case_title: Comcare v Holt [2007] FCA 405 , 94 ALD 576

case_text: A Statement of Facts and Contentions should obviously not be construed with the constraints appropriate to a pleading in a Superior Court. Nor should a Statement of Facts and Contentions be filed with such generality that all issues which potentially may emerge will be held subsequently to fall within one or other of the matters set forth. But it should be drafted with a sufficient level of precision to enable both an opponent and the Tribunal to know the facts and contentions being raised for consideration. The procedures of the Tribunal are sufficiently flexible to permit of any subsequent need to revisit a Statement which has been filed if that is necessary to ensure that the " correct or preferable decision " is reached and reached in a manner which permits all parties to have a " reasonable opportunity to present his or her case ": Administrative Appeals Tribunal Act 1975 (Cth), s 39(1). Within those broad limits, the procedures followed by the Tribunal should be sufficiently flexible to permit new or additional contentions to be raised, where that is necessary to ensure that the Tribunal properly discharges its functions, and sufficiently flexible to ensure that contentions which may have been initially raised at the outset of proceedings are able to be later abandoned (eg, Comcare v Holt [2007] FCA 405 at [33] , [2007] FCA 405 ; 94 ALD 576 at 583 per Mansfield J). 23 Notwithstanding such flexibility, this first contention of Comcare is rejected. 24 But Comcare's alternative submission, namely that the Tribunal has impermissibly equated profit with an ability to earn, it is considered should prevail. Comcare's Contentions as filed with the Tribunal unequivocally asserted that Ms Davies had " an ability to earn in suitable employment ", and also that " an ability to earn should not be confused with ability to run a profitable business ".


case_outcome: followed

case_title: Comcare v Line [2002] FCA 553

case_text: Section 19(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) relevantly provides as follows: Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula: NWE AE where: "AE" is the greater of the following amounts: (a) the amount per week (if any) that the employee is able to earn in suitable employment; (b) the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week. "NWE" is the amount of the employee's normal weekly earnings. That provision, by its terms, requires a calculation to be undertaken whereby there is deducted from an employee's normal weekly earnings an amount which is the greater of either the weekly amount that an employee is " able to earn in suitable employment " or the amount which an employee earns from " any employment (including self-employment) that is undertaken by the employee during that week ". The legislative intention of this provision is presumably to ensure that an employee is not entitled to retain the whole of his actual earnings and also to retain 100% of his normal weekly earnings: Comcare v Line [2002] FCA 553 at [60] per Carr J. And, the amount that an employee may be " able to earn " is not to be equated with profit: J & H Timbers Pty Ltd v Nelson [1972] HCA 12 ; (1972) 126 CLR 625. Windeyer J there observed at 643: ... The earning capacity of a man as a worker is measured by the remuneration that is the fruit of his labour, his wages or their equivalent. It is not to be measured by the profits he derives by embarking his capital in a business or by his usual capital equipment in earning money... See also: Comcare Australia v Woodbridge (Unreported, Federal Court of Australia, O'Loughlin J, 13 February 1996).


case_text: The requirement imposed by s 43(2B) of the 1975 Act has to be applied in the factual context being considered and applied in a realistic and practical manner. One objective of that provision, of course, is " to make the system of appeals effective ": Roncevich v Repatriation Commission [2005] HCA 40 at [62] , [2005] HCA 40 ; 222 CLR 115. The adequacy of reasons provided, however, is also a matter of " substance ": Dodds v Comcare Australia (1993) 31 ALD 690. Burchett J at 691 there observed: The obligation to furnish reasons, and to furnish reasons which are adequate, is a very important obligation. It is a pillar of the system of administrative decision-making by the Tribunal, and it is essential that the Court should insist on its fulfillment. But it is the substance of the obligation that matters. Indeed, as Lord Suniner pointed out in 55 Hontestroom v 55 Sagaporack [19271 AC 37 at 50, even a Judge's reasons on a question of fact will not be vitiated by "imperfections in form and expression". Section 43 is not to be construed in a pedantic spirit, but sensibly. If the Tribunal's reasons exposed the logic of its decision, and contained findings on those matters of fact which are essential to that logic, it will not be, easy to demonstrate a failure of compliance with the requirement to include "findings on material questions of fact".


case_text: Even where one or other or both parties are represented before the Tribunal, a party may depart from the contentions it has identified in its written Statement . Indeed, to conclude otherwise may confine the ability of the Tribunal to discharge its principal function of making the " correct or preferable decision ": Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409 at 419. Factual or legal contentions or issues different to those raised in a Statement of Facts and Contentions may emerge in any one of a number of ways, including from questions asked by the Tribunal or that arise from evidence given and subsequent cross-examination. Facts or contentions different to those raised in a Statement of Facts and Contentions may also arise from the manner in which a case is opened or even, although far from desirable, in closing submissions. 20 In the present proceedings before the Tribunal, however, such questions as were asked of Ms Davies in cross-examination, it is considered, could not fairly be construed as raising for resolution the potential for Ms Davies to engage in other forms of suitable employment. Neither the invoices disclosing monies charged for lecturing or the questions asked of her during cross-examination would have alerted her to the possibility that Comcare could be suggesting the development of that part of her abilities as other " suitable employment ".


case_text: No " question of law ", it is considered, arises in circumstances of the present appeal where the Tribunal did not resolve an issue or did not make findings of fact in respect to other forms of " suitable employment " where no such contention was advanced before it. " Some difficulty ", it has been said, must arise " in finding as 'error of law'... the failure in the Tribunal to make a finding first urged in this court ": Federal Commissioner of Taxation v Raptis (1989) 19 ALD 726 at 728 per Gummow J. Appl'd: Chen v Minister for Immigration & Multicultural Affairs [2000] FCA 1901 at [88] [89], [2000] FCA 1901 ; 106 FCR 157 at 175 6 per Carr J.


case_outcome: cited

case_text: In some circumstances this Court may proceed to resolve a submission which has not previously been raised before the Tribunal: Kuswardana v Minister for Immigration & Ethnic Affairs (1981) 54 FLR 334. Bowen CJ there observed at 343: ... In my opinion a party is not necessarily precluded by the conduct of his case before the Tribunal from arguing on "appeal" matters conceded below. If he is successful then the decision of the Tribunal may be overturned -- found in some way to be wrong in law, even though that error may have been substantially contributed to by the conduct of the case by the party in question. In other words, the conduct of the party's case before the Tribunal goes to this court's discretion as to what course it will take given that there has been an error rather than to the question as to whether the Tribunal really made an error. The case before this court is not merely one of parties agreeing upon what facts should be decided by the trier of fact, nor a case of facts, peculiarly within the knowledge of the party, being conceded. Rather, there was a clear statutory precondition upon which the Tribunal had to be satisfied and enough material and evidence before it to raise the issue independently of the parties' submissions. In these circumstances it was an error of law not to consider and decide the issue of immigrant status. Whether or not that error should lead to the decision of the Tribunal being set aside and the matter remitted to it depends, in my view, upon principles similar to those expressed by Dixon J in Burston's case, supra and by the same judge in Orr v Holmes [1948] HCA 16 ; (1948) 76 CLR 632 at 640: "to fulfil an imperative demand of justice". Appl'd: Ferriday v Repatriation Commission (1996) 69 FCR 521 at 527 8 per Lee J. The present appeal, it is considered, is not such a case. Left unexplored with Ms Davies is what may constitute " suitable employment " other than her Bali Gardens business and the quantification of her ability to earn. Although these may be matters fundamental to the application of s 19(2), each is very much a factual matter which to date has largely been left unexplored in the evidence and is best left to the Tribunal to undertake. The fact that other issues have also been left unresolved by the Tribunal, only further reinforces the desirability of leaving all issues to the Tribunal to determine upon the basis of such further evidence (if any) as is considered appropriate.


case_text: Section 19(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) relevantly provides as follows: Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula: NWE AE where: "AE" is the greater of the following amounts: (a) the amount per week (if any) that the employee is able to earn in suitable employment; (b) the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week. "NWE" is the amount of the employee's normal weekly earnings. That provision, by its terms, requires a calculation to be undertaken whereby there is deducted from an employee's normal weekly earnings an amount which is the greater of either the weekly amount that an employee is " able to earn in suitable employment " or the amount which an employee earns from " any employment (including self-employment) that is undertaken by the employee during that week ". The legislative intention of this provision is presumably to ensure that an employee is not entitled to retain the whole of his actual earnings and also to retain 100% of his normal weekly earnings: Comcare v Line [2002] FCA 553 at [60] per Carr J. And, the amount that an employee may be " able to earn " is not to be equated with profit: J & H Timbers Pty Ltd v Nelson [1972] HCA 12 ; (1972) 126 CLR 625. Windeyer J there observed at 643: ... The earning capacity of a man as a worker is measured by the remuneration that is the fruit of his labour, his wages or their equivalent. It is not to be measured by the profits he derives by embarking his capital in a business or by his usual capital equipment in earning money... See also: Comcare Australia v Woodbridge (Unreported, Federal Court of Australia, O'Loughlin J, 13 February 1996). 37 In some circumstances actual net earnings might be seen as reflecting an ability to earn: Cage Developments Pty Ltd v Schubert [1983] HCA 37 ; (1983) 151 CLR 584. Gibbs CJ, Murphy, Brennan, Deane and Dawson JJ there observed at 587 8: . . . there may well be cases in which the actual earnings of a business either represent the actual or potential earnings of a former worker during a period of partial incapacity. Where, for example, a business consists essentially of the provision of personal services by the former worker (eg a business of a sole plumber or casual gardener) and no significant investment of capital is involved, the actual net earnings of the business might properly be seen as representing the actual "reward for [the] labour" of the former worker (see J & H Timbers Pty Ltd v Nelson, at 652) during a period of partial incapacity. In such a case, if the former worker is carrying on business solely on his own account, the net earnings of the business might properly be seen as representing the "amount he is earning" in a business; if he is carrying on business in partnership or as an employee of a family company, the net earnings might properly be seen as representing the "amount he ... is able to earn" either in employment or in a business. The difficulty with the approach of the Tribunal in the present proceedings is that the evidence the Tribunal was relying upon to reach its conclusion has not been identified; nor have findings of facts been made or reasons provided. The Tribunal has set forth a conclusion but none of the processes by which it reached that conclusion.


