case_text: The case turned on whether the respondent's use of the S-shaped fence dropper was use as a trade mark. Greenwood J held it was not. His Honour said at [60]-[62]: ... has the respondent used, as a trade mark, the three dimensional sign in relation to goods by importation, sale and promotion of articles, embodying the shape, to distinguish those goods in the course of trade from the goods of others? The answer to that question requires examination of the purpose and nature of the impugned use, the relevant context, the way the trade mark has been adopted or applied in relation to goods and the use of brochures, catalogues and advertisements (Johnson & Johnson v Sterling at 347). A part of that contextual analysis involves an assessment of whether use of the trade mark might be illustrative or descriptive of the goods rather than use as a trade mark. In that context, the extent to which a three dimensional shape for the goods or a part of the goods serves function is an important element in the determination of whether use is distinctive of commercial origin or illustrative or descriptive of the embodied shape of the goods. Use of the trade mark must be demonstrated to be use that serves the primary function of a trade mark (Johnson & Johnson v Sterling at 348 and 349; Christodolou v Disney Enterprises Inc [2005] FCA 1401 ; (2005) 66 IPR 595). A word trade mark that contains a descriptive element may nevertheless still serve as a badge of origin as language does not necessarily convey only one idea (Johnson & Johnson v Sterling) although the descriptive element may make it difficult to demonstrate that the words serve the primary function of distinguishing the goods. (Wellness Pty Ltd v Pro-Bio Living Waters Pty Ltd (2004) 61 IPR 242 per Bennett J [29]). ... Where the trade mark comprises a shape which is demonstrated to involve a substantial functional element in the goods, references to the shape are almost certainly references to the nature of the goods themselves rather than use of the shape as a trade mark.


case_outcome: applied

case_text: In Australian Woollen Mills Ltd v FS Walton & Co Ltd [1937] HCA 51 ; (1937) 58 CLR 641 at 658 ( Woollen Mills ) Dixon and McTiernan JJ said: An attempt should be made to estimate the effect or impression produced on the mind of potential customers by the mark or device for which the protection of an injunction is sought. The impression or recollection which is carried away and retained is necessarily the basis of any mistaken belief that the challenged mark or device is the same. 86 Customers are not to be credited with any "high perception or habitual caution". On the other hand, "exceptional carelessness or stupidity may be disregarded": Woollen Mills at 658. 87 In Shell at 410 Windeyer J said that deceptive similarity must be considered against the "background of the usages in the particular trade". In Woollen Mills at 658 Dixon and McTiernan JJ said: The usual manner in which ordinary people behave must be the test of what confusion or deception may be expected .... The course of business and the way in which the particular class of goods are sold gives, it may be said, the setting, and the habits and observation of men considered in the mass affords the standard. Evidence of actual cases of deception, if forthcoming, is of great weight. See also Crazy Ron's Communications Pty Ltd v Mobileworld Communications Pty Ltd [2004] FCAFC 196 at [75] ( Crazy Ron's ).


case_title: Crazy Ron's Communications Pty Limited v Mobileworld Communications Pty Ltd [2004] FCAFC 196

