case_text: On 28 December 2007, the appellant filed a notice of appeal before this Court in which the appellant relies upon ten grounds of appeal. Leaving aside para 1 of the notice of appeal which recites that the appeal is from the whole of the judgment of Federal Magistrate Nicholls, the grounds are these: 1. The Federal Magistrates Court "failed to find error of law, jurisdictional error, or [a denial of] procedural fairness and [a right to] relief under s 39B of the Judiciary Act 1903 ". 2. Federal Magistrate Nicholls "dismissed the case without considering the legal and factual errors contained in the decision of the [Tribunal]". 3. Federal Magistrate Nicholls made "a legal, factual and jurisdictional error in not applying the principles laid down by the Full Court of the Federal Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437". 4. Federal Magistrate Nicholls failed to "take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences of the claim". 5. The Tribunal emphasised "some irrelevant question at the oral evidence [the hearing] and ignored my political background that put my life in risk. In doing so the Tribunal may be said to have ignored relevant material, relied upon irrelevant material and/or made findings which were erroneous or mistaken". 6. The appellant was denied "procedural fairness" in the same way that procedural fairness was denied in Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601. 7. Federal Magistrate Nicholls did not consider the appellant's amended application for relief. 8. The Tribunal, in reaching its decision, did not take into account "certain relevant considerations or 'integers' central to the applicant's claim" and thus failed to carry out its statutory review function. The matters the Tribunal did not consider were the "immense and intimidating pressure from family members because of [the appellant's] homosexuality" and the appellant's claim that "his family members [would] kill him if he returns to Bangladesh". 9. The Tribunal applied the wrong test by "requiring independent evidence of the fact [asserted by the appellant]" before the Tribunal would accept the claim made by the appellant and thus placed "[a] high onus of proof on the applicant and [failed] to give the applicant the benefit of the doubt"; and the Tribunal applied the wrong test by failing to "look at the claim as a whole to determine whether the claim so considered [amounted] to persecution". 13 In Randhawa , the Full Court of the Federal Court (Black CJ, Beaumont and Whitlam JJ) considered Article 1A(2) of the United Nations Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees, the term "refugee" and the meaning and application of the phrase, a person who "owing to well-founded fear of being persecuted ... is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country". The Court concluded that although the Convention definition of refugee does not refer to parts or regions of a country, that circumstance does not provide any warrant for construing the definition so that it would give refugee status to those who although having a well-founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country (see: p 440G to p 441A). In this case, the question before the Tribunal was whether it could be satisfied that the appellant held a well-founded fear of persecution for a Convention reason having regard to the appellant's identified claims of persecution derived from his contended sexual orientation. That sexual orientation was said to be demonstrated by reference to the examples of the relationships he claimed to have had with identified participants in the nominated countries. Those relationships and that sexual orientation was then said to have resulted in consequences for him within his family and to give rise to concerns as to how he would be treated by Bangladeshi authorities, particularly the police, having regard to the appellant's contentions that gay men are subjected to ill treatment by Bangladeshi police. 14 The central matter was the assessment by the Tribunal of all the evidence before it and whether it could be satisfied that the evidence was plausible, accurate and truthful. The Tribunal concluded that it was not satisfied of those matters. No question arose as to whether the appellant might be able to safely relocate elsewhere within his home country as a means of avoiding a demonstrated well-founded fear of persecution or harm. The Tribunal was simply not satisfied that the appellant held a well-founded fear of persecution for a Convention reason, as contended. 15 By ground 4, the appellant says that Federal Magistrate Nicholls failed to recognise that the Tribunal's decision was unjust and made without the Tribunal taking account of the "full gravity" of the appellant's circumstances. The reference to the decision of the Tribunal being unjust is not supported by any elaboration. If the ground is intended to be an analogue for a contention that the Tribunal was not entitled to rely upon the inconsistencies isolated in the Tribunal's reasons, the conclusions reached by the Tribunal were open to it arising out of its evaluation of the material and the weight that it elected to place upon the particular matters identified in its reasons. As to the question of the "full gravity" of the appellant's circumstances, it is plain from the detailed analysis undertaken by the Tribunal and the conclusions recorded in its reasons for decision that each of the factual claims made by the appellant were considered and weighed in the balance having regard to all the material put before it. That material included the protection visa application, the statutory declaration in support of the application, material submitted in writing by the appellant's advisers, the oral evidence and material specifically in response to the s 424A letter from the Tribunal to the appellant. If the contention really is that the Tribunal did not conclude that the appellant held a well-founded fear of persecution as claimed, the contention is a complaint about the merits. In effect, the appellant asks, why did the Tribunal not accept my claim to a well-founded fear of persecution?


case_outcome: cited

case_text: On 28 December 2007, the appellant filed a notice of appeal before this Court in which the appellant relies upon ten grounds of appeal. Leaving aside para 1 of the notice of appeal which recites that the appeal is from the whole of the judgment of Federal Magistrate Nicholls, the grounds are these: 1. The Federal Magistrates Court "failed to find error of law, jurisdictional error, or [a denial of] procedural fairness and [a right to] relief under s 39B of the Judiciary Act 1903 ". 2. Federal Magistrate Nicholls "dismissed the case without considering the legal and factual errors contained in the decision of the [Tribunal]". 3. Federal Magistrate Nicholls made "a legal, factual and jurisdictional error in not applying the principles laid down by the Full Court of the Federal Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437". 4. Federal Magistrate Nicholls failed to "take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences of the claim". 5. The Tribunal emphasised "some irrelevant question at the oral evidence [the hearing] and ignored my political background that put my life in risk. In doing so the Tribunal may be said to have ignored relevant material, relied upon irrelevant material and/or made findings which were erroneous or mistaken". 6. The appellant was denied "procedural fairness" in the same way that procedural fairness was denied in Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601. 7. Federal Magistrate Nicholls did not consider the appellant's amended application for relief. 8. The Tribunal, in reaching its decision, did not take into account "certain relevant considerations or 'integers' central to the applicant's claim" and thus failed to carry out its statutory review function. The matters the Tribunal did not consider were the "immense and intimidating pressure from family members because of [the appellant's] homosexuality" and the appellant's claim that "his family members [would] kill him if he returns to Bangladesh". 9. The Tribunal applied the wrong test by "requiring independent evidence of the fact [asserted by the appellant]" before the Tribunal would accept the claim made by the appellant and thus placed "[a] high onus of proof on the applicant and [failed] to give the applicant the benefit of the doubt"; and the Tribunal applied the wrong test by failing to "look at the claim as a whole to determine whether the claim so considered [amounted] to persecution". 17 In Muin v Refugee Review Tribunal , the High Court (Gleeson CJ, Gaudron, McHugh and Kirby JJ; Hayne J dissenting) concluded that the appellant, an Indonesian national of Chinese ethnicity had been denied procedural fairness in relation to a submission sent by the Secretary of the Department of Immigration and Multicultural Affairs to the Tribunal. The appellant applicant for a protection visa ought to have been provided with an opportunity by the Tribunal to deal with and respond to matters contained in the submission. In this case, there is no reference by the appellant to any document or other material relied upon by the Tribunal which was not brought to the appellant's attention. Accordingly, the reference to Muin in ground 6 and the contention that by reference to the principles in Muin the appellant "strongly believe(s) that there is a lack of procedural fairness in my case", seems entirely misplaced. 18 By ground 7, the appellant contends that Federal Magistrate Nicholls did not consider the appellant's amended application. It is plain from the reading of the reasons published by Federal Magistrate Nicholls that each element of the appellant's amended application before the Federal Magistrates Court Australia was fully taken into account. 19 By ground 8, the appellant contends that the Tribunal did not consider the "integers" central to the appellant's claim thus failing to discharge the review function. The two essential integers identified are the "intimidating pressure" from the appellant's family members due to the appellant's homosexuality and the contention that the appellant's family members would kill him if he returned to Bangladesh. It is clear from the reasons of the Tribunal that the contention of pressure brought to bear by family members and the notion that family members might harm the appellant by reason of the appellant's sexual orientation were expressly addressed. There is little point in quoting the specific paragraphs of the Tribunal's reasons as to these matters. However, the question of the hostility of the appellant's family, the contention that they had lodged false cases against him and that family members had encouraged the appellant's friends in Singapore to "beat him up" is expressly dealt with at AB529 and AB530 beginning with the reciting of aspects of these claims at the second paragraph under the heading Threats of harm (being the fourth paragraph on AB529).


case_text: The claim for interlocutory relief may involve consideration of both the legal and factual merits of the final relief sought. In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 ; (2001) 208 CLR 199, Gummow and Hayne JJ (Gaudron J concurring) pointed to the necessity to identify the legal or equitable rights which are to be determined at trial and in respect of which final relief is sought which may or may not be injunctive in nature. Gleeson CJ said (at 219): The extent to which it is necessary, or appropriate, to examine the legal merits of a plaintiff's claim for final relief, in determining whether to grant an interlocutory injunction, will depend upon the circumstances of the case. There is no inflexible rule. It may depend upon the nature of the dispute. For example, if there is little room for argument about the legal basis of a plaintiff's case, and the dispute is about the facts, a court may be persuaded easily, at an interlocutory stage, that there is sufficient evidence to show, prima facie, an entitlement to final relief. The court may then move on to discretionary considerations, including the balance of convenience. 85 Chimaera invoked three propositions in support of its claim for interlocutory relief. The first was that the directors were acting beyond power in making the rights issue because they were caretaker directors pending the outcome of the EGM requisitioned by the aggrieved shareholders. The second was that they were in breach of their duty under s 181 of the Act in making the rights issue for an improper purpose. The third was that they were acting contrary to the interests of the shareholders as a whole or in a way that was oppressive or unfairly prejudicial to Chimaera and other shareholders. 86 Company directors properly appointed have the powers conferred on them by the constitution of the company and by the Act. In the exercise of those powers they are subject to constraints and obligations deriving from the constitution and the Act and from the common law. The term "caretaker" is a metaphorical adjective. It should not be allowed to obscure legal analysis of powers and duties, the proper application of which will vary according to the circumstances.


