1. The application be dismissed. 2. The applicant pay all costs incurred by the respondent except insofar as they are of an unreasonable amount or were unreasonably incurred. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate: Dated: 31 July 2008 Counsel for the Applicant: Mr B Skinner and Mr V Baird Solicitor for the Applicant: Munro Lawyers Counsel for the Respondent: Mr S Golledge Solicitor for the Respondent: Rockliffs Solicitors and IP Lawyers Date of Hearing: 21 July 2008 Date of Judgment: 31 July 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1107.html


case_text: The jurisdiction vested in the Federal Court by the Parliament is necessarily a jurisdiction with respect to "matters" (see s 77(i) of the Constitution ). In the constitutional sense a "matter" includes a controversy as to some immediate right, duty or liability to be established by the determination of the Court ( Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited [2000] HCA 11 ; (2000) 200 CLR 591 per Gaudron J at [43]). 5 The justiciable controversy between the parties to which Mr Carantinos's application to this Court relates concerns the respondent's entitlement to obtain a sequestration order in respect of Mr Carantinos's estate. In particular, Mr Carantinos contends, and the respondent disputes, that by reason of the conduct of the respondent, certain dealings between the parties and unfinished litigation in the Court of Appeal of New South Wales, the respondent should be restrained from seeking a sequestration order against Mr Carantinos's estate. This is made plain by the fact that Mr Carantinos's claim for relief in this Court is advanced, as his written submissions reveal, on the following bases: (i) The applicant sought an undertaking that the respondent would not enforce a judgment entered in the Supreme Court of New South Wales by enforcement proceedings including bankruptcy proceedings. The respondent agreed to provide an undertaking on condition that the applicant verified accounts of dealings between the parties. The applicant did so without complaint by the respondent. Notwithstanding the agreement, the respondent purported to serve a bankruptcy notice and present a creditor's petition. (ii) The judgment debt forms part of the dealings between the parties, which is the subject of the taking of accounts, and an appeal to the Court of Appeal. The decision of the Court of Appeal is presently reserved. (iii) The respondent chose to serve a bankruptcy notice at an address known to be a business address of the applicant without recourse to his home address or the address of his then and present legal advisors. 6 It is not in dispute that the Federal Magistrates Court has jurisdiction in respect of the justiciable controversy between the parties concerning the respondent's entitlement to obtain a sequestration order in respect of Mr Carantinos's estate. Indeed, the Federal Court and the Federal Magistrates Court have concurrent jurisdiction in bankruptcy (s 27 of the Bankruptcy Act ).


case_outcome: discussed

case_text: As Bennett J noted, in Capital Networks Pty Ltd v .au Domain Administration Ltd [2004] FCA 808 at [97] , Clause 4(1)(b) has a number of components. They are: "(a) A person (referred to as a franchisor) grants to another person (referred to as a franchisee) the right to carry on the business of offering, supplying or distributing goods or services in Australia; (b) The right to carry on business is granted under a system or marketing plan; (c) The system or marketing plan must be determined, controlled or suggested by the franchisor." 28 The ACCC contends that, Kyloe and Impact, as franchisors, were empowered to do and did the various things which were necessary to bring them within the terms of Clause 4(1)(b). It does not submit that Kyloe or Impact were associates for the purposes of this provision. 29 In the case of Kyloe, the ACCC relies on the following matters to support the allegation that it granted each Sub-Distributor the right to carry on the business of offering, supplying and/or distributing Polar Krush products and machines in Australia: • The entry into the agreement, in October 2003, between Kyloe and Impact and their respective servants and agents under which Kyloe granted Impact the exclusive right to buy the Polar Krush machines for resale. • The entry by Kyloe and NICC into the Sub-Distribution Agreements in 2004. • The terms of each Sub-Distribution Agreement which are set out above at [13]. • An alleged implied term in each Sub-Distribution Agreement that the Sub-Distributor had the right to offer, supply, place or distribute the Polar Krush machines in Australia subject to the terms and conditions of the Sub-Distribution Agreement. • An alleged implied term in each Sub-Distribution Agreement to the effect that Kyloe could charge the Sub-Distributor a fee for the training referred to in Clause 7.1.3. • The obligation allegedly imposed by each of the sub-distribution agreements and Customer Agreements that each Sub-Distributor and customer would use Kyloe's marketing and promotional material. • The entry by Impact and each Sub-Distributor into the Machine Agreements in 2004. • The terms of each machine agreement set out above at [16]. • An alleged implied term in each of the Machine Agreements pursuant to which each Sub-Distributor had the right to buy the Polar Krush machines from Impact for offer, supply and/or distribution in Australia for use with the Polar Krush products covered by the Sub-Distribution Agreement. • Various terms of each Sub-Distributor Agreement and related Machine Agreement which, when read together, provided for the granting of rights by Kyloe to the Sub-Distributors in respect of the Polar Krush machines and Polar Krush products. 