case_text: In Shell at 410 Windeyer J said that deceptive similarity must be considered against the "background of the usages in the particular trade". In Woollen Mills at 658 Dixon and McTiernan JJ said: The usual manner in which ordinary people behave must be the test of what confusion or deception may be expected .... The course of business and the way in which the particular class of goods are sold gives, it may be said, the setting, and the habits and observation of men considered in the mass affords the standard. Evidence of actual cases of deception, if forthcoming, is of great weight. See also Crazy Ron's Communications Pty Ltd v Mobileworld Communications Pty Ltd [2004] FCAFC 196 at [75] ( Crazy Ron's ). 90 In Crazy Ron's at [79] the Full Court said: If a registered trade mark includes words which can be regarded as an essential feature of the mark, another mark that incorporates those words may well infringe the registered trade mark. The other mark may also infringe if there is a tangible danger of deception or confusion by reason of consumers retaining an imperfect recollection of the words constituting an essential feature of the registered mark. 97 Third, YD's shoes are labelled YD on the inside sole. In cases where an additional feature is added to an alleged infringing mark, the feature can affect the overall impression and provide a "significant" point of dissimilarity: cf Crazy Ron's at [97]-[98]. In Aldi Stores Ltd Partnership v Frito-Lay Trading Company GmbH (2001) 54 IPR 344 ( Aldi Stores ) Lindgren and Hill JJ held that the registered mark TWISTIES was not infringed by the words CHEESY TWISTS, as the dual mark was visually different from the registered mark. The presence the YD label is akin to the distinguishing additional feature in Aldi Stores , particularly as it is the most prominent feature of YD's shoes. 99 Finally, the context is all important. In the present case the risk of confusion is mitigated by the circumstances in which the products are bought and sold: • Purchasers of the shoes in suit are metro-shoppers. They are fashion conscious and discerning in their choices. They are likely to be well informed about the products before purchasing them. The steps involved in a purchase (see [26]) constitute a relatively lengthy process in the course of which a customer will become well informed about a product before making a purchase. • Metro-shoppers review product labels. Branding, labels and logos are important features to this class of consumer. Their purchasing habits are refined, and this lessens the chance of confusion. • YD's shoes are sold only in YD stores. The stores display YD's signage, and customers are well aware that they are in a YD store when purchasing an item. • The applicants' and YD's shoes are relatively expensive items compared with impulse products such as soft drinks and confectionary: cf. All-Fect at [41]. Purchasers of shoes generally tend to be discerning in their purchasing habits. • While it is not necessary for the applicants to lead evidence of actual deception (cf Crazy Ron's at [95]), it is relevant that there was no such evidence. 133 Allsop J's decision was set aside on appeal: Crazy Ron's . However the Full Court (Moore, Sackville and Emmett JJ) approved Allsop J's treatment of the s 58 issue. Having at [47] to [48] summarized what is set out at [132] above, their Honours said at [128]: In the light of the findings made by the primary Judge, it is tolerably clear that, while the application was still on foot and at the time of grant, Crazy John Pty Ltd claimed to be, and was the owner of, the 1999 Mark. Crazy John Pty Ltd intended to use the 1999 Mark by licensing it. There was material upon which his Honour could conclude that Crazy John was the owner of the 1999 Mark and intended to authorise another member of the group to use it. The grounds of invalidity referred to in ss 58 and 59 are not made out. 134 I think I should follow Crazy Ron's . There the date at which the validity of registration was to be tested was squarely raised. The decision on this issue was based on the definition of "applicant" in s 6. The relevant date was not an issue in Lomas . The Full Court did not refer to the definition of "applicant". The question there was who was the owner at the priority date. The parties were not in dispute as to the time at which to test ownership. Nor was the proper date at which the rights of the parties were to be determined an issue in Southern Cross . Further, the Trade Marks Act 1905 contained no definition of "applicant". Kitto J's five propositions were, as his Honour said, taken from Romer J's judgment in In re Jellinek's Application (1946) 63 RPC 59 at 78. That was a decision under the Trade Marks Act 1938 (1 & 2 Geo 6 c 22), which contained no definition of "applicant".


case_outcome: referred to

case_text: The class of potential customers posited by the test is hypothetical, but "imbued with the characteristics" of an actual group of people purchasing the goods: Lahore, Patents, Trade Marks and Related Rights at 54,145; CA Henschke & Co v Rosemount Estates Pty Ltd [2000] FCA 1539 ; (2001) 52 IPR 42 at [43] ( Henschke ).


case_text: In Registrar of Trade Marks v Woolworths [1999] FCA 1020 ; (1999) 45 IPR 411 at 428 ( Woolworths Metro ) French J distilled the principles relevant to "likely to deceive or cause confusion". They include: i. To show that a trade mark is deceptively similar to another it is necessary to show a real tangible danger of deception or confusion occurring. A mere possibility is not sufficient. ii. A trade mark is likely to cause confusion if the result of its use will be that a number of persons are caused to wonder whether it might not be the case that the two products or closely related products and services come from the same source. It is enough if the ordinary person entertains a reasonable doubt ... iii. In considering whether there is a likelihood of deception or confusion all surrounding circumstances have to be taken into consideration. These include the circumstances in which the marks will be used, the circumstances in which the goods or services will be bought and sold and the character of the probable acquirers of the goods and services.