case_text: There was no dispute between the parties that the basis upon which interlocutory injunctive relief is granted requires the applicant for relief to demonstrate a serious question to be tried and that the balance of convenience favours the grant: Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148. The two considerations are interdependent. As was said in Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 (at 472): ... the two legs of the test need not be considered in isolation from each other. Thus an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises "a serious question to be tried") may still attract interlocutory relief if there is a marked balance of convenience in favour of it.


case_title: Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148


case_title: Chief Commissioner of State Duties (NSW) v Buckle [1998] HCA 4 ; (1998) 192 CLR 226

case_text: If there is a caretaker doctrine it has not been defined. The use of an adjectival metaphor does not define a doctrine and can best be regarded as a shorthand reference to the kinds of duties that may constrain the exercise of directors' powers in particular situations including circumstances in which an extraordinary general meeting for the removal of directors has been requisitioned. In my opinion, however, it should be treated with great caution. Such usages which are taxonomical or descriptive, rather than conveying principle or doctrine, have arisen in other areas of the law: see eg the discussion of the term "discretionary trust" in Chief Commissioner of Stamp Duties (NSW) v Buckle [1998] HCA 4 ; (1998) 192 CLR 226 at [8] . 92 In Austin RP, Ford HAJ and Ramsay IM, Company Directors Principles of Law and Corporate Governance (LexisNexis, Butterworths, Australia, 2005) at 2.55, the learned authors observed that if there is a principle of caretaker directors it may be thought essential to confine its operation to situations where there is a high degree of certainty that the directors would be removed at the general meeting of the company. Otherwise any such principle could be used by disaffected minority shareholders to disrupt the management of companies. 93 I would not be prepared to rest upon the very uncertain proposition of a "doctrine" of caretaker directors, a conclusion that there is a seriously arguable question, simply because of the requisitioned EGM, the directors lacked power to embark upon the rights issue. I do not regard such an absolute proposition as being of sufficient strength to warrant the grant of injunctive relief. I regard the existence of such a "doctrine" as highly questionable. What I do not regard as questionable is that, in the circumstances in which an EGM has been requisitioned and with a reasonable prospect that the directors may be removed, a rights issue to protect their position would be made for an improper purpose and would, subject to balance of convenience considerations, attract injunctive relief. In so saying I accept that my views both of the law and of the facts are provisional at this interlocutory stage.


case_text: The position of directors issuing shares where their own board positions may be at stake was considered by the Privy Council in Howard Smith Ltd v Ampol Petroleum Ltd [1974] AC 821. The Privy Council held that it was unconstitutional for directors to use fiduciary powers over shares in the company for the purpose of destroying an existing majority or creating a new majority. In that case the directors' primary object had been to alter the majority shareholding. They had improperly exercised their powers and the allotment was invalid. Their Lordships said (at 837): Just as it is established that directors, within their management powers, may take decisions against the wishes of the majority of shareholders, and indeed that the majority of shareholders cannot control them in the exercise of these powers while they remain in office ... so it must be unconstitutional for directors to use their fiduciary powers over the shares in the company purely for the purpose of destroying an existing majority, or creating a new majority which did not previously exist. To do so is to interfere with that element of the company's constitution which is separate from and set against their powers. Their Lordships also looked to the approach to assessing purpose and said (at 835): In their Lordships' opinion it is necessary to start with a consideration of the power whose exercise is in question, in this case a power to issue shares. Having ascertained, on a fair view, the nature of this power, and having defined as can best be done in the light of modern conditions the, or some, limits within which it may be exercised, it is then necessary for the court, if a particular exercise of it is challenged, to examine the substantial purpose for which it was exercised, and to reach a conclusion whether that purpose was proper or not. In doing so it will necessarily give credit to the bona fide opinion of the directors, if such is found to exist, and will respect their judgment as to matters of management; having done this, the ultimate conclusion has to be as to the side of a fairly broad line on which the case falls.


case_text: The directors have power to effect rights issues. That was not in dispute. The exercise of that power is constrained by their statutory and fiduciary obligations. It must be exercised in good faith in the best interests of the corporation and for a proper purpose: Directors of a company are fiduciary agents, and a power conferred upon them cannot be exercised in order to obtain some private advantage or for any purpose foreign to the power. Mills v Mills [1938] HCA 4 ; (1938) 60 CLR 150 at 185 (Dixon J) In that case the directors passed a resolution increasing the voting power of one of them but in the belief that it was in the best interests of the company. The fact that one of them derived a benefit from the resolution did not invalidate it if passed in good faith. If the purpose of the resolution had been simply to alter voting powers, then it would have been invalid.


case_text: In Paringa Mining and Exploration Co Plc v North Flinders Mines Ltd (1988) 14 ACLR 587, Paringa held 49.59% of the issued capital of North Flinders. It requested certain directors of North Flinders resign and be replaced by Paringa's nominees to give it control of the board. The board decided instead to make a takeover offer for Paringa and for another company financing the offers by a rights issue. Paringa requisitioned an extraordinary general meeting of North Flinders with a view to the replacement of certain members of the board. The meeting was scheduled for the last day permitted by the Code. Paringa instituted proceedings challenging the takeover offer and rights issue decisions on the basis they had been made for improper purposes. It obtained interlocutory injunctions restraining the offers and the issue pending the outcome of the proceeding. The trial judge also ordered that the extraordinary general meeting be adjourned to 57 days after discharge of the injunctions and that no other business be transacted at the meeting. The appeal was against that latter order. The question whether interlocutory injunctive relief was rightly granted in respect of the rights issues and the takeover offer did not fall for decision. However in the course of the judgment of King CJ, with which White and O'Loughlin JJ agreed, the Chief Justice said (at 591): The controlling shareholder, or majority shareholders, are entitled to use their voting power to exercise such control of the company as is permitted to shareholders in general meetings. That power is exercised, of course, by means of a general meeting of the shareholders. A reasonable period of time is permitted after requisition to enable the meeting to be arranged, that is to say, to put in place the mechanism whereby the shareholders can exercise their power. The directors are, of course, free to exercise their powers during that interval, but the reality is that from the time a meeting is requisitioned for the purpose of replacing them, especially where it is requisitioned by a controlling shareholder, they are caretaker directors. If they choose to make use of the interval to circumvent the known wishes of the controlling shareholder who seeks to replace them, they cannot complain, in my view, if circumstances supervene to prevent them from so doing. The observation of the Chief Justice in that case, does not appear to have been underpinned by some general proposition that when an extraordinary general meeting is requisitioned the directors of the company are deprived of their power to pursue a rights issue. It may be that in such circumstances the pursuit of a rights issue will be scrutinised closely with a view to determining whether it is made for the improper purpose of simply protecting the directors' position by creating a new majority prior to the requisitioned meeting. That does not require the adjectival metaphor "caretaker" to be attached to the directors in such a circumstance. It simply requires an analysis of their powers, duties and purposes. 90 Owen J considered the decision of the Full Court of the Supreme Court of South Australia in Woonda Nominees Pty Ltd v Chng (2000) 34 ACSR 558. After referring to the judgment of King CJ and the passage quoted above and also the decision of Giles J in Utilicorp NZ Inc v Power New Zealand Ltd (1997) 8 NZCLC 261,465, his Honour referred to the submission that he should find "... that there is no principle of caretaker directors in Australian law" (at 568). His Honour said (at 568): I simply cannot do that in the light of authority such as Paringa Mining .


case_text: Owen J considered the decision of the Full Court of the Supreme Court of South Australia in Woonda Nominees Pty Ltd v Chng (2000) 34 ACSR 558. After referring to the judgment of King CJ and the passage quoted above and also the decision of Giles J in Utilicorp NZ Inc v Power New Zealand Ltd (1997) 8 NZCLC 261,465, his Honour referred to the submission that he should find "... that there is no principle of caretaker directors in Australian law" (at 568). His Honour said (at 568): I simply cannot do that in the light of authority such as Paringa Mining .


case_title: Woonda Nominees Pty Ltd v Chng (2000) 34 ACSR 558


case_text: The Commission submits that an allegation that action was taken by an unknown servant or agent is not liable to be struck out, nor does the fact that the pleading does not specify the person who appointed the agent. The Commission cited various authorities for these propositions. In those circumstances, the Commission submits, it cannot be said that the allegations cannot amount to the conspiracy alleged and the claim should not be struck out ( Adsteam Building Industries Pty Limited v The Queensland Cement and Lime Company Limited (No 4) [1985] 1 Qd R 127 per McPherson J at 133). 37 Mr George contends that the cases relied on by the Commission are not apposite. However, he has not established that the absence of identification is sufficient to cause that part of the pleading to be struck out. 38 From subsequent submissions, it would seem that Mr George does not complain about the lack of specificity of the pleading of agency. He does, however, contend that there are insufficient material facts in relation to the allegations of the tenth to twelfth respondents carrying on business in varying parts of Australia. 45 As was pointed out by McPherson J in Adsteam (at 133) direct evidence in a case of conspiracy is rarely available to the person alleging it. Proof generally rests on inference deduced from acts done in pursuance of the apparent common purpose. His Honour observed that this may mean that evidence of the actual making of the agreement cannot be provided but what can be given are particulars of the acts relied upon to justify the inferences sought to be drawn. 46 The Commission asserts that it has pleaded sufficient specific acts on the part of Mr George. He can respond to allegations that identify conduct in which he engaged together with the tenth to twelfth respondents. The pleading now specifies a greater degree of specificity so far as Mr George's alleged conduct is concerned. The Commission contends that Mr George should be able to respond to those allegations to the extent that they relate to his actions, whether or not all of the other participants in the activity are identified.