40 The phrase a "system or marketing plan" is not defined in the Code. In seeking to give meaning to this concept Australian courts have had resort to American case law which deals with equivalent but not identical legislation. In the course of a review of American texts and decisions which she undertook in Capital Networks at [103] to [110] Bennett J identified the following factors as being "helpful indicators" of the presence of such a plan: • the provision by the franchisor of a detailed compensation and bonus structure for distributors selling its products; • a centralised bookkeeping and record keeping computer operation provided by the franchisor for distributors; • a scheme prescribed by the franchisor under which a person could become a distributor, direct distributor, district director, regional director, or zone director; • the reservation by the alleged franchisor of the right to screen and approve all promotional materials used by distributors; • a prohibition on re-packaging of products by distributors; • the provision of assistance by the alleged franchisor to its distributors in conducting "opportunity meetings"; • suggestion by the franchisor of the retail prices to be charged for products; and • a comprehensive advertising and promotional program by the alleged franchisor. Her Honour also had regard to some further indicators which were treated as relevant by the Court of Appeals of Indiana in Master Abrasives Corporation v Williams (1984) 469 NE 2d 1196: • the division of a state into marketing areas; • the establishment of sales quotas; • the franchisor having approval rights of any sales personnel whom the franchisee might seek to employ; • a mandatory sales training regime; • the provision of quotation sheets to the franchisee's employees; • provision by the franchisor of prescribed invoices and other sales forms; • a requirement that franchisees elicit certain information from their customers and provide that information to the franchisor; and • a restriction on the franchisee selling any of the franchisor's products without first consulting the franchisor. This is not intended to be an exhaustive list of relevant considerations but it does serve to focus attention on the type of matters which will inform a judgment on whether the necessary "system or marketing plan" exists in a particular case. 54 The respondents submit that the evidence on which the ACCC relies falls well short of establishing the existence of a system or marketing plan. They rely on the absence, in the commercial arrangements between Kyloe and Impact and the Sub-Distributors of most of the features identified by Bennett J in Capital Networks . They emphasised: • The absence of any exclusive or divided territory within which Sub-Distributors might operate. • The fact that neither Kyloe nor Impact had any right to inspect the financial records of the Sub-Distributors, to conduct audits or to inspect premises at which machines had been installed. • The fact that the Sub-Distributors were under no obligation to produce a business plan. • That, subject to minor restrictions imposed by the Sub-Distribution Agreements in relation to the use of advertising materials and the need for Sub-Distributors to receive instruction about the operation of the machines, the Sub-Distributors were free to run their businesses as they pleased. • The two continuous positive obligations imposed on Sub-Distributors by the Sub-Distribution Agreements, namely the requirements to submit written reports and order minimum quantities of product, were requirements that could not be and were not enforced. 55 I accept most of the respondents' submissions on this point. Although both Kyloe and Impact, through their separate contractual arrangements with the Sub-Distributors, required the Sub-Distributors to undertake a limited number of relatively minor tasks and to refrain from doing certain things, they did not seek to establish a system or marketing plan under which the Polar Krush products were to be marketed by the Sub-Distributors. The Morpeths, acting on behalf of Impact, did little more than advise potential Sub-Distributors about the essential terms of the proposed contractual arrangements and to offer encouragement. If a Sub-Distributor entered into the agreements, they were provided with two to three hours of training by McCann, acting on behalf of Kyloe. The training concentrated on the operation of the machines and the handling of the Polar Krush products. There was also some general encouragement and advice and the provision of a limited quantity of advertising and other promotional material. These activities, on the part of Kyloe and Impact, even if considered cumulatively, in my opinion, fall well short of a system or marketing plan. 56 In coming to this conclusion I do not have regard to the evidence that the contractual obligations, imposed on Sub-Distributors by the Sub-Distribution Agreements, relating to the submission of written reports to Kyloe and the ordering of minimum quantities of products were not, in fact, enforced. Nor do I accept that they could not have been enforced. I put these matters aside because, under the scheme which is incorporated in the Code, a franchisor must provide a copy of the prescribed disclosure document to a prospective franchisee at least 14 days before the franchisee enters into a franchise agreement: see Clause 10(a). The disclosure document must contain a summary of the conditions of the franchise agreement: see Clause 6(1); Annexure 1, para 17. The judgment as to whether a particular proposed agreement is a franchise agreement falls to be made before it becomes operative. That judgment must be made by reference to the terms of the proposed agreement. It cannot be known at that time whether or not the franchisor will choose to enforce them if and when the agreement is entered into and becomes operative. 