case_title: Kuswardana v Minister for Immigration & Ethnic Affairs (1981) 54 FLR 334


case_text: It is unnecessary to place reliance upon a further submission advanced on behalf of Comcare that error on the part of the Tribunal is further exposed -- or at least supported -- by the failure of the Tribunal to make reference to s 19(2) in terms. Comcare sought to draw some support for its contention that s 19(2) had not been properly considered from the fact that the Tribunal expressly refers to s 19(4), but makes no reference to s 19(2). Section 43(2B) does not require the Tribunal to include or make reference to law or legal principles: cf McAuliffe v Department of Social Security [1991] FCA 268 ; (1991) 13 AAR 462 at 469 per von Doussa J. Had it been necessary to resolve this submission, it most probably would have been resolved against Comcare. Although not referring to s 19(2), it is evident from the Tribunal's reasons that it was directing its consideration to the subject matter of s 19(2) and applying its provisions to the facts before it. Hence the Tribunal referred to: " What amount, if any, was Ms Davies able to earn in 'suitable employment'? " It also gave consideration to, " What was 'suitable employment' for Ms Davies? ", and separate consideration to, " What amount was Ms Davies able to earn in her employment in her own business during the period 28 September 1999 to 19 April 2006? " 40 Order 5 as made by the Tribunal quantified Ms Davies' ability to earn as " nil " for the period ending on " 30 June 2004 ". 41 The period for which compensation was payable ended on 19 April 2006.


case_text: Section 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) provides as follows: Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. The nature and extent of this obligation has been extensively canvassed. For the purposes of the resolution of the present appeal it is sufficient to note that the reasons of the Tribunal are " meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed ": Minister for Immigration & Ethnic Affairs v Liang [1996] HCA 6 , 185 CLR 259 at 272. But it is equally important " to review the Tribunal's reasons to be satisfied that the Tribunal has in fact had regard to the matters which it must address ": Zhang v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 30 at [14] .


case_title: Re Davies and Comcare [2007] AATA 1829

case_text: This is an appeal from a decision of the Administrative Appeals Tribunal made on 3 October 2007: Re Davies and Comcare [2007] AATA 1829. In that decision the Tribunal concluded that as from 3 December 2001 Ms Davies had been partially incapacitated for work as a result of an injury she had suffered and was entitled to compensation in respect to that injury. 2 Comcare seeks to appeal from that decision. Its Grounds of Appeal are: (i) whether the Tribunal misconstrued the meaning of the phrase " able to earn " as it arises in subsection 19(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cth); and (ii) whether the Tribunal failed to provide adequate reasons as required pursuant to subsection 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) for that part of its decision at paragraph 71(5). Paragraph 71(5) of the Tribunal's decision concluded that: during the period 3 December 2001 to 30 June 2004 inclusive, the amount which Ms Davies was able to earn in employment in the business was nil.


case_title: Roncevich v Repatriation Commission [2005] HCA 40 , 222 CLR 115


case_text: It is not the fact that the Tribunal has not referred to such evidence as that set forth (for example) in the Walter Turnbull report which exposes a " question of law " ( SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389 at [58] per Lindgren J; SZHPI v Minister for Immigration & Citizenship [2008] FCA 306 at [15] ). The question arises by reason of the Tribunal not making necessary findings of fact and referring to the evidence upon which it makes such findings. Its failure to do so is a departure from the requirements imposed by s 43(2B) and renders " ineffective " the appeal process to this Court. In the absence of explanation, neither Ms Davies nor this Court knows how the Tribunal reached the conclusion that it did. In the absence of explanation, it would appear that the Tribunal has wrongly equated net profit with earning ability.


case_title: SZHPI v Minister for Immigration & Citizenship [2008] FCA 306


case_title: Zhang v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 30


case_outcome: referred to

case_text: details of the break fee are addressed in the affidavit of Mr Barry John Hamilton, who is the non-executive Chairman of People. Importantly, the break fee is not payable if the proposed scheme is not approved by the shareholders, thus it cannot be said to be a matter which could influence voting at the scheme meeting: see Re SFE Corporation Limited [2006] FCA 670 per Gyles J at [6] to [7]; see also Re APN News & Media Ltd [2007] FCA 770 ; (2007) 62 ACSR 400 at [43] .


case_title: Re SFE Corporation Limited [2006] FCA 670


case_text: As the proceeding was commenced in the New South Wales Registry, Sydney is presently the ' proper place ' in relation to the proceeding (see the definition of that expression in O 1 r 4) and, unless an order is made to the contrary, the place of trial will be Sydney (O 30 r 6(1)). However, it is not necessary for the proceeding to be transferred to the Cairns Registry to enable the trial, or any part of it, to be heard in Cairns. The Court may direct that the trial, or any part of the trial, be held at a place other than the proper place (O 30 r 6(2)). In Andrew & Frewin Pty Ltd v Arrow Limited [1990] FCA 247 the Full Court observed that O 30 r 6 authorised the Court to take evidence in various cities so as to accommodate the needs of witnesses notwithstanding that a different city was the proper place.


case_outcome: applied

case_text: In National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155 the Full Court noted at 162 that the power conferred on the Court by s 48 of the Federal Court of Australia Act to direct that a proceeding or part of a proceeding be conducted or continued in a place specified in the order is in wholly unfettered terms. Their Honours observed that the power, which recognises the national character of the Court, should be exercised flexibly having regard to the circumstances of the particular case. Factors which the Full Court recognised as likely to influence the exercise of the power included the place of residence of parties and witnesses, expense to parties, the place where the cause of action arose and the convenience of the Court itself. The Full Court noted that there is no onus of proof in the strict sense to be discharged by a party seeking to conduct or continue the proceeding in a place other than the proper place, but observed that the Court must be satisfied, after consideration of all relevant factors, that there is sound reason to direct that the proceeding be conducted or continued elsewhere. The Full Court expressed the ultimate test in the following way at 162: '[W]here can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court.' 4 The applicants' solicitor is presently a partner of the law firm Maddocks and based in Sydney. Maddocks does not have an office in Brisbane or Cairns. The applicants have retained a Sydney based barrister. The applicants accept that the cause of action arose in Cairns and that any evidence of fact required at trial is likely to be given by witnesses resident in Cairns. However, the applicants expect that it will be more difficult to find expert witnesses in Cairns or Queensland generally than in New South Wales or Victoria. 5 The second respondent, who is a director of the first respondent, lives in Cairns. The respondent's solicitors are Gadens Lawyers, Cairns. Gadens Lawyers advertises itself as a top-ten national firm, with staff and offices in every mainland state and with a national capacity in intellectual property. The respondents do not envisage that any matter pleaded by them is likely to require factual evidence to be called from a witness who is not resident in Cairns. They have not placed evidence before the Court, no doubt because of the early stage of the proceeding, touching on the residence or place of business of any expert witness who they may call. 6 If the proper place of this proceeding were to become Cairns the proper place would be a registry at which no judge is resident. It is likely that the matter would be allocated to the docket of a Brisbane resident judge. Although a Brisbane resident judge visits Cairns each quarter I cannot be confident that the visiting judge on all or any occasion would be the docket judge to whom the case would be assigned. As the Full Court in National Mutual stressed, this Court is a national Court. It is a court which makes regular use of video and telephone facilities for directions hearing and in which documents can be filed electronically or by facsimile transmission. A judge based in Sydney, like a judge based in Brisbane, is capable of travelling to Cairns should the proper management of the case so require. 7 Having considered each of the matters to which the Full Court drew attention in National Mutual , I am not presently satisfied that there is sound reason to direct that the proceeding be transferred to the Cairns Registry of the Court. I would have reached the same conclusion were the application made with respect to the Brisbane Registry. I do not rule out the possibility that the position could change. However, in my view, the proceeding can presently be suitably conducted in Sydney. I do not expect that there will be any difficulty in my giving the parties a convenient trial date when they are ready for such a date to be allocated. Should it appear, nearer the time for trial, that the balance of convenience suggests that the Court should take some or all of the evidence in Cairns or Brisbane, arrangements can be made accordingly. 8 For these reasons the application for the proceeding to be transferred to the Cairns Registry of the Court is dismissed. By consent it is ordered that the costs of this application be costs in the cause. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate: Dated: 19 December 2006 Counsel for the First and Second Applicants: Mr A Fox Solicitor for the First and Second Applicants: Maddocks Lawyers Counsel for the First and Second Respondents: Mr A Lyons Solicitor for the First and Second Respondents: Gadens Lawyers Date of Hearing: 11 December 2006 Date of Judgment: 11 December 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1780.html


case_title: Beach Petroleum NL v Johnson (No 2) (1995) FCR 119

case_text: In Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120F-G von Doussa J said of O 62 r 4(2)(c) that: 'The purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation. The power is appropriate to be used in complex cases.' 6 In my opinion it is also appropriate to be used in cases which are simple and in which there would be utility in the court cutting the Gordian knot of protracted fights about costs which is the hallmark of this particular piece of litigation. It is a commonplace for the court to fix in administrative appeals under the Migration Act 1958 (Cth) an amount of costs for a successful party. 7 In my opinion, it is appropriate that an amount of costs be fixed by the court so as to prevent yet further argument and delay in finalising this matter.