case_text: As was said by Sackville J in Seven Network v News Ltd [2003] FCA 388 at [21] material facts, not conclusions, must be pleaded with a sufficient degree of specificity, having regard to the subject matter, to convey to the opposite party the case that party has to meet. His Honour observed that it must be apparent on the face of the document that the facts pleaded if proved would establish the cause of action relied on. An example given by Sackville J at [22] was that a mere assertion that an agreement contained a provision that had the purpose or effect of substantially lessening competition is not a proper pleading. It is not suggested by the Commission and it would not cure the pleading if Mr George could request further particulars ( Australian Wool Innovation Ltd v Newkirk (2005) ATPR 42-053 at [20]-[25]; Shelton v National Roads & Motorists Assn Ltd (2004) 51 ACSR 278 at [18]-[22]). The pleading of a conclusion without underlying material facts is liable to be struck out ( Australian Wool Innovation, Shelton ).


case_text: Mr George says that it is simply not sufficient to plead that a company is "carrying on business". He relies on what was said by Merkel J in Bray v F Hoffman La Roche Ltd [2002] FCA 243 ; (2002) 118 FCR 1 at [62] to the effect that carrying on business is a question of fact that may be affected by agency, location and control by another party. There is a difference between a subsidiary carrying on its own business or whether it is carrying on the business of the parent company. At [72] his Honour observed that, where there is an integrated global enterprise, a subsidiary which is subjected to the exercise of control or influence of the parent should be viewed as carrying on business in Australia as agent of the parent. Justice Merkel emphasised the different factors that would be relevant to a determination of whether the relevant activities are those of the agent or those of the parent. While Mr George says that each of the material facts should be pleaded, it is apparent from the discussion in Bray that the whole of the evidence must be considered in order to come to a conclusion.


case_outcome: applied

case_text: As was observed by Young J in Cadence Asset Management Pty Ltd v Concept Sports Ltd (2006) 58 ACSR 435 at [35] [37] a cause of action can be pleaded at different levels of generality depending on the nature of the case and the subject matter and most pleadings set forth the material facts at a level which involves some element of conclusion. However, broad conclusions asserted at such a high level of generality that the opposite party cannot understand the case he or she has to meet are not sufficient.


case_text: The Commission says that full and extensive argument on the effect of s 6 of the Act is necessary to determine the question. That, in turn, will be affected by findings of fact made at trial. The Commission's position is that it cannot be said that the point is manifestly bad or so fatally flawed that it should not see the light of day at the trial ( Johnson Tiles v Esso [2000] FCA 1572 ; (2000) 104 FCR 564 at [50] ) 68 As the Court said in Johnson Tiles at [50] an application to strike out which involves prolonged and serious argument should only be entertained if the Judge not only harbours doubt about the soundness of the pleading but is also satisfied that striking out will avoid the need for a trial or substantially reduce the burden of its preparation. Strike out procedures should not stultify the development of the law. The question is an important one and should be determined in the ordinary course to enable the law to be determined, if necessary on appeal, in the context where the factual issues are also determined. 69 As was observed in Johnson Tiles at [50] , it is inappropriate to decide such a question on hypothetical facts, or as a separate question, where the answer would not determine the proceedings or mean that Mr George or any other respondent would be removed as a party to the proceedings. I accept that the question has not been fully considered and answered. It is not appropriate to strike out these paragraphs as manifestly bad or fatally flawed or unarguable. 70 The nature of the case alleged against Mr George is apparent from the further amended statement of claim. Such particulars as have been and will be provided outside the pleading can be incorporated into a further amended pleading at the appropriate time. The matter is complex as is not unexpected in a case of the type as advanced by the Commission. It has already been amended following the hearing of the strike out application in response to matters raised by Mr George. Rather than engage in a further paragraph by paragraph analysis of the pleading, it may be appropriate to require the Commission to file its evidence before requiring the respondents to file their defences. I will hear from the parties as to that possible course. 71 The Commission sought to file the pleading after the hearing of the application to strike out the amended statement of claim. I will hear from the parties as to the appropriate order for costs. I certify that the preceding seventy one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 21 December 2007 Counsel for the Applicant: C A Sweeney QC, D H Godwin Solicitor for the Applicant: Australian Government Solicitor Counsel for the First Respondent: A J Meagher QC, M A Jones Solicitor for the First Respondent: Corrs Chambers Westgarth Counsel for the Sixth Respondent: R Wyld Solicitor for the Sixth Respondent: Johnson Winter & Slattery Counsel for the Thirteenth Respondent: A Leopold SC Solicitor for the Thirteenth Respondent: PriceWaterhouseCoopers Legal Date of Hearing: 25 July 2007, 27 August 2007 Date of Final Submissions: 17 September 2007 Date of Judgment: 21 December 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/2024.html


case_text: In answer to Mr George's assertion that the pleading of knowledge on the part of Mr George does not comply with the principles of Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661, the Commission relies on Giorgianni v R [1985] HCA 29 ; (1985) 156 CLR 473 and contends that the pleading of the allegations of aiding, abetting, counselling and procuring the making of the alleged agreement complies with the principles applicable to accessorial conduct in Giorgianni .


case_text: In anticipation of a claim by the Commission that the complexity of the case and the fact that the Commission cannot identify in proper fashion the precise case it hopes to make out until after discovery, Mr George maintains that it is necessary properly to plead the case ( Gold Coast City Council v Pioneer Concrete (Qld) Pty Ltd (1998) 157 ALR 135 at 154 per Drummond J). A badly pleaded case cannot, Mr George submits, be allowed to stand in the hope that the gaps and deficiencies will be remedied by subpoenas and discovery. He submits that a right to seek particulars is no answer and, in any event, the Commission has apparently provided such particulars as it can provide. He submits that if that is not the case, the Commission should provide such available particulars and, if there are none, the offending paragraphs and then the entire pleading should be struck out. The Commission has included as a particular, a reservation of a right to supplement the particulars after discovery.


case_text: In Houghton v Arms [2006] HCA 59 ; (2006) 225 CLR 553, the High Court referred to Hamilton v Whitehead [1988] HCA 65 ; (1988) 166 CLR 121 where the High Court rejected the submission that a person who subsumes his personality in a company cannot be guilty both as a principal offender in his corporate persona and as an accessory as an individual ( Houghton at [45]). Mr George relied on a number of authorities that would argue against this proposition. However, in relying on this proposition, the pleading cannot be said to be unarguable so that, to the extent that it alleges liability both as the principal and as accessory, it should be struck out.


case_text: The Commission submits that a pleading of a conclusion is not necessarily objectionable; a pleading alleging agency is not objectionable ( Kernel Holdings Pty Ltd v Rothmans of Pall Mall Ltd [1991] FCA 557 per French J at 7). It submits that the pleading represents a reasonable articulation of the case which is sought to be tried. A conclusion of agency will depend on the evidence to be adduced. 47 The Commission accepts that parts of the pleading state conclusions and are of a general nature. It submits that such pleading may still define the issues and inform the respondents of the case they have to meet. In the present case, the Commission says that a level of generality is appropriate and that a conclusion may also be a pleading of a material fact ( Kernel Holdings per French J; State of Queensland v Pioneer Concrete [2003] FCA 1454 ; (1999) ATPR 41-961 per Drummond J). It submits that this, like Pioneer , is a case in which it is unnecessary to strike out a conclusionary pleading. It is not, the Commission submits, a question whether the facts pleaded are sufficient in themselves to give rise to a cause of action but whether it would be open on the pleadings to prove the facts at the trial which would constitute a cause of action (Pancontinental Mining Pty Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405 per Beaumont J at 414). The Commission submits that it has pleaded the overt acts of the alleged conspirators and the conclusion. The Commission says that, taken together, this leads to the conclusion that there was an arrangement or understanding which contained a provision of the type impugned.


case_text: Broadly, the Commission alleges that AAA Club meetings occurred for the purpose of coordinating prices in various markets, including but not limited to Australia. At some meetings the attenders have been identified. Some of the meetings were attended by the fourteenth respondent who was a servant or agent of APP Australia. APP Australia then implemented the agreed prices. Accepting that the Commission cannot identify all of the members of the group and that the pleading alleges directions by unidentified members, the Commission relies upon Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 3 All ER 918. The Commission says that Meridian stands for the proposition that the process of determining whether a particular individual's act or knowledge is attributable to a corporation is complex and is based on all of the evidence. The Commission emphasises that this is established by the evidence, not the pleading.