57 Any system or marketing plan must, in any event, be "substantially determined, controlled or suggested" by the alleged franchisor. 58 In Capital Networks , Bennett J distilled from the American cases, a number of factors which assisted in determining whether the required degree of control over the system or marketing plan was exercised by the alleged franchisor: • the extent to which the distributor's business involved the sale of the alleged franchisor's products the smaller the percentage the less likely it will be that the necessary degree of control will be found to exist; • whether or not the alleged franchisor ostensibly assumed responsibility for product outlets by causing them to be operated with the appearance of some centralised management and with uniform standards as regards the quality and price of goods sold, services rendered and other material instances of the operation; • whether or not the alleged franchisor placed the distributor under an obligation to advertise, to conduct promotions and to stock accessories; and • the extent to which the alleged franchisor controls the franchisee's business having regard to matters such as prescription of the hours and days of operation, advertising, financial support, auditing of books, inspection of premises, control over lighting, employee uniform, prices, trading stamps, hiring, sales quotas and management training. 59 What I have already said in relation to the absence of a system or marketing plan also supports the conclusion that the necessary degree of control by Kyloe and/or Impact over the conduct of the Sub-Distributors' businesses was lacking. 60 Even if an alleged franchisor does not substantially control the system or marketing plan under which the franchisee's business is to be conducted, a franchise agreement may, nevertheless, be found to exist if the system or marketing plan is substantially suggested by the alleged franchisor. I have already held that no relevant system or marketing plan existed. Were it necessary to do so I would also hold that, in so far as the Morpeths and McCann, in their dealing with the Sub-Distributors, touched on matters which might relate to a system or marketing plan, they did not suggest that a particular system or plan should be adopted. The Sub-Distributors were left to determine their own business plans; the Morpeths and McCann did no more than make what they no doubt considered to be some helpful suggestions on a few aspects of what might be incorporated in such a plan.


case_text: The phrase a "system or marketing plan" is not defined in the Code. In seeking to give meaning to this concept Australian courts have had resort to American case law which deals with equivalent but not identical legislation. In the course of a review of American texts and decisions which she undertook in Capital Networks at [103] to [110] Bennett J identified the following factors as being "helpful indicators" of the presence of such a plan: • the provision by the franchisor of a detailed compensation and bonus structure for distributors selling its products; • a centralised bookkeeping and record keeping computer operation provided by the franchisor for distributors; • a scheme prescribed by the franchisor under which a person could become a distributor, direct distributor, district director, regional director, or zone director; • the reservation by the alleged franchisor of the right to screen and approve all promotional materials used by distributors; • a prohibition on re-packaging of products by distributors; • the provision of assistance by the alleged franchisor to its distributors in conducting "opportunity meetings"; • suggestion by the franchisor of the retail prices to be charged for products; and • a comprehensive advertising and promotional program by the alleged franchisor. Her Honour also had regard to some further indicators which were treated as relevant by the Court of Appeals of Indiana in Master Abrasives Corporation v Williams (1984) 469 NE 2d 1196: • the division of a state into marketing areas; • the establishment of sales quotas; • the franchisor having approval rights of any sales personnel whom the franchisee might seek to employ; • a mandatory sales training regime; • the provision of quotation sheets to the franchisee's employees; • provision by the franchisor of prescribed invoices and other sales forms; • a requirement that franchisees elicit certain information from their customers and provide that information to the franchisor; and • a restriction on the franchisee selling any of the franchisor's products without first consulting the franchisor. This is not intended to be an exhaustive list of relevant considerations but it does serve to focus attention on the type of matters which will inform a judgment on whether the necessary "system or marketing plan" exists in a particular case.