case_text: In Shell at 414, in a passage approved on appeal to the Full Court, Windeyer J said: In considering whether marks are substantially identical they should, I think, be compared side by side, their similarities and differences noted and the importance of these assessed having regard to the essential features of the registered mark and the total impression of resemblance or dissimilarity that emerges from the comparison. "The identification of an essential feature depends", it has been said, "partly on the Court's own judgment and partly on the burden of the evidence that is placed before it": de Cordova v Vick Chemical Co (1951) 68 RPC 103 , at p 106. Whether there is substantial identity is a question of fact. 77 The applicants' written submissions on substantial identity in relation to the Sole Mark were as follows: While the first respondent's shoes do not have a "D" insignia (as in the registered mark), they are otherwise covered entirely with a very similar diamond shaped pattern. It is submitted that the degree of resemblance here is still overwhelming and such that it can be judged to be "substantially identical" with the registered mark. In addition, the Photon Footwear has a blank panel in place of the "D" insignia, which makes it even closer in visual impression to the Sole Trade Mark than the Cube Footwear and the Gamon Footwear. This blank panel, moreover, is in the same position relative to the shape of the sole as is the panel with the stylised "D" in the Sole Mark. The respondents were unable to give any proper explanation about the presence of this blank panel, which it is submitted, and put to Trenear, was done to convey an impression of closeness to the Wish shoe but without the actual addition of the "D" device - Tr. 69.35. However, it is submitted that all three of the alleged infringing shoes are close enough in their use of the pattern feature on the soles to infringe the Sole Trade Mark on the basis that they are "substantially identical" with the registered mark. 78 YD contended that the stylised D on the heel was the prominent and distinctive feature of the Sole Mark. In the absence of the stylised D, it was submitted that that YD's sole patterns were not substantially identical. 91 At [84] the Court quoted with approval the following passage from the Privy Council's decision in de Cordova v Vick Chemical Co (1951) 68 RPC 103 ( de Cordova ): a mark is infringed by another trader if, even without using the whole of it upon or in connection with his goods, he uses one or more of its essential features. The identification of an essential feature depends partly on the Court's own judgment and partly on the burden of the evidence that is placed before it. 92 The essential features of the trade mark are listed at [83]. The other features are two oblique stripes on either side of the shoe, one vertical stripe on the rear, a squarish shaped toe cap, a strip flowing from the bottom of the laces to the toe cap, a facing and a padded collar.


case_text: Of the essential features, the D is the most dominant feature of the Shape Mark. Significant weight and importance have been attached to that feature: cf Melbourne Chinese Press Pty Ltd v Australian Chinese Newspapers Pty Ltd (2004) 63 IPR 38 at [18] ( Melbourne Chinese Press ) and All-Fect at [42]. 98 In my view the application to the shoes of YD's label alters the general effect of the shoes without the label: Melbourne Chinese Press at [18], Torpedoes Sportswear Pty Limited v Thorpedo Enterprises Pty Ltd [2003] FCA 901 ; (2003) 59 IPR 318 at [53] and Kowa Company Ltd v N V Organon [2005] FCA 1282 ; (2005) 66 IPR 131 , and goes a long way to prevent confusion between the marks.


case_title: Aldi Stores Ltd Partnership v. Frito-Lay Trading Company GmbH (2001) 54 IPR 344

case_text: Third, YD's shoes are labelled YD on the inside sole. In cases where an additional feature is added to an alleged infringing mark, the feature can affect the overall impression and provide a "significant" point of dissimilarity: cf Crazy Ron's at [97]-[98]. In Aldi Stores Ltd Partnership v Frito-Lay Trading Company GmbH (2001) 54 IPR 344 ( Aldi Stores ) Lindgren and Hill JJ held that the registered mark TWISTIES was not infringed by the words CHEESY TWISTS, as the dual mark was visually different from the registered mark. The presence the YD label is akin to the distinguishing additional feature in Aldi Stores , particularly as it is the most prominent feature of YD's shoes.