case_text: The Commission contends that there is authority to support the proposition that s 6(2) does extend the application of the principal provisions of the Act to corporations while they are engaged in overseas trade and commerce ( CLM Holdings at 244; Seamen's Union of Australia v Utah Development Co [1978] HCA 46 ; (1978) 144 CLR 120 at 136 137; Meyer Heine Pty Ltd v China Navigation Co Ltd [1966] HCA 11 ; (1966) 115 CLR 10 per Menzies J at 38). It submits that, with the changing times and more experience with cartels, the High Court may adopt an "effects test" to competition law jurisdiction. The Commission's submission is that this is a novel question in an area of law that is still developing. It accepts that cases and texts relied upon by Mr George, such as Zhu contain dicta and comment in support of his position but submits that there is no binding authority on the point. The Commission concedes that the dicta in Zhu is contrary to its case on the application of s 6 of the Act. However, it points out that the point has not been fully argued and that there is authority, including what it describes as a powerful dissenting opinion in the High Court to supports its contention.


case_text: The Commission submits that it is arguable that, as in a case of criminal conspiracy, a person may be liable under s 45 of the Act for conspiring with persons unknown. Similarly, it is arguable that a person may be liable for having an understanding restricted to the conduct to be pursued by one of the parties without any element of mutual obligation so far as the other party or parties to the understanding are concerned ( Morphett Arms Hotel Pty Ltd v Trade Practices Commission (1980) 30 ALR 88; Trade Practices Commission v Email Limited (1980) 43 FCR 383). The Commission also says that a meeting of minds does not require the identity of the other party or parties to be known, as long as there is sufficient material from which it can be inferred that Mr George had a meeting of minds with another person.


case_text: The Commission accepts that parts of the pleading state conclusions and are of a general nature. It submits that such pleading may still define the issues and inform the respondents of the case they have to meet. In the present case, the Commission says that a level of generality is appropriate and that a conclusion may also be a pleading of a material fact ( Kernel Holdings per French J; State of Queensland v Pioneer Concrete [2003] FCA 1454 ; (1999) ATPR 41-961 per Drummond J). It submits that this, like Pioneer , is a case in which it is unnecessary to strike out a conclusionary pleading. It is not, the Commission submits, a question whether the facts pleaded are sufficient in themselves to give rise to a cause of action but whether it would be open on the pleadings to prove the facts at the trial which would constitute a cause of action (Pancontinental Mining Pty Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405 per Beaumont J at 414). The Commission submits that it has pleaded the overt acts of the alleged conspirators and the conclusion. The Commission says that, taken together, this leads to the conclusion that there was an arrangement or understanding which contained a provision of the type impugned.


case_text: Under the heading "contraventions", the pleading bears a sub-heading "nexus with Australia". The parties accept that the effect of paragraphs 177 and 179 in this part of the pleading is to bring conduct occurring outside Australia within the reach of the Act by the operation of s 6(2)(b) of the Act. Mr George contends that s 6(2)(b) does not give the Act extra-territorial operation. He relies upon authority such as R v Australian Industrial Court; ex parte CLM Holdings Pty Ltd [1977] HCA 6 ; (1977) 136 CLR 235 at 234 235 and Zhu v The Treasurer of New South Wales [2004] HCA 56 ; (2004) 218 CLR 530 at [96] in support of that proposition. He submits that s 6(2)(b) provides wider constitutional support for the Act but does not operate to bring conduct carried on outside Australia within the ambit of the Act. 66 The Commission contends that there is authority to support the proposition that s 6(2) does extend the application of the principal provisions of the Act to corporations while they are engaged in overseas trade and commerce ( CLM Holdings at 244; Seamen's Union of Australia v Utah Development Co [1978] HCA 46 ; (1978) 144 CLR 120 at 136 137; Meyer Heine Pty Ltd v China Navigation Co Ltd [1966] HCA 11 ; (1966) 115 CLR 10 per Menzies J at 38). It submits that, with the changing times and more experience with cartels, the High Court may adopt an "effects test" to competition law jurisdiction. The Commission's submission is that this is a novel question in an area of law that is still developing. It accepts that cases and texts relied upon by Mr George, such as Zhu contain dicta and comment in support of his position but submits that there is no binding authority on the point. The Commission concedes that the dicta in Zhu is contrary to its case on the application of s 6 of the Act. However, it points out that the point has not been fully argued and that there is authority, including what it describes as a powerful dissenting opinion in the High Court to supports its contention.


case_title: Seamen's Union of Australia v Utah Development Co [1978] HCA 46 ; (1978) 144 CLR 120


case_outcome: followed

case_title: Seven Network v News Ltd [2003] FCA 388


case_title: Shelton v National Roads & Motorists Assn Ltd (2004) 51 ACSR 278


case_text: Central to the Commission's submissions is the principle that in a modern form of pleading some generality and the pleading of conclusions are allowable. Further, the Commission submits that in claims of conspiracy sought to be proved by inference from acts done in pursuance of the apparent common purpose, it may be appropriate to defer the provision of particulars until after appropriate discovery or not require them where they are within the knowledge of the respondent ( Stanley v Layne Christenson & Co [2006] WASCA 56 per Wheeler J [50]). It may also be appropriate simply to require the Commission to put on its evidence. 49 It is relevant that this is a complex case, alleging cartel behaviour. This necessarily involves pleading conduct the effect of which is known and some of the alleged participants identified, but where information cannot be provided until after discovery and subpoenas. I do not consider that the Commission has impermissibly pleaded conclusions, although some conclusions are present in the pleading. The pleading sets out, with sufficient clarity, the case against Mr George. 50 Mr George's complaint seems to be that, by pleading what he describes as material facts, being the details of known incidences of meetings of the AAA Club as particulars, the Commission can add other meetings. The same applies to other specific paragraphs referred to by Mr George. The concern expressed was not really as to the form of the pleading, which may not be susceptible to a strike out, but as to the lack of real detail. He fears that the Commission will attempt to fill the gaps in the case by the process of rolling discovery and subpoenas. Mr George is not alleged to have been present at any of the AAA Club meetings. He is not alleged to have been present when the alleged arrangements were made and understandings arrived at. His alleged knowledge and actions in contemplation of the arrangement or understanding must, therefore, be based on inferences. Mr George complains that there are no material facts pleaded from which those inferences are invited to be drawn. He wants those facts, matters and circumstances to be included formally in the pleading and not provided as particulars, as offered by the Commission.


case_title: State of Queensland v Pioneer Concrete [2003] FCA 1454 ; (1999) ATPR 41-961


case_title: Trade Practices Commission v Email Limited (1980) 43 FCR 383


case_title: Zhu v The Treasurer of New South Wales [2004] HCA 56 ; (2004) 218 CLR 530


case_text: On 2 May 2008 Ms von Reisner, who does not have the benefit of legal representation, filed an application for an extension of time within which to appeal from certain orders made in matter NSD 1540 of 2007. Although neither respondent raised the issue, it seems to me that the orders from which Ms Reisner wished to appeal are interlocutory in character with the consequence that an appeal lies from them only with leave (s 24(1A) of the Federal Court of Australia Act 1976 (Cth); Re Luck [2003] HCA 70 ; (2003) 203 ALR 1). Neither respondent suggested that it would be prejudiced if I treated Ms von Reisner's application as an application for leave to appeal and waived the requirement for compliance with the Federal Court Rules ("FCRs") accordingly. 3 In Matter NSD 1540 of 2007 Ms von Reisner and another applicant claimed relief against the respondents in reliance on, amongst other things, certain international treaties signed by Australia, the Housing Assistance Act 1996 (Cth) ("Housing Assistance Act"), national asbestos codes of practice, the Privacy Act 1988 (Cth) and the Constitution . The principal concern of the applicants appears to be the presence of asbestos in public housing owned by the State of New South Wales. 4 On 17 June 2008 I made the following orders: 1. To the extent, if any, that is it necessary, the applicant have leave to appeal order 2 of the orders made in proceeding NSD 1540/2007 on 31 March 2008. 2. The time within which any notice of appeal from order 2 of the orders made in NSD 1540/2007 on 31 March 2008 is to be filed and served is fixed as within 21 days from the determination of this application. 3. The application is otherwise stood over to a date to be fixed to allow the respondents, or either of them, to approach the Chambers of Flick J to enquire whether his Honour may wish to re-list the matter for the purpose of giving consideration to exercising the power set out in O 35 r 7 (2) (e) of the Federal Court Rules with respect of any or all of orders 1, 2 and 4 made on 30 November 2007 and order 1 made on 31 March 2008 made in proceeding NSD 1540/2007. 4. The second respondent to apply to the Associate to Branson J to re-list the application as promptly as is practicable but in any event within 4 weeks of today's date. 5. Liberty to each party to apply on short notice. 6. Costs reserved. 5 Order 2 of the orders made in proceeding NSD 1540 of 2007 on 31 March 2008 was: The First Applicant [ie Ms von Reisner] is not to commence any proceedings in this Court without the prior leave of the Court, excluding any application to appeal or seeking leave to appeal from this decision. 6 I considered it appropriate to grant leave to appeal from the above order, which was apparently made pursuant to O 21 r 1(1)(b) of the FCRs, because the making of an order under O 21 seriously affects an individual's right of access to the Court and substantial injustice would therefore result if leave were refused supposing the order to have been wrongly made. Additionally, in my view, sufficient doubt attends the decision to make the order. That doubt, in my view, arises for the following reasons: (a) it is arguable that the respondents, who applied for an order under O 21 r 1(1)(b) in reliance on notices of motion filed in Court on the day that the order was made, are not persons authorised by O 21 r 1(2) to apply for the order; (b) the respondents' motions were heard on that day over Ms von Reisner's objection and O 19 r 2 of the FCRs was arguably not complied with in respect of the respondents' applications; and (c) the reasons for judgment of the primary judge do not record his Honour's satisfaction with respect to matters critical to the making of an order under O 21 r 1(1)(b); nor do they identify the evidence upon which his Honour relied in making the order. 7 On 18 July 2008 I made the following orders: 1. The application, except to the extent that it was previously dealt with, be dismissed. 2. There be no order as to costs. 8 The critical order for present purposes made by the primary judge (other than order 2 of the orders made on 31 March 2008) was order 1 of the orders made by his Honour on 31 March 2008. That order, as originally made and as inconsequentially varied by his Honour, dismissed proceeding NSD 1540 of 2007 against both respondents. It would be inappropriate to grant Ms von Reisner an extension of time within which to seek leave to appeal from that order, or indeed any of the earlier orders made by his Honour other than order 2 of the orders made on 31 March 2008, unless I considered it at least arguable that the claims that Ms von Reisner wished to make in the proceeding fall within the jurisdiction of the Court. 9 Ms von Reisner, by the application and statement of claim and in her written and oral submissions, has identified many possible bases for the Court's jurisdiction. 10 The first purported basis is s 78 of the Constitution which authorities the Parliament to make laws conferring rights to proceed against the Commonwealth or a State in a matter within the limits of the judicial power. Part 9 of the Judiciary Act 1903 (Cth) ("the Judiciary Act ") and in particular s 64 has been enacted in reliance on s 78. Neither s 78 nor s 64 assists Ms von Reisner in demonstrating that the proceeding properly invoked the jurisdiction of the Federal Court.