case_text: respondent relies, inter alia , upon comments of Branson J in Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 at [46] where her Honour said: 'It seems to me that the questions stated in the notice of appeal have been impermissibly drawn in a way calculated to cause this Court to review the decision of the Tribunal rather than to answer stated questions of law. A strict application of O 53 r 3(4) would render the questions unarguable without the leave of the Court.' Section 44(1) of the AAT Act provides: '(1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.' In the case before me, O 53, subrules 3(2) and (3) of the Federal Court Rules are also relevant. Those rules read as follows: '(2) The notice of appeal shall be signed by the applicant or his solicitor and shall state (b) the question or questions of law to be raised on the appeal ... (d) briefly, but specifically, the grounds relied upon in support of the order sought (3) The Court may on such terms and conditions as the Court thinks fit allow a notice of appeal to be amended.' A number of principles have emerged from decisions of the Federal Court where this issue has been considered. Those principles include the following: 1. It simply begs the question of law to commence an appeal point with words such as 'whether the Tribunal erred in law'. If the question properly analysed is not a question of law, no amount of the formulary like 'erred in law' or 'was open as a matter of law' can make it into a question of law (Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524). 2. Appeals to this Court under s 44 AAT Act are only on questions of law. Accordingly the relevant question of law is the subject matter of the appeal itself. The whole of the decision of the Tribunal is not open to review except to the extent that it relevant to the questions of law raised (Gummow J in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178, Saxby Bridge at [46]). 3. Order 53 r 3(2) discloses an intention that a question of law raised on an appeal from the Tribunal should be stated with precision as a pure question of law (Branson and Stone JJ in Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 at [18] ). 4. A question which is inelegantly drafted may nonetheless be a question of law if its purport is tolerably clear, having regard for example to relevant legislation, relevant authorities, the language of the Tribunal's reasons and the grounds stated in the notice of appeal ( Ergon at [51]). Indeed in my view, it is arguably in the nature of a ground of appeal, rather than a question of law which the Court is required to consider. I note similar comments in the context of the notice of appeal in Saxby Bridge at par 47 of that judgment. Accordingly, I am prepared to give leave to allow the notice of appeal to be amended in accordance with the amended notice of appeal attached to the applicant's further amended notice of motion filed in Court on 18 September 2006, subject to deletion of par 2(g) of that document. I note however, that during the hearing this morning Mr Looney suggested at one point that in the absence of par 2(g), the preliminary questions in pars 2(a), (b), (c), (d), (e), (f) would not pose sufficient questions for the Court to answer. I will now hear submissions from Counsel. THE COURT ORDERS THAT: 1. The applicant be given leave to file and serve an amended notice of appeal in the terms set out in the further amended notice of motion filed in Court on Monday 18 September 2006, subject to the deletion of par 2(g) of that document. 2. In the event that the applicant file and serve a further notice of motion by 4.00 pm on Wednesday 20 September 2006 the matter be listed for hearing on Friday 22 September 2006 at 8.00 am. 3. Upon the filing of any amended notice of appeal the appeal book be amended so as to reflect and contain the amended notice of appeal. 4. No order as to costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 20 September 2006 Counsel for the Applicant: Philip Looney Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Craig Coulsen Solicitor for the Respondent: McInnes Wilson Date of Hearing: 18 September 2006 Date of Judgment: 18 September 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1250.html