case_text: The legal principles governing costs in proceedings brought under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) are found in s 67 of that Act. Greenwood J in Perry v Comcare [2006] FCA 33 ; (2006) 150 FCR 319 at [65] - [66] made the following observations: The provisions of s 67 "constitute a code in the area of costs": Riley v Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees (1994) 48 FCR 449 per Beaumont J. The elements of that code are these. The primary rule, subject to the operation of the section is, "the costs incurred by a party to proceedings instituted under Pt VI before the Tribunal shall be borne by that party": (s 67(1)). Subsections (2) to (12) of s 67 provide specific circumstances where the primacy of s 67(1) might be displaced. (Emphasis in original.) 3 Subsection (8) gives the Tribunal a discretion to make orders as to costs in certain circumstances. That provision is in the following terms: (8) Where, in any proceedings instituted by the claimant, the Administrative Appeals Tribunal makes a decision: (a) varying a reviewable decision in a manner favourable to the claimant; or (b) setting aside a reviewable decision and making a decision in substitution for the reviewable decision that is more favourable to the claimant than the reviewable decision; the Tribunal may, subject to this section, order that the costs of those proceedings incurred by the claimant, or a part of those costs, shall be paid by the responsible authority. 4 According to Greenwood J in Perry [2006] FCA 33 ; 150 FCR 319 at [76] : In exercising the discretion, the Tribunal ought have regard to the rule of primacy reflected in s 67(1), the circumstances of the case which gave rise to a decision enlivening the qualification upon s 67(1), the background circumstances concerning the claim, the nature and character of proceedings for the purposes of the SRC Act, the complexity of the claim and the conduct of the parties in relation to the proceeding . (Emphasis added.) 5 There was some argument during the hearing in this appeal as to whether the requirements of s 67(8)(b) had been satisfied in this case. I ordered that the matter be remitted to the Senior Member for clarification as to the nature of the decision made by him. Senior Member Allen then directed the Registrar of the Tribunal to alter the decision such that it now expressly states that the decision under review was set aside and a decision favourable to the applicant was made in substitution. 6 All that now remains in this appeal is to determine whether the Senior Member committed any error of law adverse to the applicant in the exercise of his discretion as to costs. 7 It is now to be taken that Senior Member Allen decided that a reviewable decision should be set aside and that the respondent was liable, pursuant to s 14 of the SRC Act, for a temporary exacerbation of symptoms caused by cervical spondylosis suffered by the applicant. 8 In his reasons for his decision that each party should pay its own costs, the Senior Member referred to a letter from the respondent to the applicant dated 15 August 2006. The letter contained a "Calderbank" offer of settlement. The respondent was prepared to concede that the applicant had suffered an aggravation of an existing condition, and that he was entitled to compensation under ss 16 and 19 of the SRC Act, but only from 27 April 2005 to 8 June 2005 (in reliance on a medical report of Dr Olsen, which stated that any aggravation was temporary). The offer included an undertaking by the respondent to pay the applicant's costs of the proceedings. No response was received to this letter. 9 The Senior Member referred to Perry [2006] FCA 33 ; 150 FCR 319 as authority allowing consideration of a "Calderbank letter" in the exercise of the discretion conferred by s 67(8). The Senior Member considered that the letter of offer in this matter satisfied the criteria set out in Perry 150 FCR at 327, 333-5, that it be clear, precise and certain, particularly with respect to the question of costs. 12 Perry 150 FCR at [89] makes it clear that it is not necessary that a Calderbank offer must conform to the principles dictating the validity of such an offer for it to be considered by the Tribunal in the exercise of its discretion under s 67(8). This is because the Tribunal is to have regard to the "circumstances of the case", and any such offer, regardless of validity, forms part of these circumstances. As outlined above, the Senior Member held that the Calderbank offer would not have been capable of being confirmed by the Tribunal, due to the principle in Lees 56 ALD 84. However, he seems to have reasoned that this prevented him from taking the offer into consideration when exercising his discretion as to costs. Such reasoning is incorrect in the light of Perry [2006] FCA 33 ; 150 FCR 319. This was an error of law in the exercise of the Tribunal's discretion, but it was an error in favour of, rather than against, the applicant. Even though the Senior Member purported not to consider the offer while exercising his discretion, he clearly outlined how he would have taken the letter into account, had he considered himself able to do so. Such treatment would not have been favourable to the applicant. 16 The principles governing the exercise of the discretion in a case such as this were articulated in a passage in Perry 150 FCR at [90]: [The] discretion was not fettered by any rule, policy or binding principle. The fundamental obligation of the Tribunal in the exercise of the discretion was to do justice between the parties according to its assessment of the circumstances of the case. Whether, in exercising the discretion, if conferred upon it, the Court might have taken a different view about the allocation of costs or circumstances influencing whether the respondent might be ordered to pay the costs or a part of the costs, is not to the point. The question of whether, in all the circumstances, the applicant acted reasonably is a question of fact to be determined by the Tribunal and it is not open to the Court to substitute its own view of those facts or the exercise of the discretion. 17 I do not understand the Senior Member to have overlooked the general rule of primacy that successful claimants are to have their costs paid, to be deduced from s 67(8), but rather to have considered that, as against that, the proceedings had been unduly prolonged as a result of the applicant's conduct of them. The Tribunal then, in a broad brush way, made the costs order it did to reflect those competing considerations. The Senior Member had the benefit of being apprised in detail of the conduct of the parties throughout the course of the proceedings and of the general standards of conduct by parties in similar litigation before it. The full transcript of proceedings was not before this Court. The facts that are before the Court are not such as to justify a conclusion that the Tribunal erred as a matter of law in a way that was contrary to the interests of the appellant. 18 In my opinion no error of law such as might have assisted the applicant before the Tribunal has been demonstrated. Although there was an error of law by the Senior Member, its correction could only worsen, not improve, the applicant's position.


case_outcome: discussed

case_title: Lees v Comcare (1999) 56 ALD 84

case_text: However, the Senior Member was of the opinion that the agreement proposed by the letter, which was to be the basis for a proposed consent decision of the Tribunal, did not constitute a decision open to the Tribunal to make. This was due to the principle in Lees v Comcare (1999) 56 ALD 84 which prevents the Tribunal from exercising any powers or discretions which were not available to the authority making the reviewable decision. The reviewable decision had affirmed the original decision that there was no liability under s 14 of the SRC Act, which deals with liability for injury. The offer of compromise dealt with compensation under ss 16 and 19, which relate to compensation for medical expenses and incapacity respectively. The Senior Member held that the Calderbank letter "was of no effect". 11 In deciding that nevertheless each party should bear its own costs, he relied instead on the applicant's Statement of Facts and Contentions. According to the Senior Member the Statement claimed relief in terms far broader than liability simpliciter under s 14. The hearing was, in his opinion, extended unnecessarily as a result and, therefore, each party should bear its own costs. 12 Perry 150 FCR at [89] makes it clear that it is not necessary that a Calderbank offer must conform to the principles dictating the validity of such an offer for it to be considered by the Tribunal in the exercise of its discretion under s 67(8). This is because the Tribunal is to have regard to the "circumstances of the case", and any such offer, regardless of validity, forms part of these circumstances. As outlined above, the Senior Member held that the Calderbank offer would not have been capable of being confirmed by the Tribunal, due to the principle in Lees 56 ALD 84. However, he seems to have reasoned that this prevented him from taking the offer into consideration when exercising his discretion as to costs. Such reasoning is incorrect in the light of Perry [2006] FCA 33 ; 150 FCR 319. This was an error of law in the exercise of the Tribunal's discretion, but it was an error in favour of, rather than against, the applicant. Even though the Senior Member purported not to consider the offer while exercising his discretion, he clearly outlined how he would have taken the letter into account, had he considered himself able to do so. Such treatment would not have been favourable to the applicant. 13 The Senior Member went on to consider the circumstances of the case generally, including the parties' conduct with respect to the proceeding. In short, he took the view that the applicant had sought to, and had, litigated issues going beyond those which could lawfully result in useful relief. The decision under review had dealt only with the respondent's liability to pay compensation to the applicant and, being negative, had not dealt with the quantum of any compensation that would be payable (on the basis of computation of the compensation payable). Very inconveniently for all concerned, that appears to be the state of the law in the workers' compensation cases governed by the SRC Act, as a result of the decision in Lees 56 ALD 84. (In the course of the hearing, I suggested that the statutes should be amended to do away with this considerably inconvenient and expensive need for multiple considerations of a single claim.) The applicant had embarked on a lengthy investigation of the duration of his incapacity, though the Tribunal could not lawfully determine that issue in the instant proceeding. 14 The principal contention of the applicant was that, having won the case, he should have his costs. The respondent had not simply offered to concede liability but sought, itself, to tie that concession to a determination favourable to itself of an issue that was not lawfully before the Tribunal. In some cases, where no party has objected, the Tribunal has been willing in a commonsense way to determine both liability and quantum issues where the primary decision maker denied the respondent's liability: small wonder that the applicant, without dissent from either the respondent or the Senior Member, had sought to litigate both issues.