case_outcome: referred to

case_text: It is not open to the appellant, on this appeal, effectively to advance a case that was not run at trial. This is so, even if the case which it is now sought to run can be supported by reference to particulars contained in the statement of claim. He is bound by the way in which his application was prosecuted at trial: see Water Board v Moustakas [1988] HCA 12 ; (1988) 180 CLR 491 at 497. It cannot, fairly, be asserted that the Federal Magistrate fell into error by failing to deal with aspects of the appellant's pleaded case which were not presented at trial. 27 In any event, I do not consider that the appellant's claim that representations were made on occasions other than the 18 April 2002 meeting can be sustained. I have examined each of the documents relied on by the appellant (listed above at [9] and [13]) and the evidence relating to those documents. At best for the appellant, some of them may, arguably, contain statements which might be said to be consistent with the appellant's allegation that the relevant representations were made at the meeting on 18 April 2002. None of them contained evidence of any separate representations of the kind alleged being made at other times. The Federal Magistrate did not overlook this material. Most of it is referred to in his reasons at paras 18ff. He was not invited to find that any of this material evidenced the making of either of the representations at other times and he did not do so. 28 In my view the Federal Magistrate did not err. It was open to him, on the evidence and the case presented to him, to conclude, as he did, that the alleged representations had not been made by Professor Angus on 18 April 2002.


case_text: scope of an appeal under s 44(1) of the AAT Act and the requirement that the notice of appeal state a question, or questions of law, have been discussed in the authorities. The relevant principles are well established and I refer to Brown v The Repatriation Commission [1985] FCA 194 ; (1985) 7 FCR 302 ; TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 ; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 38 AAR 55 ; Hussain v Minister for Foreign Affairs & Anor [2008] FCAFC 128 ; (2008) 169 FCR 241. The difference between a question of fact and a question of law has also been discussed in the authorities. Again, although there are sometimes difficulties in applying the relevant principles, they are well established and I refer to Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1995-1996) 186 CLR 389.


case_title: Brown v The Repatriation Commission [1985] FCA 194 ; (1985) 7 FCR 302


case_text: question whether the Tribunal has complied with s 43(2B) in a particular case is, I think, a question of law: Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49 ; (2009) 253 ALR 263 at 271-273 [30] - [37] per Perram J.


case_text: writing these reasons, I note that the Full Court of this Court held in Civil Aviation Safety Authority v Central Aviation Pty Limited [2009] FCAFC 137 that a failure by the Tribunal to comply with s 43(2) of the AAT Act is an error of law. However, the Court also held that a failure to comply with s 43(2) did not inevitably lead to an order setting aside the decision. Whether the decision is set aside will depend on the facts and circumstances of the individual case and the exercise of the discretion conferred by s 44(5) of the AAT Act.


case_title: Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1995-1996) 186 CLR 389


case_title: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280


case_text: question whether a failure by the Tribunal to comply with s 43(2B) is an error of law which vitiates the Tribunal's decision is not, as far as I can see, clearly answered by the authorities: Repatriation Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422 at 445-446 per Brennan J; Comcare Australia v Lees (1997) 151 ALR 647 at 658-659 per Finkelstein J; TelePacific Pty Ltd v Federal Commissioner of Taxation (2005) 58 ATR 441 at 451 per Sackville J; Lang v Comcare (2007) 44 AAR 370. The answer to the question may turn on an examination of the effect of the particular failure on the Tribunal's decision. I do not need to determine the question in this case because I have decided that the Tribunal did not fail to comply with s 43(2B).


case_title: Hussain v Minister for Foreign Affairs & Anor [2008] FCAFC 128 ; (2008) 169 FCR 241


case_title: Lang v Comcare (2007) 44 AAR 370

case_text: question whether a failure by the Tribunal to comply with s 43(2B) is an error of law which vitiates the Tribunal's decision is not, as far as I can see, clearly answered by the authorities: Repatriation Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422 at 445-446 per Brennan J; Comcare Australia v Lees (1997) 151 ALR 647 at 658-659 per Finkelstein J; TelePacific Pty Ltd v Federal Commissioner of Taxation (2005) 58 ATR 441 at 451 per Sackville J; Lang v Comcare (2007) 44 AAR 370. The answer to the question may turn on an examination of the effect of the particular failure on the Tribunal's decision. I do not need to determine the question in this case because I have decided that the Tribunal did not fail to comply with s 43(2B). The obligation in s 43(2B) relates to the Tribunal's "findings on material questions of fact". On one view, the material question of fact on the particular issue of whether the applicant was unemployed within s 593(1) was the level or intensity of the applicant's vehicle-related activities judged by reference to the amount of time and effort he expended on those activities. The Tribunal made its decision with respect to that matter by drawing inferences from evidence it accepted. On one view, the Tribunal's conclusion that the applicant's evidence on this topic was unreliable was no more than the rejection of an item of evidence which might otherwise have assisted it in making its finding on a material question of fact. On this view, the Tribunal's conclusion on the reliability or otherwise of the applicant's evidence was not a finding on a material question of fact. Without pausing to discuss some of the issues which arise, I refer to Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741 ; (1999) 95 FCR 425 ; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323. I will not take such an approach because it seems to me that, in a case of this nature the better view is that the question of what is a finding on a material question of fact depends very much on the nature and circumstances of the decision. That was the approach taken by Stone J in Lang v Comcare (2007) 44 AAR 370. In this case, the applicant's evidence as to the time he spent on his vehicle-related activities was an important consideration in terms of a decision as to whether he was unemployed within the meaning of the term in s 593(1) of the Act. He was the only witness before the Tribunal who could and did give direct evidence on the issue.


case_text: Tribunal set out the legal principles relevant to a determination of whether the applicant was "unemployed" within the meaning of that term in s 593(1) of the Act. He referred to the decision of Graham J in Secretary, Department of Employment and Workplace Relations v Joss [2006] FCA 884 ; (2006) 152 FCR 541. One of the principles the Tribunal formulated was that the question of whether a person is unemployed is a question of fact and degree, and regard should be had to the intensity with which the person applies himself or herself to particular work or a particular enterprise. There is no doubt that the question of whether a person is unemployed is essentially one of fact and degree to be decided having regard to the relevant principles: McAuliffe v Secretary, Department of Social Security [1992] FCA 483 ; (1992) 28 ALD 609. It was not suggested on the appeal that the Tribunal had applied the wrong legal test.


case_text: obligation in s 43(2B) relates to the Tribunal's "findings on material questions of fact". On one view, the material question of fact on the particular issue of whether the applicant was unemployed within s 593(1) was the level or intensity of the applicant's vehicle-related activities judged by reference to the amount of time and effort he expended on those activities. The Tribunal made its decision with respect to that matter by drawing inferences from evidence it accepted. On one view, the Tribunal's conclusion that the applicant's evidence on this topic was unreliable was no more than the rejection of an item of evidence which might otherwise have assisted it in making its finding on a material question of fact. On this view, the Tribunal's conclusion on the reliability or otherwise of the applicant's evidence was not a finding on a material question of fact. Without pausing to discuss some of the issues which arise, I refer to Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741 ; (1999) 95 FCR 425 ; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323. I will not take such an approach because it seems to me that, in a case of this nature the better view is that the question of what is a finding on a material question of fact depends very much on the nature and circumstances of the decision. That was the approach taken by Stone J in Lang v Comcare (2007) 44 AAR 370. In this case, the applicant's evidence as to the time he spent on his vehicle-related activities was an important consideration in terms of a decision as to whether he was unemployed within the meaning of the term in s 593(1) of the Act. He was the only witness before the Tribunal who could and did give direct evidence on the issue.