case_outcome: cited

case_title: Torpedoes Sportswear Pty Limited v Thorpedo Enterprises Pty Limited [2003] FCA 901 ; (2003) 59 IPR 318

case_text: In my view the application to the shoes of YD's label alters the general effect of the shoes without the label: Melbourne Chinese Press at [18], Torpedoes Sportswear Pty Limited v Thorpedo Enterprises Pty Ltd [2003] FCA 901 ; (2003) 59 IPR 318 at [53] and Kowa Company Ltd v N V Organon [2005] FCA 1282 ; (2005) 66 IPR 131 , and goes a long way to prevent confusion between the marks.


case_title: Kowa Company Ltd v N V Organon [2005] FCA 1282 ; (2005) 66 IPR 131


case_text: Global Brand Marketing Inc v Cube Footwear Pty Ltd [2005] FCA 852 was an application by the present applicants to amend the statement of claim by adding a cause of action for infringement of the Sole Mark and Shape Mark, the very marks in suit in the present case. Goldberg J said at [33]: The test [for deceptive similarity] necessarily concerns consumers' recollection of the marks in a trade context. It is by its nature therefore not a matter that can be determined at this stage. The applicant conceded that the absence of the stylised D makes its case difficult, but contended that evidence may establish that the cross hatched sole pattern is the distinctive feature of the sole mark. According to the applicant, it is therefore necessary for the Court to hear evidence of consumers' recollections and impressions of the marks and the relevant footwear, and any expert evidence as to the manner in which consumers perceive brands, before the Court is in a position to understand whether any consumers might be deceived by the infringing footwear. The shoes in question appeal to a particular group of consumers, and the Court should have evidence from the relevant consumers, presumably young people, of the fad and whether the brand is distinguished by the cross hatched sole pattern in the absence of the stylised D. 107 In allowing the amendment, his Honour made clear that evidence of consumer recollections would be important in determining whether consumers might be deceived by the alleged infringing footwear. No such evidence has been adduced by the applicants. The applicants have had since 2005 to assemble evidence of consumer recollections. In the circumstances, it is reasonable to infer that they have been unable to find such evidence. As is apparent from what I have said thus far, I have concluded that there is no deceptive similarity between YD's shoes and the applicants' marks without needing to rely on the absence of deception or confusion evidence. 108 YD's cross claim for removal of the trade marks from the Register arises under s 88 of the Act. Under sub-s (1)(b) the Court may order that the Register be rectified by "removing or amending an entry wrongly made or remaining on the Register". Sub-section (2) sets out the grounds upon which an application under sub-s (1) may be made. The only presently relevant ground is that in par (a) "any of the grounds on which the registration of the trade mark could have been opposed under Division 2 of Part 5". Division 2 of Part 5 consists of ss 57 to 62. Section 57 provides that registration of a trade mark may be opposed on any of the grounds upon which an application for registration may be rejected under Division 2 of Part 4. One of those grounds is that described in s 41, that the trade mark is not capable of distinguishing the applicant's goods or services from those of other persons. Section 58 provides that a trade mark may be opposed on the ground that the applicant is not the owner of the mark. YD relies on ss 41 and 58 for its cross claim for removal of the trade marks from the Register.


case_text: Section 41 is in part as follows: (2) An application for the registration of a trade mark must be rejected if the trade mark is not capable of distinguishing the applicant's goods or services in respect of which the trade mark is sought to be registered (designated goods or services) from the goods or services of other persons. (3) In deciding the question whether or not a trade mark is capable of distinguishing the designated goods or services from the goods or services of other persons, the Registrar must first take into account the extent to which the trade mark is inherently adapted to distinguish the designated goods or services from the goods or services of other persons. Where the Registrar is "still unable" to decide the question posed by sub-s (3), sub-ss (5) and (6) apply: sub-s (4). The cascading effect of s 41's provisions is helpfully described by Branson J in Blount Inc v Registrar of Trade Marks [1998] FCA 440 ; (1998) 40 IPR 498 at 504-505 ( Blount ). Sub-sections (4) to (6) are not material to the present case, because the marks were accepted for registration without opposition as possessing sufficient inherent distinctiveness as required by s 41(3). The Registrar saw no reason to engage in the further enquiries indicated in sub-ss (5) and (6), and did not seek any evidence as to use. 110 Section 41 as a whole has changed the law relating to distinctiveness by extending the class of marks capable of being registered. Nevertheless, the law that developed under the distinctiveness provision in the earlier legislation (s 26 of the Trade Marks Act 1955) is applicable to s 41(2) and (3). See MID Sydney Pty Ltd v Australian Tourism Co Ltd (1998) 41 IPR 561 at 572 and Blount at 504.