case_title: Australian Coal and Shale Employees' Federation v Commonwealth [1953] HCA 25 ; (1953) 94 CLR 621


case_text: If this Court were free to review the Tribunal's discretion as to costs as on a re-hearing de novo, there might well be something to be said for this view. However, that is not the case. An error of law must be shown. Where the exercise of a discretion is involved, this usually involves the application of some legally mistaken principle. In matters of practice and procedure and, perhaps especially, costs in a well-trodden field such as workers' compensation litigation, such an error ought not lightly be inferred, because the discretion is a broad one, confined only by considerations relevant to the case at hand: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 per Gaudron & Gummow JJ at [22].


case_text: This is a design case in which the applicants claimed injunctive relief and damages for infringement of the first applicant's registered designs in respect of plates or, at the first applicant's option, an account of profits in respect of the infringement of its designs. On 7 September 2004, I published reasons for judgment on liability: Willis Tu v Pakway Australia Pty Ltd [2004] FCA 1151 (" Willis Tu "). I found that the first and second respondents had infringed the registered designs. The applicants elected to have an account of profits and, by agreement, the parties subsequently settled on $36,728 as the amount of profit. The parties were, however, unable to agree on costs and have filed submissions concerning a number of costs questions. The question of costs now falls for determination. 2 The respondents concede that the applicants are entitled to a general order for costs in their favour. However, they submit that they are entitled to costs that were reserved in connection with the application for an interlocutory injunction and the notice of motion filed on 13 February 2002. The respondents also claim that the applicants should not recover costs relating to affidavits of Robin Walton, the evidence of Peter Kingsley Bayly, and the retention of two counsel for trial. 3 The applicants submit that there is no reason to depart from, or modify, the application of the general rule that costs follow the event. Moreover, they submit that the Court should order that costs not be reduced by one-third pursuant to O 62 r 36A(1) of the Federal Court Rules 1979 (Cth) ("the Rules"). 18 The affidavits of Robin Walton and the evidence of Peter Bayly, to the extent admissible, did not much advance the applicants' case: see Willis Tu at [90]. Nevertheless, Mr Bayly's evidence assisted the Court in identifying the significant features of the registered designs: see Willis Tu at [91]-[94]. In the circumstances of the case, I do not find the applicants' reliance on his evidence as so unreasonable as to justify denying him the costs of this evidence. Similarly, I would not disallow the applicants the costs of Mr Walton's affidavits simply because these affidavits included some unnecessary technical details and the applicants did not succeed on the issues to which they were directed. 19 Accordingly, the applicants should recover the costs relating to the affidavits of Mr Walton and the evidence of Mr Bayly. 20 Finally, the respondents contended that the applicants should not recover the costs of retaining senior and junior counsel. This is an issue that is properly raised before a taxing officer, although I deal with it here as a matter of expediency.


case_text: The power of the Court to make orders for costs derives from s 43 of the Federal Court of Australia Act 1976 (Cth). A successful litigant is ordinarily entitled to an award of costs: see, e.g., Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at 97 per McHugh J (dissenting in result) and 120-1 per Kirby J. The power to make orders for costs is, however, discretionary, although it "must be exercised judicially and not against the successful party except for some reason connected with the case": see Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 (" Ruddock v Vadarlis (No 2) ") at 234 per Black CJ and French JJ. As their Honours said in that case, at 234 235: "Within the general discretion of the courts to award costs it is accepted by decisions in both Australian and English jurisdictions that: • Ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order. • Where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed. • A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them. In this sense ' issue ' does not mean a precise issue in the technical pleading sense but any disputed question of fact or law. See Hughes v Western Australian Cricket Association (Inc) and Ors (1986 ) ATPR 40 748 at 48,136 ; approved by the Full Court in Queensland Wire Industries Pty Ltd v Broken Hill Co Ltd (1987) 17 FCR 211 at 222."


case_text: The power of the Court to make orders for costs derives from s 43 of the Federal Court of Australia Act 1976 (Cth). A successful litigant is ordinarily entitled to an award of costs: see, e.g., Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at 97 per McHugh J (dissenting in result) and 120-1 per Kirby J. The power to make orders for costs is, however, discretionary, although it "must be exercised judicially and not against the successful party except for some reason connected with the case": see Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 (" Ruddock v Vadarlis (No 2) ") at 234 per Black CJ and French JJ. As their Honours said in that case, at 234 235: "Within the general discretion of the courts to award costs it is accepted by decisions in both Australian and English jurisdictions that: • Ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order. • Where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed. • A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them. In this sense ' issue ' does not mean a precise issue in the technical pleading sense but any disputed question of fact or law. See Hughes v Western Australian Cricket Association (Inc) and Ors (1986 ) ATPR 40 748 at 48,136 ; approved by the Full Court in Queensland Wire Industries Pty Ltd v Broken Hill Co Ltd (1987) 17 FCR 211 at 222." 5 Ordinarily, if a successful party is denied an order for costs in whole or part, it is because of its conduct of the proceeding in some respect or respects. In Ruddock v Vadarlis (No 2) at 236, Black CJ and French J said: "Within the general discretion to award costs, costs may be refused where, for example, the applicant has made an exaggerated claim which has occupied a significant proportion of the proceedings and has succeeded only on a minor aspect of its original claim. Costs may be apportioned according to success or failure on particular distinct or severable issues ... . And a trial judge may award only a proportion of the successful party's costs if the conduct of that party at trial was such as to unreasonably prolong the proceedings ...." (Citations omitted) The ordinary costs order in favour of a successful party is not made where, by reason of the successful party's conduct, it would not be just and reasonable to do so: see, e.g., Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 at 544 per Mason CJ and Cummings v Lewis (1993) 41 FCR 599 at 603 per Cooper J (with whom Sheppard and Neaves JJ generally agreed).


case_title: Hughes v Western Australian Cricket Association (Inc) (1986) 8 ATPR 40-748


case_text: Ordinarily, if a successful party is denied an order for costs in whole or part, it is because of its conduct of the proceeding in some respect or respects. In Ruddock v Vadarlis (No 2) at 236, Black CJ and French J said: "Within the general discretion to award costs, costs may be refused where, for example, the applicant has made an exaggerated claim which has occupied a significant proportion of the proceedings and has succeeded only on a minor aspect of its original claim. Costs may be apportioned according to success or failure on particular distinct or severable issues ... . And a trial judge may award only a proportion of the successful party's costs if the conduct of that party at trial was such as to unreasonably prolong the proceedings ...." (Citations omitted) The ordinary costs order in favour of a successful party is not made where, by reason of the successful party's conduct, it would not be just and reasonable to do so: see, e.g., Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 at 544 per Mason CJ and Cummings v Lewis (1993) 41 FCR 599 at 603 per Cooper J (with whom Sheppard and Neaves JJ generally agreed).


case_title: Cummings v Lewis (1993) 41 FCR 599


case_text: An unsuccessful party is not automatically entitled to costs in respect of those issues of facts or law on which the successful party failed: see Dr Martens Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 (" Dr Martens ") at [54] per Goldberg J; also Re Elgindata Ltd (No 2) [1993] All ER 232 at 237 per Nourse LJ, cited with approval in Hayle Holdings Pty Ltd v Australian Technology Group Ltd (No 2) [2000] FCA 1699 at [9] per Hely J; Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 271-2 per Gummow, French and Hill JJ; Mok v Minister for Immigration, Local Government and Ethnic Affairs (No 2) (1993) 47 FCR 81 per Keely J at 84; and Toohey J in Hughes v Western Australia Cricket Association (Inc) (1986) ATPR 40 748 at 48,136, citing Cretazzo v Lombardi (1975) 13 SASR 4 at 16 per Jacobs J.