case_title: Repatriation Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422


case_title: Secretary, Department of Employment and Workplace Relations v Joss [2006] FCA 884 ; (2006) 152 FCR 541


case_text: so far as there was an obligation on the Tribunal, aside from s 43(2B) of the AAT Act, to explain its reasons for rejecting evidence not directly contradicted by other evidence (see Suters v Australian Postal Corporation (1992) 28 ALD 320) , the Tribunal complied with that obligation. As part of ground one, the applicant submitted that the matters the Tribunal relied on could not justify the finding it made. First, he contended that because his dishonesty did not occur in his claim for the newstart allowance, or in the course of his evidence to the Tribunal, it should have been ignored. That contention is incorrect and his dishonesty was a matter the Tribunal was entitled to take into account. Secondly, he contended that the Tribunal erred in concluding that the total number of vehicles "emerged progressively". However, that is a challenge to a finding of fact and cannot be characterised as an error of law having regard to the fact that there was evidence upon which the Tribunal could make that finding. Ground two The second ground also relates to the findings of the Tribunal referred to in ground one. It is said by the applicant that an important part of the applicant's vehicle-related activities was the repair work carried out by the applicant himself. The first limb of the second ground is that there was no challenge to the applicant's evidence in this respect and that therefore the Tribunal's finding was made in breach of the rules of procedural fairness. The second limb of the second ground is that the Tribunal's finding that the applicant had underestimated the time he spent on vehicle-related activities was not based on any evidence.


case_title: TelePacific Pty Ltd v Federal Commissioner of Taxation (2005) 58 ATR 441


case_title: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175


case_title: Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741 ; (1999) 95 FCR 425


case_outcome: distinguished

case_text: cases relied on by Mr Gould are distinguishable. They are Barclay Mowlem v Tesrol Walsh Bay [2004] NSWSC 1232 and Commissioner of Taxation v Ryan (1998) 82 FCR 345 ( Ryan) . Neither concerned a payment of a final dividend to creditors. Mr Gould's submissions did not refer to the decision of the High Court on appeal in Ryan which, if anything, is unfavourable to his argument (see Commissioner of Taxation of the Commonwealth of Australia v Ryan [2000] HCA 4 ; (2000) 201 CLR 109). The intention to be found in the Trinbay DOCA is that in the absence of an actual payment, it would be a matter for the creditors, or for the Court upon application by a person referred to in s 445D(2), whether the DOCA was to terminate.


case_title: Commissioner of Taxation of the Commonwealth of Australia v Ryan [2000] HCA 4 ; (2000) 201 CLR 109


case_title: Commisioner of Taxation v Ryan (1998) 82 FCR 345


case_text: In Advanced Hair Studio Pty Ltd v TVN Enterprises Ltd (1987) 18 FCR 1 at 11 French J expressed the view that the reference in paragraph (a) to "a publication of matter" ' suggests that what is of importance is the content and not the general nature of the material in question '. That observation was referred to by Wilcox J in Sun Earth Homes Pty Limited v Australian Broadcasting Corporation (1993) 45 FCR 265 at 280. However, French J was not concerned with subparagraph (vi) and was not referring to the subject of an agreement between the prescribed information provider and a third person. His Honour did not expand upon the distinction between and the dividing line between what may constitute "conduct" and "general nature". 95 In Advanced Hair Studio , French J outlined the history to the insertion of s 65A. According to the Second Reading Speech, s 65A was introduced to overcome the suggestion that newspaper publishers and television publishers may be taken to have contravened s 52 if the newspaper contains inaccurate information. The section was said to operate to exempt the media and other persons who engage in businesses of providing information from the operation of the provisions of Division 1 of Part V of the Act which could inhibit activities relating to the provision of "news and other information". 96 Section 65A was not intended to exempt information providers: 'where they have what might be regarded as a commercial interest in the content of the information. In such cases, information providers must take the same responsibility for the accuracy of information as any other person who publishes information in trade or commerce. This can occur, for example, where a newspaper has agreed to publish a "news" item about a product in exchange for the product supplier taking out paid advertising in that publication.' 97 Seven does not have any commercial interest in the content of the information contained in the Episodes. A general commercial interest in publishing or promoting successful programs or programs which attract viewers is not a relevant commercial interest for the purposes of s 65A ( Advanced Hair Studio at 10-11 per French J; Horwitz at 29 per Wilcox J).


case_text: The Seven Licensees are not liable for these representations unless they were made by the Seven Licensees themselves ( Australian Ocean Line Pty Limited v West Australian Newspapers Limited (1985) 58 ALR 549 at 586 per Toohey J) or unless the Seven Licensees have adopted, endorsed or approved of the women's claims such that those claims become those of the Seven Licensees. It is not in dispute that a corporation may contravene s 52 for disseminating erroneous information supplied by a third party ( Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60 ; (2004) 218 CLR 592 at [113] per McHugh J). Relevant to determining whether a contravention of s 52 has occurred, one important factor is whether the corporation has assumed responsibility for or adopted or endorsed the information so that it would be reasonable for a recipient to rely on the confirmation. If the corporation makes it apparent that it is not the source of the information and that it expressly or impliedly disclaims any belief in its truth or falsity and is merely passing on the information for what it is worth, the corporation does not contravene s 52. Another factor is whether the corporation expressly or implicitly disclaims personal responsibility or a belief in the truth or falsity of the information ( Butcher at [115] per McHugh J). If there were such a disclaimer, the corporation does not contravene s 52. This will not, however, apply where statements of fact are made by the corporation itself. 12 It is not sufficient that the statements reported the opinions of Ms Boholt and Ms Forster which did not accord with the facts. There must be something referable to the Seven Licensees' conduct ' which is likely to lead a reader into error ' ( Australian Ocean Line at 586-7 per Toohey J). An example given by Toohey J in Australian Ocean Line at 587 was a statement suggesting that the criticisms attributed to or made by others were well-founded or a statement apparently containing the opinion of the broadcaster about the subject matter. Each such statement goes beyond the mere reporting of opinions by others and contains a representation by the broadcaster. 14 The Commission submits that the first episode goes beyond the mere reporting of the statements or opinions of Ms Boholt and Ms Forster. The episode conveys, the Commission says, an assessment by the Seven Licensees that Ms Boholt and Ms Forster are wealthy and that participants in the Mentoring Program will likewise become wealthy ( Australian Ocean Line at 587 per Toohey J). That assessment is said to be evidenced by the making of statements by the compere and by the reporter to suggest that the statements and opinions of Ms Boholt and Ms Forster are accurate or well-founded. If the statements of the compere and reporter, in the context of the Episodes as a whole, constitute a making by them of the alleged representations, those representations would be taken to have been made by the Seven Licensees when the Episodes were broadcast. 15 The Commission relies on the following statements of the compere and reporter: • ' It's a one year program to teach them the skills of making big money '. • '[Ms Boholt and Ms Forster] are self proclaimed wildly wealthy women on a mission to make other women filthy rich too '. • ' through shrewd investment in real estate the pair have become millionaires, their secrets to be revealed in a mentoring program called Wildly Wealthy Women'. • ' in 8 months [Ms Forster's] bought more than one million dollars worth of property with no money whatsoever '. • '[Ms Boholt] is an accountant turned property guru '. • '[Ms Boholt] now owns more than 60 properties all around Australia '. • ' the knowledgeable pair '. • ' The nine month program costs nearly $3,000. If that sounds a lot think again. They say they can turn anyone into a millionaire even those with no money '. • ' for your chance to learn how to be a property millionaire log onto [the Website]'. 16 It follows, the Commission submits, that the Seven Licensees adopted the first, second and third representations as their own. As to the fourth, fifth and sixth representations, the Commission asserts that the reporter made statements to that effect without attributing those statements to any other person: • '[Ms Boholt] now owns more than 60 properties all around Australia (the fourth representation). • ' In eight months [Ms Forster's] bought more than one million dollars worth of property with no money whatsoever ' (the fifth representation). • ' the pair have become millionaires ' (the sixth representation'). As a result, the Commission submits that the making of those statements goes beyond the mere reporting of Ms Boholt or Ms Forster's opinions and constitutes a representation by the Seven Licensees of the facts there asserted.


case_title: Bond v Barry [2007] FCA 1484

case_text: In Sun Earth at 282, Wilcox J described matter that would fall within paragraph (a) as matter concerning the applicants, published in connection with the supply of goods or services of the applicants. His Honour did not direct his observations to the argument raised here by Seven, that the supply of goods or services "of that kind" was limited to goods and services of the kind supplied by the prescribed information provider. It is worth noting however that intuitively Wilcox J considered goods or services "of that kind" as not so restricted. In Bond v Barry [2007] FCA 1484 , French J at [41] [42] did not read subparagraph (vi)(A) as restricted to "relevant goods or services". However, it does not seem that his Honour was directed to that possible construction.