case_text: In Clark Equipment Co v Registrar of Trade Marks [1964] HCA 55 ; (1964) 111 CLR 511 at 513-514 ( Clark ) Kitto J said: That ultimate question must not be misunderstood. It is not whether the mark will be adapted to distinguish the registered owner's goods if it be registered and other persons consequently find themselves precluded from using it. The question is whether the mark, considered quite apart from the effects of registration, is such that by its use the applicant is likely to attain his object of thereby distinguishing his goods from the goods of others. ... the question whether a mark is adapted to distinguish [is to] be tested by reference to the likelihood that other persons, trading in goods of the relevant kind and being actuated only by proper motives - in the exercise, that is to say, of the common right of the public to make honest use of words forming part of the common heritage, for the sake of the signification which they ordinarily possess - will think of the word and want to use it in connexion with similar goods in any manner which would infringe a registered trade mark granted in respect of it. 112 Clark was a word case, but Kitto J's observations have been applied to signs other than words, including shapes and aspects of packages: Kenman Kandy . In that case at [144] to [145] Stone J said (omitting citations): The authorities give very little guidance as to what is necessary for inherent adaption either generally or with respect to shapes. It is clear that words (ordinary or technical) which are descriptive of the character or quality of the goods are not inherently adapted to distinguish .... It is also well established that the name of a geographical location is not inherently adapted to distinguish goods because another trader may legitimately wish to use the name in connection with goods made in or associated with that place .... ... Signs that are descriptive of the character or quality of the relevant goods or which use a geographical name in connection with them cannot be inherently distinctive because the words have significations or associations that invite confusion and because registration of a trade mark using such words would preclude the use by others whose goods have similar qualities or which have a connection with the relevant areas. After referring to Kitto J's judgment in Clark , Stone J continued at [147]: In my opinion it is the absence of these associations and significations that makes a sign inherently adapted to distinguish one trader's goods from those of another. In other words the concept is negative not positive ... ... It is the absence of association and signification that accounts for invented words often being found to be inherently adapted to distinguish a trader's product .... 114 YD's submissions on s 41(3) were brief, namely that the shape and configuration of a shoe is largely dictated by functional considerations, most notably that the shoe, including the sole, must fit the foot of a human being. It was said that largely because of this, all shoes have a commonality of shapes and features. Because of this, and applying the Clark test, s 41(3) has not been satisfied. 115 YD's submission at [114] does not reflect that the mark is not for a general shape but for a particular combination of features stylised D on rear and outer side, shoe shape as depicted in representations, cross-hatched sole pattern with rectangle containing stylised letter D, two oblique stripes on sides and one vertical stripe on rear. 116 The answer to the question posed by the Clark formulation is first, that the particular combination of features is such that by its use Diesel is likely to attain the object of thereby distinguishing its Trainers from those of others, and second, that other traders in Trainers would not reasonably want to use the combination. There would be no occasion for a competitor to adopt the features other than the shape, especially as some of them are Diesel-related. The stylised D is of the greatest import. It is particularly prominent. It is mentioned three times in the endorsement on the Shape Mark. In my view, it is the combination of this feature and the other essential features identified at [83] that give the Shape Mark the status of inherent distinctiveness to satisfy s 41(3). 117 Diesel does not claim a sole as such. Rather the claim is to a diamond shaped pattern with a panel containing a stylised D. That combination is such that by its use Diesel is likely to attain the object of distinguishing its Trainers from those of others. In addition, other traders in Trainers would not reasonably want to apply the sole mark to their own goods, especially as it incorporates Diesel's D. 118 YD's cross claim based on s 41 fails.