case_title: Re Elgindata Ltd (No 2) [1993] All ER 232


case_title: Hayle Holdings Pty Ltd v Australian Technology Group Ltd (No 2) [2000] FCA 1699


case_title: Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261


case_title: Mok v Minister for Immigration, Local Government and Ethnic Affairs (No 2) (1993) 47 FCR 81


case_title: Cretazzo v Lombardi (1975) 13 SASR 4


case_text: The respondents argue that the applicants had a very weak case for the grant of interlocutory relief. It is well established that an applicant for an interlocutory injunction who gives the usual undertaking as to damages must show: (1) that there is a serious question to be tried; (2) that unless an injunction is granted the applicant will suffer irreparable harm for which damages will not be adequate compensation; and (3) that the balance of convenience favours the granting of an injunction: see Castlemaine Tooheys Ltd v The State of South Australia [1986] HCA 58 ; (1986) 161 CLR 148 per Mason ACJ at 153. Clearly, as the successful party in this litigation, the applicants could have satisfied the first prong of this test. It is less certain that the applicants could have satisfied the second requirement. If they had failed to satisfy this requirement then their application for interlocutory relief would have failed: see Hexal Australia Pty Ltd v Roche Therapeutics Inc [2005] FCA 1218 at [62] - [70] (denying interlocutory relief in a patent case where damages provided an adequate remedy).


case_title: Hexal Australia Pty Ltd v Roche Therapeutics Inc [2005] FCA 1218


case_text: Further, the respondents relied on the principle that where a person charged with patent infringement contests the validity of the patent and has grounds for the contest, the alleged infringement ought not be restrained on an interlocutory basis. This principle was discussed in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618 at 623-4 by Kitto, Taylor, Menzies and Owen JJ, referring to Smith v Grigg Ltd [1924] 1 KB 655. The same principle has been held to apply in design cases: see Tefex Pty Ltd v Bowler (1982) 60 FLR 314 at 321 per Rath J and Obsa Pty Ltd v TF Thomas & Sons Pty Ltd (1990) 20 IPR 155 at 158 per Einfeld J. I accept that the respondents had grounds for their invalidity claim even though I did not ultimately accept the claim. The application of the principle was not, however, the subject of any real argument on the interlocutory injunction application, although I note that the respondents raised their invalidity claim early in these proceedings, by a cross claim filed on 5 November 2001.


case_title: Smith v Grigg Ltd [1924] 1 KB 655


case_title: Tefex Pty Ltd v Bowler (1982) 60 FLR 314


case_title: Obsa Pty Ltd v TF Thomas & Sons Pty Ltd (1990) 20 IPR 155


case_text: The respondents cited Reidy's Lures Pty Ltd v Basser Millyard Pty Ltd [2003] FCA 1242 (" Reidy's Lures ") in support of their position. In that case, the applicant sought injunctive relief against the respondents to restrain them from selling a fishing lure under a name similar to the name under which the applicant manufactured and sold its lure. It was alleged that the respondents' conduct involved conduct that was misleading or deceptive contrary to s 52 of the Trade Practices Act 1974 (Cth). The matter was resolved through consent orders granting such injunctive relief and damages of $4,200. Mansfield J ordered that costs be reduced by one third pursuant to O 62 r 36A(1) even though the applicant had secured the injunctive relief. 29 As already indicated, in reply, the applicants noted that Reidy's Lures involved a different kind of cause of action (conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth)) than this matter. Moreover, the applicants claimed that Reidy's Lures was straightforward and involved no challenge to the validity of any trade mark. In contrast, in the applicants' submission, this case, which involved an attack on validity, was far more complex. 31 Although not on all fours with this case, Metro on George is more apposite than Reidy's Lures . As the applicants noted, Reidy's Lures involved a different cause of action, was very simple (the respondents were manufacturing and selling a lure under a name that was almost identical to that of the applicant) and involved no contest of validity. Its simplicity is reflected in the fact that, in marked contrast to this matter, it was settled quickly by consent orders. Moreover, the damages awarded in Reidy's Lures were very small indeed. For reasons similar to those canvassed in Metro on George , I find that it would not be appropriate to reduce the costs recovered in this case.


case_title: Australasian Performing Right Association Limited v Metro on George Pty Limited [2004] FCA 1371

case_text: The Court has a discretion to order that O 62 r 36A(1) not be applied. This discretion is conferred by the words "unless the Court or a Judge otherwise orders." Further, the Court has declined on occasions to apply the rule in intellectual property cases where injunctive relief was granted in addition to monetary relief: see Australasian Performing Right Association Limited v Metro on George Pty Limited (2004) 64 IPR 57 (" Metro on George ") at [8]-[12] per Bennett J and Australian Performing Right Association Ltd v Pashalidis [2000] FCA 1815 at [13] per Moore J. In Metro on George , Bennett J treated the fact that the litigation was complex and the injunctive relief of more importance to the parties than the quantum of damages as a proper basis on which to order that the reduction under O 62 r 36A(1) should not be made. 31 Although not on all fours with this case, Metro on George is more apposite than Reidy's Lures . As the applicants noted, Reidy's Lures involved a different cause of action, was very simple (the respondents were manufacturing and selling a lure under a name that was almost identical to that of the applicant) and involved no contest of validity. Its simplicity is reflected in the fact that, in marked contrast to this matter, it was settled quickly by consent orders. Moreover, the damages awarded in Reidy's Lures were very small indeed. For reasons similar to those canvassed in Metro on George , I find that it would not be appropriate to reduce the costs recovered in this case.


case_text: The Court has a discretion to order that O 62 r 36A(1) not be applied. This discretion is conferred by the words "unless the Court or a Judge otherwise orders." Further, the Court has declined on occasions to apply the rule in intellectual property cases where injunctive relief was granted in addition to monetary relief: see Australasian Performing Right Association Limited v Metro on George Pty Limited (2004) 64 IPR 57 (" Metro on George ") at [8]-[12] per Bennett J and Australian Performing Right Association Ltd v Pashalidis [2000] FCA 1815 at [13] per Moore J. In Metro on George , Bennett J treated the fact that the litigation was complex and the injunctive relief of more importance to the parties than the quantum of damages as a proper basis on which to order that the reduction under O 62 r 36A(1) should not be made.


case_text: 5 February 2009, I gave judgment in this matter: Australian Competition and Consumer Commission v Harris Scarfe Australia Pty Ltd [2009] FCA 54 (the primary judgment). I made certain declaratory and injunctive orders, and reserved for the parties the question of costs. I have now heard submissions on the question of costs. These reasons follow from, and should be read with, the primary judgment. I do not propose to repeat what is said there. The ACCC seeks an order to recover 85% of its costs on a party and party basis, as it contends that it succeeded to a substantial degree on the claims which it made. Harris Scarfe submits that each party should be ordered to pay its own costs up to 2 May 2008, or alternatively up to 29 May 2008, on the basis that the ACCC succeeded only in about 50% of its claims and that the appropriate order, therefore, is that each party should pay its own costs of the proceedings to that date, and thereafter (from one or other of those dates) the ACCC should pay its costs on an indemnity basis because from one or other of those dates it unreasonably refused to engage in negotiations to resolve the matter.


case_text: foundation for the Harris Scarfe contention is found in two letters from its solicitors to solicitors for the ACCC of 2 May 2008 containing a suggested proposal to resolve the ACCC's claims against it, and subsequently a further set of proposals contained in a letter from its solicitors of 29 May 2008. It filed no offer in Court in accordance with O 23 of the Federal Court Rules but relies upon the Calderbank principle: see Calderbank v Calderbank [1975] 3 All ER 333. I have carefully considered the respective submissions for the parties. In my view, the ACCC substantially succeeded in its claims against Harris Scarfe, and the reduction which I propose to make represents a broad brush attempt to reflect the fact that the ACCC did not succeed in respect of its claims of misleading and deceptive conduct in relation to what were called the Storewide Discount Representation and the 20% Off Storewide Representation contained both in the television advertising and in the catalogue. I have also taken into account that the ACCC, even in respect of the contraventions of ss 52 and 53 (e) of the Trade Practices Act 1974 (Cth) (the TP Act) upon which it succeeded, did not succeed in securing all the orders which it sought against Harris Scarfe. The declaratory and injunctive orders were, of course, confined to the particular contraventions established. The relevant injunctive order which the ACCC sought, which was unlimited in point of time, has been limited to a period of three years. No order was made for corrective advertising. An order was made to require Harris Scarfe at its own cost to maintain and continue the trade practices compliance program which it presently conducts, again for a period of three years. However, the detailed audit and supervision of that program, together with any modifications of it, and together with the "probation orders" which the ACCC sought whereby, in the event of further contravention of Pt V of the TP Act during the period of three years from the findings, the ACCC should be entitled to re-apply to the Court to extend the supervisory period in some form or another, were refused. I have taken into account that Harris Scarfe, at least by 2 May 2008, pointed out to the ACCC that it was unlikely to secure an unlimited injunction in time, or corrective advertising or supervision of the trade practices compliance program. I have also taken into account the relative time taken in evidence and submissions on the various issues in arriving at the apportionment as to costs. That includes the fact that the contentions of Harris Scarfe, and the extensive evidence it adduced about its significant attempts to avoid contravening the TP Act were not only relevant to the determination as to the appropriate orders to be made in the event certain contraventions were established, but also were said to be relevant to whether or not the alleged contraventions had occurred. More generally, I have sought to reflect that to a large extent the evidence was common to the allegations of the ACCC, so that even if the particular allegations on which the ACCC did not succeed had not been made, the nature and extent of the overall evidence would not have been much different. In relation to the more specific representations made in the catalogue described by the various banners to which reference is made in the primary judgment, each of those contraventions was established notwithstanding Harris Scarfe's contention that there was no misleading conduct at all because no representation of the nature alleged by the ACCC was made, or because on a detailed or close examination of the particular products advertised under the relevant banner, it could be seen that the banner could not or did not apply to the particular product, or because by reason of more detailed pricing information contained in relation to particular products under the more general banner an analysis of that pricing information would expose that the banner did not, or could not, apply to that particular product. I have exercised the discretion as to costs as if the letter of 29 May 2008 was a "Calderbank offer". Calderbank v Calderbank [1975] 3 All ER 333 was decided to enable a form of offer to be made which, if accepted, would bring an end to the proceedings or which, if rejected, could readily be measured against a judicially determined outcome, where the relevant Rules of Court did not permit an offer to consent to judgment to be filed in the terms of the proposed offer.