case_text: The Seven Licensees are not liable for these representations unless they were made by the Seven Licensees themselves ( Australian Ocean Line Pty Limited v West Australian Newspapers Limited (1985) 58 ALR 549 at 586 per Toohey J) or unless the Seven Licensees have adopted, endorsed or approved of the women's claims such that those claims become those of the Seven Licensees. It is not in dispute that a corporation may contravene s 52 for disseminating erroneous information supplied by a third party ( Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60 ; (2004) 218 CLR 592 at [113] per McHugh J). Relevant to determining whether a contravention of s 52 has occurred, one important factor is whether the corporation has assumed responsibility for or adopted or endorsed the information so that it would be reasonable for a recipient to rely on the confirmation. If the corporation makes it apparent that it is not the source of the information and that it expressly or impliedly disclaims any belief in its truth or falsity and is merely passing on the information for what it is worth, the corporation does not contravene s 52. Another factor is whether the corporation expressly or implicitly disclaims personal responsibility or a belief in the truth or falsity of the information ( Butcher at [115] per McHugh J). If there were such a disclaimer, the corporation does not contravene s 52. This will not, however, apply where statements of fact are made by the corporation itself. 26 The Commission likens these statements to ' a little footnote at the bottom of the sales pitch which has no real effect on what is being enlivened in the mind of the viewer '. It says that the bookends did no more than ' dangle a carrot out for the viewers ' and that, properly construed, the bookends amount to an encouragement to viewers to watch further items on Today Tonight involving the Mentoring Program. That is said to be insufficient to "modify" the earlier conduct of the reporter ( Butcher at [152] per McHugh J). 27 The reasonable viewer does not have access to a transcript. The degree of analysis to which the Court was taken is not one which would commonly be conducted by viewers of the program. Relevant to the determination of whether the Seven Licensees made the Wildly Wealthy Women representations is the effect on the compere's disclaimer on the representations of the reporter. The question is whether the compere's comments change the overall impression of the first episode, which includes the effect of the representations made by the reporter, such that the reasonable viewer would not consider the fourth, fifth and sixth representations to have been made by the Seven Licensees. Does the compere's disclaimer leave the viewer with the impression that the Seven Licensees have dissociated themselves from the reporter's representation? 28 The Commission submits that the disclaimer and disassociation by the compere are insufficient to counteract the effect of the Wildly Wealthy Women representations by the reporter or to make it clear that the Seven Licensees were not adopting them. The disclaimer, the Commission submits, extends only to the Mentoring Program representations and does not affect or relate to the Wildly Wealthy Women representations made by the reporter. 75 Seven submits that the contract, arrangement or understanding must be one to publish the actual matter which would otherwise attract the statutory prohibition upon misleading or deceptive conduct. It points out that almost every publication or report will invariably involve at least some "arrangement or understanding" with persons which "in a general sense" is in connection with the subject matter of the publication. Seven contends that, if a bare agreement to be interviewed or an agreement to be interviewed on a given topic was to attract the exception to the exemption, s 65A would not fulfil the purpose of its inclusion as outlined in the Second Reading Speech on the introduction of s 65A into the Act ('the Second Reading Speech'). The purpose was described by the High Court in Butcher (at [114] per McHugh J) as operating to exclude media providers, such as television stations, from liability for misleading or deceptive conduct within the meaning of s 52 ' in relation to editorial stories and news '. 76 There are a number of factors that militate against Seven's submissions: • Paragraph (a) refers to "publication of matter ". It does not specify the publication of "statements" or "representations". "Matter" is a term of broad description; it may, for example, mean the substance of a discourse (Macquarie Dictionary Revised Third Edition). • The publication may be made " pursuant to " a contract, arrangement or understanding which does not necessarily denote that the matter the subject of the publication be the subject of that arrangement. It may be "according to" or "conformable with" the arrangement (Macquarie Dictionary Revised Third Edition). • The publication may be made on behalf of the third person and not pursuant to a contract, arrangement or understanding with that person. • Paragraph (a) refers to the publication of matter in connection with, relevantly, the supply of services. Subparagraph (vi) does not mirror that the publication be "of matter" or refer back to the "publication of matter" in paragraph (a). Once there is a publication of matter in connection with the services, all that is required by subparagraph (vi) is that the publication itself be made on behalf of or pursuant to an arrangement with the third person. • Paragraph (a) concerns the "matter", the subject of the publication. Subparagraph (vi) concerns the source of the publication, not the subject of the publication. Where the subject of the publication is provided for, the section specifies it: "publication of matter" in paragraph (a) and "publication of an advertisement" in paragraph (b). 77 Subparagraph (a)(vi) refers to "the publication". It is not necessary or appropriate to read into that provision the words "of matter". Subparagraph (vi) does not operate to require that the matter be the subject of the contract, arrangement or understanding between the prescribed information provider and the third person. It is sufficient for the publication to be in connection with the supply of goods or services pursuant to an arrangement with persons who supply goods or services of that kind; it does not have to extend to the actual words spoken in the broadcast. It is the publication that is made on behalf of the third person or pursuant to a contract, arrangement or understanding with that third person. This construction does not do violence to the language of the section nor is it contrary to the purpose of its inclusion into the Act. The alternative construction advanced by Seven requires reading into subparagraph (vi) words that are not there ("of matter") and ignoring the effect of words that are there ("on behalf of").


case_text: The Episodes must be considered in their entirety ( Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 199 per Gibbs CJ). That involves taking account of content and presentation and also the circumstances in which the Episodes were broadcast ( Johnson & Johnson Pacific Pty Limited v Unilever Australia Limited (No 2) (2006) 70 IPR 574 at [16]). The question for the Court is whether reasonably minded viewers would take from the Episodes the representations which are alleged ( Campomar Sociedad, Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45). There is no dispute that viewers would be unlikely to engage in a detailed analysis of textual or linguistic nuances. The question is one of the overall impression of each Episode.


case_text: The Commission accepts that the mere broadcast or publication of a statement or opinion of Ms Boholt or Ms Forster which does not involve an endorsement, approval or adoption by the Seven Licensees does not constitute conduct in contravention of s 52 of the Act merely because that statement or opinion is erroneous ( Global Sportsman PL v Mirror Newspapers Limited (1984) 2 FCR 82 at 89 90). Adoption does not necessarily occur by the mere publication or broadcast of a statement ( Global Sportsman at 90).


case_text: Seven maintains that s 65A(1)(a) deals with "self-advertisements", corresponding with provision for advertisements published on behalf of others in s 65A(1)(b). The information provider is liable for a contravention of s 52 where the publication relates to the supply of its own services, such as the promotion of future programmes ( Horwitz Grahame Books Pty Ltd v Performance Publications Pty Limited (1987) 8 IR 25). Seven submits that, if the services in subparagraph (a)(vi)(A) may be goods or services of a third person, s 65A(1)(b) would be otiose because an advertisement would meet the description of being a publication pursuant to a contract, arrangement or understanding with a person who supplies the goods or services the subject of the publication. Such an interpretation would, it is submitted, be contrary to the proper construction of statutes. Seven says that the limitation of paragraph (a) to self-advertisements would also be consistent with views expressed generally about paragraph (a): that it deals with advertisements published by the information provider for its own products, while paragraph (b) deals with advertisements published by the information provider for the products of others (see Heydon, JD Trade Practices Law Vol 2 at 12.1030). However, counsel were not able to point to any authority or commentary that specifically examined the construction of subparagraph (vi) and, in particular, (vi)(A). 97 Seven does not have any commercial interest in the content of the information contained in the Episodes. A general commercial interest in publishing or promoting successful programs or programs which attract viewers is not a relevant commercial interest for the purposes of s 65A ( Advanced Hair Studio at 10-11 per French J; Horwitz at 29 per Wilcox J).


case_text: The Commission submits that, whether or not it appears to the Court that Seven intended to engage in conduct in contravention of the Act or to broadcast the representations found to be in contravention of the Act, orders should be made as against Seven Network and the Seven Licensees on "public policy grounds". It relies on ICI v Trade Practices Commission (1992) 38 FCR 248 at 255 257 per Lockhart J. However, his Honour observed that it is relevant to consider questions of repetition of conduct and whether the conduct has occurred before or whether imminent substantial damage is likely. While Lockhart J was of the view that absence of any one or more of these elements is not fatal to the grant of an injunction under s 80 of the Act, none of those elements have been established by the Commission. No basis for the orders against Seven Network has been made out other than the asserted "public policy". No basis has been established as to why the declaratory relief sought is insufficient to protect the public, particularly in circumstances where the Seven Licensees did not make the Mentoring Program representation. 110 No basis has been established for the injunctive relief sought against the Seven Network. 111 I have found that the Seven Licensees made the Wildly Wealthy Women representations in the Episodes. I am prepared to make orders pursuant to s 80 of the Act permanently restraining the Seven Licensees from making or causing to be made in any form the Wildly Wealthy Women representations or any representations to substantially the same effect.


case_title: Johnson & Johnson Pacific Pty Limited v Unilever Australia Limited (No 2) (2006) 70 IPR 574


case_text: In Lovatt v Consolidated Magazines Pty Ltd (1988) 12 IPR 261 at 273 Wilcox J, in considering subparagraph (a)(v), expressed the view that s 65A was intended ' to exclude the application of the specified provisions of the Act to ordinary items of news and comment but to continue to subject the information provider to those provisions in connection with any items directly promoting the supply of its own goods or services or the disposal by it of interests in land '. In other words, in boosting its own business, the provider was subject to s 52. His Honour did not make reference to subparagraph (vi). 99 Section 65A(1)(a) concerns the supply of goods or services or the sale or grant of an interest in land. Accepting that the general interest of a prescribed information provider in expanding circulation, attracting the information-consuming public and providing quality and interesting information is not relevantly a commercial interest, the subject matter of paragraph (a) does, in the ordinary course, contain a commercial element. Section 65A excludes from the exemption publications where the information provider has a commercial interest in the content. However, the submission that the only exception to the exemption is where the broadcaster has a commercial interest in the content of the broadcast does not sit well with s 65A(1)(b). Section 65A(1)(b) excepts from the exemption third party advertising generally. A broadcaster may have a similar commercial interest in a third party advertisement as in a contract arrangement or understanding with a third person to publish in connection with that person's supply or promotion of the third person's goods or services. In both cases the broadcaster may have a commercial interest in the publication. In neither case does the broadcaster have a commercial interest in the content. If it were necessary to have a commercial interest under s 65A(1)(a)(vi) or s 65A(1)(b) , it would be in the publication. 100 However, in the present case, the Commission does not suggest that Seven has any commercial interest in either the publication or the content. If the Commission were required to establish that a commercial interest was necessary for the exception to apply, it has failed to do so. If that were the case, Seven would have the benefit of the exemption.