case_text: The applicants do not dispute par (a) in [121]. In Shell Co (Aust) Ltd v Rohm and Haas Co [1948] HCA 27 ; (1948) 78 CLR 601 at 625 and 627 Dixon J said: Before the passing of the Trade Marks Registration Act 1875 ... of the United Kingdom property in a trade mark was acquired by user. If a trader had habitually employed a mark in connection with his goods so that to the public it had come to denote or distinguish his goods, he was entitled to legal and equitable remedies to protect him against the use by rival traders of the same or similar marks .... ... ... an application to register a trade mark so far unused must, equally with a trade mark the title to which depends on prior user, be founded on proprietorship. The basis of a claim to proprietorship in a trade mark so far unused has been found in the combined effect of authorship of the mark, the intention to use it upon or in connection with the goods and the applying for registration. See also Aston v Harlee Manufacturing Co [1960] HCA 47 ; (1960) 103 CLR 391 at 398-399 and Shanahan's Australian Law of Trade Marks and Passing Off 3 rd ed (2003) 51-52. 131 Paragraph (k) assumes that ownership is to be tested as at the date of filing an application for registration. YD relied on the dictum of Kitto J in Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592 at 595 that in "applications for registration, the rights of the parties are to be determined as at the date of the application". In Lomas v Winton Shire Council [2002] FCAFC 413 ; [2003] AIPC 91-839 at [37] - [38] , the Full Court said: The basis of any claim to ownership of a trade mark so far unused is to be found in the combined effect of authorship of the mark, the intention to use it upon or in connection with goods or services and applying for registration of the mark - Shell Company of Australia Ltd v Rohm and Haas Company & Anor [1948] HCA 27 ; (1949) 78 CLR 601 at 627 .... Authorship in that sense involves the origination or first adoption of the word as and for a trade mark - Aston v Harlee Manufacturing Company [1960] HCA 47 ; (1960) 103 CLR 391 at 399. Thus, if the Trade Mark had not been used prior to the Priority Date in connection with the goods and services specified in the Application, Ms Lomas should be treated as the owner of the Trade Mark. On the other hand, if Winton is able to establish that, as at the Priority Date, it was the owner of the Trade Mark and not Ms Lomas, the opposition based on s 58 would succeed.


case_title: Aston v Harlee Manufacturing Co [1960] HCA 47 ; (1960) 103 CLR 391


case_text: Paragraph (k) assumes that ownership is to be tested as at the date of filing an application for registration. YD relied on the dictum of Kitto J in Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592 at 595 that in "applications for registration, the rights of the parties are to be determined as at the date of the application". In Lomas v Winton Shire Council [2002] FCAFC 413 ; [2003] AIPC 91-839 at [37] - [38] , the Full Court said: The basis of any claim to ownership of a trade mark so far unused is to be found in the combined effect of authorship of the mark, the intention to use it upon or in connection with goods or services and applying for registration of the mark - Shell Company of Australia Ltd v Rohm and Haas Company & Anor [1948] HCA 27 ; (1949) 78 CLR 601 at 627 .... Authorship in that sense involves the origination or first adoption of the word as and for a trade mark - Aston v Harlee Manufacturing Company [1960] HCA 47 ; (1960) 103 CLR 391 at 399. Thus, if the Trade Mark had not been used prior to the Priority Date in connection with the goods and services specified in the Application, Ms Lomas should be treated as the owner of the Trade Mark. On the other hand, if Winton is able to establish that, as at the Priority Date, it was the owner of the Trade Mark and not Ms Lomas, the opposition based on s 58 would succeed. 134 I think I should follow Crazy Ron's . There the date at which the validity of registration was to be tested was squarely raised. The decision on this issue was based on the definition of "applicant" in s 6. The relevant date was not an issue in Lomas . The Full Court did not refer to the definition of "applicant". The question there was who was the owner at the priority date. The parties were not in dispute as to the time at which to test ownership. Nor was the proper date at which the rights of the parties were to be determined an issue in Southern Cross . Further, the Trade Marks Act 1905 contained no definition of "applicant". Kitto J's five propositions were, as his Honour said, taken from Romer J's judgment in In re Jellinek's Application (1946) 63 RPC 59 at 78. That was a decision under the Trade Marks Act 1938 (1 & 2 Geo 6 c 22), which contained no definition of "applicant".