case_text: relevant principles for the exercise of the Court's discretion as to costs, in the light of a Calderbank offer, are well-known. The public interest is in the sensible and just compromise of disputes where that is appropriate. That is so whether the parties in dispute are private citizens or governmental instrumentalities. There may be circumstances where compromise is not appropriate, having regard to the nature of the allegations made. For instance, in the face of an allegation of serious fraud or dishonesty, a party may properly seek the vindication which a favourable court determination will recognise. Much depends on the particular circumstances. There may be circumstances, in the case of a public regulator such as the ACCC, where the particular issues are of such importance that it is proper to seek a judicial determination of them. Such cases will necessarily not be common. The ACCC is, like any other party, obliged to seek sensible resolution of disputes: see eg per Dowsett J in Australian Competition and Consumer Commission v Danoz Direct Pty Ltd [2003] FCA 1580 at [6] - [9] . Within the framework of that public interest, a Calderbank offer will be a relevant consideration. It draws the offeree's attention to the need to consider the offer carefully and the possible consequences of rejecting it. If the outcome of a proceeding is that the successful party has obtained judgment on less favourable terms than the offer made, generally costs and not uncommonly indemnity costs may be awarded against the successful party from a point in time after the making of the offer, fixed by reference to the time the offeree party might reasonably have considered and responded to the offer (compare O 23 r 5(3) of the Federal Court Rules ). Such an outcome is not a necessary one. The Court has the discretion to award costs under s 43 of the Federal Court of Australia Act 1976 (Cth) as is just in all the circumstances.


case_text: party seeking indemnity costs on the basis of a Calderbank offer must generally show that the rejection of the offer was so unreasonable as to justify such an order: Inspector-General in Bankruptcy v Bradshaw (No 2) [2006] FCA 383.


case_text: Scarfe has pointed out that such orders have been made against the ACCC in Australian Competition and Consumer Commission v Black on White Pty Ltd [2002] FCA 1605 from the point when it unreasonably rejected an offer in relation to the claims made under s 87(1A) of the TP Act. The letter of offer of 2 May 2008 from solicitors for Harris Scarfe was not one, in my view, which was constructed so as to constitute a reasonable basis for compromising or proposing to settle the proceeding. It was a letter which denied any contravention of the TP Act by Harris Scarfe in respect of the television advertisements or the sale catalogue complained of, and asserted that there was a significant risk of the ACCC's claim not succeeding and its claim being dismissed with costs. The ensuing offer was without any admission of a contravention of ss 52 or 53(e) of the TP Act. The letter then recorded the steps Harris Scarfe had already taken to refine its trade practices compliance program, and proffered a further undertaking under s 87B of the TP Act which involved its best endeavours to ensure adherence to that refined program for a period of three years, and to undertake certain corrective advertising. The proposed undertaking in its recitals went no further than acknowledging the ACCC's concerns that the television advertisement and the sale catalogue may have mislead consumers, and the proposed corrective advertising was to the same general effect. The letter of 2 May 2008 then went on to point out, correctly, in the light of my ultimate conclusions, that it was unlikely in any event that the Court would impose injunctive relief of indefinite duration, corrective advertising or detailed third party supervision of its trade practices compliance program in the particular circumstances. It made no offer for costs towards the ACCC's costs. Apart from the undertaking, and importantly, it proposed the proceeding be dismissed with no order as to costs. That is, there would have been no public adjudication as to the lawfulness of the conduct alleged, and at least ostensibly the ACCC would have been seen not to have pursued the proceeding.


case_text: my view, the response of the ACCC, by letter of 23 May 2008, did not constitute "an imprudent refusal of an offer to compromise" as discussed by Sheppard J in Colgate-Palmolive Company v Cussons Pty Ltd [1993] FCA 536 ; (1993) 46 FCR 225 at 233-4, where his Honour was discussing circumstances in which an award of indemnity costs might be made. Nor was it unreasonable for the ACCC to have rejected that proposal. Harris Scarfe had not acknowledged any contravention of ss 52 or 53(e) of the TP Act, so the question whether that sort of conduct in advertising might infringe those provisions was left unanswered. For reasons already given, it was not unreasonable for the ACCC to seek a court determination of any contravention of the TP Act, rather than acceptance of a further undertaking under s 87B. The terms of the proposed undertaking and of the corrective advertising were general. The proffered undertaking did not set out with any specificity why the ACCC alleged that ss 52 and 53(e) were contravened by the television advertisement or the catalogue. The proposed corrective advertisement was a little more precise, but still did not clearly convey the nature of the allegations. And, as noted, those documents contained no acceptance that the television advertisement and the catalogue were in fact misleading or deceptive. In addition, the related recitals were emphatic as to Harris Scarfe's conscientious attempts to comply with the TP Act and its cooperation with the ACCC. It may be that the ACCC would have entered into discussions on those issues if, in principle, that form of resolution of the dispute were acceptable. In that event, it would have been remiss of the ACCC not to have furthered discussion as to the contents of those documents. But, because I consider it acted reasonably in declining to pursue resolution of the dispute by a further s 87B undertaking, I do not regard it as having acted unreasonably by simply rejecting the overall proposal. Moreover, the letter of 2 May 2008 made no offer for costs of the proceeding to that date. For those reasons, I do not consider the letter of 2 May 2008, or the ACCC response to it, provides any reason to depart from the general approach to costs which I have referred to above. Senior counsel criticised the ACCC for not responding to the letter of 2 May 2008 earlier than 23 May 2008. Its then response was, in my view, sufficiently timely. First, the offer made by the letter of 2 May 2008 was expressed to be open until 23 May 2008. Secondly, as Harris Scarfe's witness statements were due to be served on 7 May 2008, it was reasonable for the ACCC to await their receipt and to consider them before responding to the letter of 2 May 2008. In fact, they were not served until 16 May 2008. Moreover, it was a complex proposal, and it is not clear the extent to which its terms in the circumstances required the attention of the ACCC itself, rather than of its officers. In any event, it appeared to that point that the parties were simply stalemated: the Harris Scarfe proposal was, in my view, expressed in a way which invited its acceptance or rejection, and involved the dismissal of the proceeding with no order as to costs. The ACCC response indicated that the ACCC assessed its prospects of success in the proceeding differently, it rejected the proposal. It required a Court order in resolution of the issues. It indicated that, if Harris Scarfe proposed to make any further offer to resolve the proceeding, it would have to cover a specified series of topics of relief. It invited any such proposal by 29 May 2008.


case_text: unless the ACCC were confident that a satisfactory negotiated outcome could have been reached, the hearing may have needed to have been adjourned for discussions with the risk that it would not be resumed in a satisfactory time frame. Allied with that consideration is that, as is customary, in any event any proposed consent orders (once negotiated) would have required the presentation to the Court of an agreed statement of facts (or admissions by Harris Scarfe) and submissions to satisfy the Court that the proposed orders should be made: see Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48 ; (1980) 148 CLR 150. It is not at all clear that, ultimately, there would have been any costs savings to either party by them adopting the course of further discussions and then, assuming agreement, of seeking consent orders, having regard to the timing of the letter of 29 May 2008 in relation to the hearing which took place on 2 and 3 June 2008. It is apparent from the above that I do not accept that the terms of the letter of 29 May 2009 proposed declaratory relief in essentially the same terms as the declaration which was made. The relevant part of the proposal was that the catalogue was misleading and deceptive because it contained statements that Harris Scarfe was offering for sale certain categories of goods at specified discounts whilst depicting, adjacent to the statements, other goods (not the subject of such discounts), being the goods set out in the table annexed to the orders made in the primary judgment. The declaration made relevantly reads that the catalogue was misleading and deceptive because it contained representations that Harris Scarfe was offering for sale the goods set out in the table annexed to the orders made in the primary judgment at the specified percentage discounts off the regular prices when, contrary to such representations, those goods were not discounted at all or not discounted by the specified percentage.


case_text: the letter of 29 May 2008 dealt with the question of costs in a general way only by offering to make "an appropriate contribution to the ACCC's costs to date", it probably does not fall strictly within the description of a "Calderbank offer": cf Smallacombe v Lockyer Investment Co Pty Ltd (1993) 42 FCR 97 ; Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602. It was not an offer which, in its terms, was capable of acceptance so as to give rise to an enforceable agreement.