case_title: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191


case_text: There is a qualification to the rule in Vines , namely that where one has an exception (of whatever type) to an exception (of whatever type), the onus of proof lies on the person who asserts the exception to the exception (the Glendarroch [1894] P 226 at 231, applied by the High Court in Shipping Corporation of India Limited v Gamlen Chemical Co (Australasia) Proprietary Limited [1980] HCA 51 ; (1980) 147 CLR 142 at 168). Accordingly, the Commission has the burden of establishing that the exception in s 65A(1)(a) to the general exemption in s 65A(1) applies.


case_outcome: considered

case_text: In Advanced Hair Studio Pty Ltd v TVN Enterprises Ltd (1987) 18 FCR 1 at 11 French J expressed the view that the reference in paragraph (a) to "a publication of matter" ' suggests that what is of importance is the content and not the general nature of the material in question '. That observation was referred to by Wilcox J in Sun Earth Homes Pty Limited v Australian Broadcasting Corporation (1993) 45 FCR 265 at 280. However, French J was not concerned with subparagraph (vi) and was not referring to the subject of an agreement between the prescribed information provider and a third person. His Honour did not expand upon the distinction between and the dividing line between what may constitute "conduct" and "general nature". 86 In Sun Earth at 282, Wilcox J described matter that would fall within paragraph (a) as matter concerning the applicants, published in connection with the supply of goods or services of the applicants. His Honour did not direct his observations to the argument raised here by Seven, that the supply of goods or services "of that kind" was limited to goods and services of the kind supplied by the prescribed information provider. It is worth noting however that intuitively Wilcox J considered goods or services "of that kind" as not so restricted. In Bond v Barry [2007] FCA 1484 , French J at [41] [42] did not read subparagraph (vi)(A) as restricted to "relevant goods or services". However, it does not seem that his Honour was directed to that possible construction. 101 In Sun Earth at 281, Wilcox J considered the proposition that the purpose of s 65A is to protect prescribed information providers acting as such. His Honour repeated his view that the "commercial interest" in the content of the information sufficient to come within the exception to the exemption afforded by the section, is satisfied if the information promotes the business or services of the information provider or because the information provider has some direct commercial relationship with a third party. That is encompassed by subparagraphs (a)(v) and (vi). 102 Justice Wilcox also considered a submission that, where a party itself creates the information which it supplies, which is expressly designed to advise consumers as to how they should deal with suppliers of goods or services, the supplier should be bound by s 52 of the Act. Justice Wilcox accepted that the fact that the program in question, "The Investigators", was more than a program providing news and comment. However, his Honour held that that was insufficient to deny the protection of s 65A. However, his Honour affirmed the need for the publication to come within the categories of paragraphs (a) or (b). He said that there was no warrant to introduce additional exceptions by reference to what might be regarded as a "commercial interest" (at 282). 103 Section 65A does not, in terms, require that for the exception to apply there must be a commercial interest. To the extent that commercial interests of the kind referred to in the Second Reading Speech are specifically referred to, they are dealt with in subparagraphs (1)(a)(v) and (1)(b). However, the section also includes subparagraph (1)(a)(vi). That provides for an exception for not only a contract but also an arrangement or understanding. The publication may be made not only pursuant to a contract, arrangement or understanding with the third person but also on behalf of a third person. These may not import or impart a commercial interest. 104 I agree with Wilcox J. The exceptions are as provided for in paragraphs (a) and (b) of s 65A(1). It is not necessary for Seven to have a commercial interest in the goods or services the subject of the Episodes or in the publication itself for the exception from liability to apply. 105 Section 65A(1)(a)(vi) applies to the arrangement with Ms Boholt and Ms Forster, who were the suppliers of the goods or services of the kind referred to in paragraph (a). There are three exceptions to the exemption from liability where the Seven Licensees engaged in misleading or deceptive conduct: (1) self advertisement; (2) the publication of matter made on behalf of or pursuant to the arrangement with the women who supplied or promoted goods or services of the kind in the Episodes; and (3) third party advertisement.


case_title: The Glendarroch [1894] P 226


case_text: As the High Court said in Vines v Djordjevitch [1955] HCA 19 ; (1955) 91 CLR 512 at 519: 'But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter.' 68 It follows that this principle applies both to exemptions and exceptions. 69 There is a qualification to the rule in Vines , namely that where one has an exception (of whatever type) to an exception (of whatever type), the onus of proof lies on the person who asserts the exception to the exception (the Glendarroch [1894] P 226 at 231, applied by the High Court in Shipping Corporation of India Limited v Gamlen Chemical Co (Australasia) Proprietary Limited [1980] HCA 51 ; (1980) 147 CLR 142 at 168). Accordingly, the Commission has the burden of establishing that the exception in s 65A(1)(a) to the general exemption in s 65A(1) applies.


case_text: Court's discretion under s 21 of the FCA "is confined by the considerations which mark out the boundaries of judicial power ": Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 582. Accordingly, this Court's original jurisdiction to grant the relief sought by ASIC is found in either s 1337B of the Act or s 39B of the Judiciary Act 1903 (Cth). The question is whether this proceeding involves a "matter" within the meaning of those provisions. Owston accepts that declaratory relief is often given on the motion of a regulator, but it says that usually a declaration is only granted in conjunction with substantive relief which is in its nature either protective such as by the grant of injunctive relief or corrective advertising orders or alternatively a punishment by awarding, for example, civil penalties. It contends that a bare declaration will be made only in rare circumstances, absent other relief that gives effect to a right or obligation. It cites Gaudron J in Truth About Motorways Pty Limited v Macquarie Infrastructure Management Limited [2000] HCA 11 ; (2000) 200 CLR 591 at [52] : There may be cases where a bare declaration that some legal requirement has been contravened will serve to redress some or all of the harm brought about by that contravention. Ainsworth v Criminal Justice Commission (109) was such a case. But a declaration cannot be made if it "will produce no foreseeable consequences for the parties". (110) That is not simply a matter of discretion. Rather, a declaration that produces no foreseeable consequences is so divorced from the administration of the law as not to involve a matter for the purposes of Ch III of the Constitution . And as it is not a matter for those purposes, it cannot engage the judicial power of the Commonwealth. (See Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 582, per Mason CJ, Dawson, Toohey and Gaudron JJ). Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 was cited by Owston in support of the proposition that the Court may not be "forced to consider a hypothetical situation where its decision will produce no foreseeable consequences for the parties". Jododex is not authority for such a proposition. Rather, this formulation reflects the language of the joint judgment in Ainsworth at p 582 adopting what had been said in University of New South Wales v Moorhouse [1975] HCA 26 ; (1975) 133 CLR 1 at 10 as to a hypothetical question and in Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 at 188, as to "foreseeable consequences". It is also the formulation adopted by Gaudron J in Truth About Motorways at [52]. Gibbs J at 435 in Jododex said that the jurisdiction to make a declaration is a very wide one. Jododex is, as was also approved by the majority judgment in Ainsworth, authority, at 437, that the power of superior courts to grant declaratory relief is discretionary which "it is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise". The jurisdiction to grant declaratory relief is wide. In JN Taylor Holdings Ltd (in liq) v Bond (1993) 59 SASR 432 at 435-436 there is a useful collection of relevant authority to that effect. King CJ, with whom Prior and Perry JJ agreed observed: Authoritative judicial statements make it clear that the jurisdiction to grant declaratory relief is very wide and that judicial pronouncements appearing to restrict the circumstances in which such relief will be granted relate to the sound exercise of the discretion rather than to jurisdiction; Ibeneweka v Egbuna [1964] 1 WLR 219 at 225; Forster v Jododex Australia Pty Ltd esp per Gibbs J at 438; Salmar Holdings Pty Ltd v Hornsby Shire Council [1971] 1 NSWLR 192 per Mason JA at 201. It is not necessary that the plaintiff have a cause of action against the defendant: Guaranty Trust Company of New York v Hannay and Co [1915] 2 KB 536. A statement by Lord Sterndale MR in Hanson v Radcliffe Urban District Council [1922] 2 Ch 490 at 507, quoted by Gibbs J in Forster v Jododex at 435, appeared to confine the otherwise unlimited character of the jurisdiction to cases involving "a question of defining the rights of two parties". As was pointed out, however, by Street CJ in Johnco Nominees Pty Ltd v Albury-Wodonga (NSW) Corporation [1977] 1 NSWLR 43 at 51, that statement was made "at a time when the declaratory jurisdiction had not achieved the full development manifested in the last 20 or 30 years." By 1970 the Privy Council could say in Rediffusion (Hong Kong) Ltd v Attorney-General of Hong Kong [1970] AC 1136 at 1158 that to exclude the jurisdiction it must appear "that the questions were purely abstract questions the answers to which were incapable of affecting any existing or future legal rights of the plaintiffs" [emphasis mine]. In Johnco Nominees Pty Ltd v Albury-Wodonga (NSW) Corporation (above), Street CJ (at 53) repudiated the notion of jurisdictional cut-off points in relation to declaratory relief. Moffitt P said (at 57): The proper conclusion to be drawn concerning the power to make a declaration is that the jurisdiction (in the strict sense) to grant declaratory relief in a properly constituted action is very wide, so that no particular limitation can be pointed to ... I can find no warrant for the imposition by the courts of a self-denying restriction on their jurisdiction to grant declaratory relief. In my opinion there is no jurisdictional limit. The court's power to grant such relief is "only limited by its own discretion" ( Hanson v Radcliffe at 507), and the boundaries of judicial power: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 581-582.