case_title: Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602


case_text: In Australian Broadcasting Tribunal v Bond [1990] HCA 45 ; (1990) 170 CLR 306 (" Bond "), Mason CJ noted that there was no definition in the ADJR Act of the central term "decision". The Chief Justice (with whom Brennan and Deane JJ agreed) said (at 337): That answer is that a reviewable "decision" is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in the course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment. Another essential quality of a reviewable decision is that it be a substantive determination. 94 It is clear from what follows in the reasons of the Chief Justice that he used the term "substantive determination" to distinguish such a determination from a procedural determination. The Chief Justice also said that, having regard to the context, the reference in s 3(2)(g) to "doing or refusing to do any other act or thing" should be read as a reference to the exercise or refusal to exercise a substantive power. 95 In Edelsten v Health Insurance Commission (1990) 27 FCR 56, Northrop and Lockhart JJ referred to the reasons of Mason CJ in Bond and said (at 68): Bond is authority for the principle that generally, for a decision to be reviewable under the Judicial Review Act it must have a quality of finality, not being merely a step taken on the way to the possible making of an ultimate decision; it must have the essential quality of being substantive as distinct from a procedural determination. The rationale underlying Bond is that Parliament could not have intended the Judicial Review Act to be a vehicle for judicial review of every decision of a decision-maker under a Commonwealth enactment. Some decisions will have a real impact upon a person's rights, privileges or obligations; some will have no such impact, while others are mere stepping stones which may lead ultimately to the making of a decision which does affect the person's position. 108 The relationship between s 5(1)(h) and s 5(3) has been the subject of a good deal of debate in the authorities: Bond at 355-358 per Mason CJ; Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222 (" Rajamanikkam "); SGFB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 422 (" SGFB ") at [17]-[21] per von Doussa, O'Loughlin and Selway JJ; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Applicants S134/2002 [2003] HCA 1 ; (2002) 211 CLR 441 at 458 [35] - [36] per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ. Rajamanikkam and SGFB dealt with provisions in the then Migration Act 1958 (Cth) which were in similar terms to s 5(1)(h) and s 5(3) of the ADJR Act and, in Rajamanikkam , the Justices made it clear that their analysis also applied to the ADJR Act provisions: at 226 [1], 234 [32]-[34] per Gleeson CJ at 240 [54] per Gaudron and McHugh JJ and at 244 [74] and 255 [110] per Kirby J. An important question debated in those authorities is whether the ground in s 5(1)(h) is made out if one of the matters in s 5(3) is established, or the ground in s 5(1)(h) is made out only if there was no evidence or other material to justify the making of the decision and one of the matters in s 5(3) is established.


case_text: For the purposes of subsection (2), the applicant must establish that the client "knowingly and voluntarily disclosed to another person the substance of the evidence and the disclosure was not made [in one of the four specified circumstances]". None of the specified circumstances obtain. Moreover, it is clear that there was disclosure "to another person" (the applicant himself) of the entirety of the evidence, such that no question as to what amounts to "the substance of the evidence" arises. The point turned upon whether the disclosure was made "knowingly and voluntarily". The relationship between mistaken or inadvertent disclosure and voluntary disclosure cannot be expressed definitively. It has been held that disclosure by mistake is not, for that reason alone, involuntary, at least where the disclosure is made in the course of formal discovery: Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 145 ALR 391 at 406 per Goldberg J. The relevant disclosure in the present case occurred when written submissions were served upon the applicant by the respondents. In fact, in the formal discovery process, that is, when the respondents' list of documents was filed, privilege was claimed over those parts of the memorandum dealing with the legal advice from the AGS. Even if some mistaken disclosures can nonetheless be made knowingly and voluntarily within the meaning of subsection (2), I was not satisfied that there was such a disclosure in this case. This is a case "where everything indicates an intention to claim privilege in respect of the document and what has gone wrong is attributable to sheer inadvertence or carelessness": Sovereign at [23] per Austin J; see also BT Australasia Pty Ltd v New South Wales (No 8) (1998) 154 ALR 202 at 208-209 per Sackville J. In Sovereign , Austin J placed weight upon the fact that the solicitor in receipt of the privileged letter mistakenly disclosed must have realised that it was privileged. That is equally true in the present case in light of the respondents' solicitors' letter to the applicant of 7 February 2007 which asserted the privilege. Moreover, the written submissions (to which the unedited copy of the memorandum was attached) referred to the memorandum as "document 49 in the List of Documents", in respect of which privilege was claimed, and claimed to the knowledge of the applicant. This fact militates against the view that the respondents intended to change their position in respect of the privilege and that it was voluntarily waived when the written submissions were served.


case_text: The starting point is the Evidence Act 1995 (Cth) ("Evidence Act"), the provisions of which, at least insofar as legal professional privilege (or, more accurately, "client legal privilege") is concerned, apply where, as here, evidence is sought to be adduced. The respondents did not address directly the operation of the Evidence Act and I was taken, in argument, to cases where the common law was the applicable law either because of the jurisdiction or because of the pre-trial (discovery and production) context in which the issue of privilege arose ( Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1; Bennett v Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101; Secretary to the Department of Justice v Osland [2007] VSCA 96 ; GT Corporation Pty Ltd v Amare Safety Pty Ltd [2007] VSC 123). Whatever assistance I may derive from those cases, it is clear that my starting point must be the provisions of the Evidence Act . Equally, the applicant did not articulate precisely the legal basis for his submission that the privilege had been waived, although I understood his submission to be based upon the disclosure to him of the unedited copy of the memorandum by the respondents' solicitors.


case_text: Secondly, counsel for the respondents referred to Buonopane v Secretary of the Department of Employment, Education and Youth Affairs (1998) 87 FCR 173 and submitted that this case was authority for the proposition that a decision to charge an officer under s 61(2) of the PSA is not subject to the rules of natural justice. The respondents referred to the remarks of Sundberg J (at 184-185): The scheme established by the subdivision discloses that Parliament has adverted to the procedural fairness required at each stage of the disciplinary process. At the appeal stage there is to be a formal hearing. At the suspension stage the officer is to be given an opportunity to be heard unless particular circumstances exist which make it inappropriate. At the inquiry stage, a formal hearing is not required, but the officer has to be told of the misconduct the subject of the charges and given an opportunity to make a statement in relation to the misconduct. The contrast between this stage (s 62(3) and (4)) and the s 61(2) stage is eloquent. The limited right conferred on the officer under s 61 is to have a copy of the charge furnished to the person specified in subs (3). To import into s 61(2) one of the procedural steps required at the s 62 stage would be to alter the carefully crafted scheme devised by Parliament. This is not a case where Parliament is silent on procedural fairness. It has specified the stages at which fairness is required and the content of that fairness. The intention is manifest that at the earliest stage the officer is not to have the opportunity to make representations as to why charges should not be made against him. ... I will return to the question whether the Court should supplement the statutory scheme after considering the complaint that the applicant had not been afforded procedural fairness at the inquiry stage. 98 His Honour later concluded that it would not be appropriate to supplement the statutory scheme (at 186). 99 In my respectful opinion, his Honour's conclusions are correct and should be followed. 100 In my opinion, the first decision identified by the applicant was not a decision to which the ADJR Act applied. The third respondent formed an opinion that the applicant may have failed to fulfil his duty as an officer and conveyed that opinion to the first respondent. That is not the making of a decision within s 3(2) or (3) of the ADJR Act . Nor is it a decision as that concept has been explained in the authorities. It is not final or operative and determinative. It is a matter the relevant Secretary or his delegate takes into account in deciding whether to take one or other of the courses of action referred to in s 63B(c) or (d). 101 In my opinion, although the matter is not entirely clear, the second decision identified by the applicant was a decision to which the ADJR Act applied. Suspension has an immediate impact in that an officer is precluded from performing his ordinary duties. Parliament has seen fit to confer an opportunity to be heard, albeit, one capable of being defeated in certain circumstances, before a decision to suspend is made. Furthermore, in the case of an officer who has been charged previously with misconduct, suspension operates to bring the payment of the officer's salary to an end. All these considerations suggest an act in relation to a substantive matter and one which is final or operative and determinative and therefore a decision. It is true that s 63B also applied where an officer is first suspended and later charged (in fact that was the case here) and that in such a case, it is the act of charging that brings the payment of the officer's salary to an end. In that case it might be said that both the act of suspension and charging are decisions or at least the act of charging is a decision. I incline to the view that whatever the sequence of events, as a matter of substance the act of suspension is a decision within the ADJR Act and the act of charging is not. The act of charging involves no final conclusions of fact and an inquiry at which the officer concerned has a right to be heard as defined in s 62(3), must be held without undue delay. However, I do not need to decide the point because even treating both the act of suspension and the act of charging as decisions there is simply no ground upon which to impugn either decision. 102 In order to deal with all the issues canvassed before me I will assume (contrary to my earlier conclusion) that the third respondent's forming of an opinion and the conveying of that opinion to the first respondent was a decision to which the ADJR Act applied. 103 The first ground of challenge to the first decision is that there was a breach of the rules of natural justice in that the applicant was not given notice of the allegations against him, he was not given a reasonable opportunity to respond to them, he was not given an opportunity to be represented at the meeting held on 4 June 1997 and he was not given prior warning that his use of the ATO computer facility was, or may be, inappropriate. It is also alleged that the third respondent should have disqualified himself. 104 In my opinion, the answer to this ground of challenge is that the rules of natural justice did not apply to the first decision. They did apply to the second decision to the extent provided by s 63(1C) of the PSA. In my opinion, Parliament has made clear the extent to which the rules of natural justice apply to the decision to suspend. The first decision is no more than one element or aspect of that decision. For reasons I will give, the challenge to the second decision on the ground of a breach of the rules of natural justice fails. I reject the submission that the third respondent was bound to disqualify himself because of the legal proceedings issued against him. 105 The second ground of challenge to the first decision is that it involved an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made. The particulars of this ground of challenge are that (so it was said by the applicant) the third respondent took into account irrelevant considerations, namely, that the applicant had commenced criminal and civil proceedings against him, that he wished to remove the applicant from his place of employment and that he wished the applicant to have no entitlement to salary payments while conducting legal proceedings against him. This ground of challenge fails. For reasons I have already given, I am not satisfied that the fact that the applicant had commenced criminal and civil proceedings against the third respondent played any part in the opinion formed by the third respondent under s 63B of the PSA. I am not satisfied on the evidence that the third respondent wished to remove the applicant from his place of employment or that he wished the applicant to have no entitlement to salary payments while conducting legal proceedings against him. 106 The third ground of challenge to the first decision is that there was no evidence or other material to justify the making of the decision. The particulars of this ground are as follows: A. The evidence relied upon by the third respondent was such that he could not have been reasonably satisfied that the applicant may have failed to fulfil his duty as an officer (i) the applicant's use of the ATO computer facilities was at all times consistent with the manner in which the applicant had been performing his duty since he commenced work with the ATO in 1987 and was in accordance with the requirements of his duties. That use was also consistent with the manner in which other officers of the Service working in the ATO performed their duties. 107 The relevant ground is s 5(1)(h) of the ADJR Act and it provides a ground of review that: there was no evidence or other material to justify the making of the decision. Section 5(3) of the ADJR Act provides as follows: The ground specified in paragraph 1(h) shall not be taken to be made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.


case_title: Carnell v Mann (1998) 89 FCR 247

case_text: It is unclear on the authorities whether subsections (2) and (4) have exclusive spheres of operation, or whether they overlap to some degree. On one view, subsection (2) applies when the disclosure is made by the client (including the client's solicitor: s 117(1)(b)) and subsection (4) applies when the disclosure is made by some other person. This interpretation has its genesis in Telstra Corp Ltd v Australis Media Holdings Pty Ltd (1997) 41 NSWLR 346 at 350-351 per McClelland CJ in Eq and was described by the Full Court of this Court as "cogent and persuasive": Carnell v Mann (1998) 89 FCR 247 at 261 per Higgins, Lehane and Weinberg JJ. Carnell v Mann was overruled by the High Court (on a different point) ( Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1) so the Full Court's decision is not binding on me, although it is a persuasive authority (see also J D Heydon Cross on Evidence (7 th Australian ed, 2004) [25300] 838-839). An alternative view is that the subsections operate together, the relevant distinction between the two being knowing and voluntary disclosure (subsection (2)) as opposed to express or implied consent to the disclosure (subsection (4)): see S Odgers Uniform Evidence Law (6 th ed, 2004) [1.3.11100] 474-475. In Sovereign Motor Inns Pty Ltd v Bevillesta [2000] NSWSC 521 , Austin J expressly doubted the interpretation according each subsection an exclusive sphere of operation, but left open the question because his Honour had not had the benefit of argument on the point. I am in a similar position in the present case. Given the doubt attending the question, it would not be appropriate to attempt to resolve the conflicting views without the benefit of full argument where the resolution is unnecessary to the decision. In my opinion, the applicant was unable to establish waiver under either subsection and I was content to proceed on the assumption, without deciding the point, that the applicant may rely prima facie on either subsection.


case_title: Dunstan v Farr (1999) 60 ALD 192

case_text: The applicant's dispute with the ATO, its officers and others has a long history. A good deal of the history is summarised in other judgments of this Court and I refer in particular to Dunstan v Farr (1999) 60 ALD 192; Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885. 96 These are the general principles to which I was referred. Counsel for the respondents also referred to two authorities which discussed the provisions in the PSA which provisions I must consider. First, he referred to an earlier case involving the applicant, Dunstan v Farr (1999) 60 ALD 192, and a decision said to have been made on 7 July 1999 and submitted that it was authority for the proposition that a decision to suspend an officer under s 63B of the PSA was not a decision to which the ADJR Act applied. He referred to the reasons of Weinberg J and particularly what his Honour said at 199 [41]. It is true that a decision in issue in that case was a decision to suspend from duty and an invitation to make submissions as to a hardship payment. However, the focus of the case was the hardship payment of salary and the decision to suspend from duty does not appear so far as I can tell from the report to have been an issue. Weinberg J did not elaborate on his conclusion that the decision "plainly" lacked the characteristics of a decision which may be the subject of a review under the ADJR Act . In the circumstances, I would not treat the decision as authority for the proposition that a decision to suspend from duty under s 63B of the PSA is not a reviewable decision under the ADJR Act .


case_text: The applicant's dispute with the ATO, its officers and others has a long history. A good deal of the history is summarised in other judgments of this Court and I refer in particular to Dunstan v Farr (1999) 60 ALD 192; Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885.


case_text: In Edelsten v Health Insurance Commission (1990) 27 FCR 56, Northrop and Lockhart JJ referred to the reasons of Mason CJ in Bond and said (at 68): Bond is authority for the principle that generally, for a decision to be reviewable under the Judicial Review Act it must have a quality of finality, not being merely a step taken on the way to the possible making of an ultimate decision; it must have the essential quality of being substantive as distinct from a procedural determination. The rationale underlying Bond is that Parliament could not have intended the Judicial Review Act to be a vehicle for judicial review of every decision of a decision-maker under a Commonwealth enactment. Some decisions will have a real impact upon a person's rights, privileges or obligations; some will have no such impact, while others are mere stepping stones which may lead ultimately to the making of a decision which does affect the person's position.


case_title: GT Corporation Pty Ltd v Amare Safety Pty Ltd [2007] VSC 123


case_text: The starting point is the Evidence Act 1995 (Cth) ("Evidence Act"), the provisions of which, at least insofar as legal professional privilege (or, more accurately, "client legal privilege") is concerned, apply where, as here, evidence is sought to be adduced. The respondents did not address directly the operation of the Evidence Act and I was taken, in argument, to cases where the common law was the applicable law either because of the jurisdiction or because of the pre-trial (discovery and production) context in which the issue of privilege arose ( Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1; Bennett v Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101; Secretary to the Department of Justice v Osland [2007] VSCA 96 ; GT Corporation Pty Ltd v Amare Safety Pty Ltd [2007] VSC 123). Whatever assistance I may derive from those cases, it is clear that my starting point must be the provisions of the Evidence Act . Equally, the applicant did not articulate precisely the legal basis for his submission that the privilege had been waived, although I understood his submission to be based upon the disclosure to him of the unedited copy of the memorandum by the respondents' solicitors. 144 It is unclear on the authorities whether subsections (2) and (4) have exclusive spheres of operation, or whether they overlap to some degree. On one view, subsection (2) applies when the disclosure is made by the client (including the client's solicitor: s 117(1)(b)) and subsection (4) applies when the disclosure is made by some other person. This interpretation has its genesis in Telstra Corp Ltd v Australis Media Holdings Pty Ltd (1997) 41 NSWLR 346 at 350-351 per McClelland CJ in Eq and was described by the Full Court of this Court as "cogent and persuasive": Carnell v Mann (1998) 89 FCR 247 at 261 per Higgins, Lehane and Weinberg JJ. Carnell v Mann was overruled by the High Court (on a different point) ( Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1) so the Full Court's decision is not binding on me, although it is a persuasive authority (see also J D Heydon Cross on Evidence (7 th Australian ed, 2004) [25300] 838-839). An alternative view is that the subsections operate together, the relevant distinction between the two being knowing and voluntary disclosure (subsection (2)) as opposed to express or implied consent to the disclosure (subsection (4)): see S Odgers Uniform Evidence Law (6 th ed, 2004) [1.3.11100] 474-475. In Sovereign Motor Inns Pty Ltd v Bevillesta [2000] NSWSC 521 , Austin J expressly doubted the interpretation according each subsection an exclusive sphere of operation, but left open the question because his Honour had not had the benefit of argument on the point. I am in a similar position in the present case. Given the doubt attending the question, it would not be appropriate to attempt to resolve the conflicting views without the benefit of full argument where the resolution is unnecessary to the decision. In my opinion, the applicant was unable to establish waiver under either subsection and I was content to proceed on the assumption, without deciding the point, that the applicant may rely prima facie on either subsection. 147 Waiver of privilege at common law, which is brought about by "the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and the maintenance of the confidentiality" ( Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at [29] per Gleeson CJ, Gaudron, Gummow and Callinan JJ) is described as an "imputed waiver" because it does not depend upon the subjective intentions of the client. Subsection (4) is not satisfied by imputed consent of this species: Sovereign at [28] per Austin J. It is not necessary for the purpose of subsection (4) to consider the common law test and I conclude that subsection (4) is not made out. The common law test is, however, relevant to a consideration of subsection (1) to which I now turn.