case_title: Lomas v Winton Shire Council [2002] FCAFC 413 ; [2003] AIPC 91-839


case_text: Mr Fitzpatrick, for YD, drew my attention to Mobileworld Communications Pty Ltd v Q & Q Global Enterprise (2003) 61 IPR 98. In that case a company within the Crazy John group, Aust P/L, was originally the applicant for registration of a trademark. Before registration the application was amended to substitute a different company within the group as applicant. The respondents argued that Aust P/L was not the owner of the mark, as required by s 27(1)(a), with the result that registration could have been opposed under s 58, and that the Court had power to order rectification of the register by cancelling the registration. Allsop J rejected that contention at [83]: The ground of opposition is s 58 (see s 88(2)(a)). Bearing in mind the definition of applicant in s 6 as meaning the person in whose name the application is for the time being proceeding, the time to judge the satisfaction of s 27(1)(a) is during the application. Aust P/L initially, implicitly, claimed to be the owner, by being identified on the application form as the applicant. Later, this was changed to Crazy John Pty Ltd .... I think on the evidence that Crazy John Pty Ltd was the owner. The respondents seek to hoist the applicants upon a proposition ... that notwithstanding that Aust P/L first applied for the mark, the position should be considered as if Crazy John Pty Ltd was the original applicant. Since Crazy John Pty Ltd did not, as at 17 August 1999, claim to be the owner of the mark, but did so only later, in November, it is said s 27(1)(a) was not satisfied. I do not agree. Crazy John Pty Ltd was a person who, while the application was proceeding, claimed to be the owner and who claimed to be the owner at the time of grant. Aust Pty Ltd before then claimed to be the owner, but withdrew that claim. To make the application fail because of innocent error of the kind displayed in the evidence would impermissibly narrow the power of amendment in Part 6 of the TM Act. Crazy John Pty Ltd claimed to be the owner during the registration process. It was an applicant. Section 27(1)(a) was satisfied. 17 August 1999 was the date of Aust P/L's application for registration. It was in November 1999 that the Trade Marks Office was requested to amend the application to show Crazy John Pty Ltd as applicant.


case_text: I think I should follow Crazy Ron's . There the date at which the validity of registration was to be tested was squarely raised. The decision on this issue was based on the definition of "applicant" in s 6. The relevant date was not an issue in Lomas . The Full Court did not refer to the definition of "applicant". The question there was who was the owner at the priority date. The parties were not in dispute as to the time at which to test ownership. Nor was the proper date at which the rights of the parties were to be determined an issue in Southern Cross . Further, the Trade Marks Act 1905 contained no definition of "applicant". Kitto J's five propositions were, as his Honour said, taken from Romer J's judgment in In re Jellinek's Application (1946) 63 RPC 59 at 78. That was a decision under the Trade Marks Act 1938 (1 & 2 Geo 6 c 22), which contained no definition of "applicant".


case_text: I am satisfied that leave should be granted to raise the ground. It is based on the reasons for decision of the RRT and on the material before the FMC, does not involve the adducing of any further evidence and does not cause injustice or unfairness to the respondents. Furthermore, in view of the conclusions at which I have arrived, it is clearly in the interests of justice that the leave sought be granted: cf Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 ; (2001) 117 FCR 424 at 438 [34] - [35] per Allsop J (with whom Drummond and Mansfield JJ agreed). 6 The appellant's claim before the RRT was that she fears persecution if she returns to Turkey because she is on a PKK blacklist because of her husband's activities in the Special Forces against PKK members ('the blacklist claim'). As the RRT accepted that the appellant had a subjective fear of persecution as she claimed, it was bound to determine whether that claim fell within the Convention. One aspect of that determination was whether the subjective fear of persecution held by the appellant by reason of the blacklist claim was well founded. Another aspect was whether the fear of persecution held by the appellant was for reasons of an actual or imputed political opinion or as a member of a particular social group being that she is a person on a PKK blacklist or she is the wife of a person on a PKK blacklist. On a fair reading of the decision of the RRT, the claim considered by it was a different claim, namely whether a fear of persecution held by a member of the armed forces or as a family member of a member of the armed forces was well founded. This is apparent from the way in which the RRT expressed its decision and from the country information upon which it relied.


case_text: This case is analogous to Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 ; (2003) 197 ALR 389 (' Dranichnikov '). In that case, the applicant claimed to be a member of a social group consisting of entrepreneurs and businessmen who publicly criticised law enforcement authorities for failing to take action against crime or criminals. However, the RRT considered whether the applicant was at risk of persecution by reason of his membership of a social group consisting of businessmen in Russia. The majority in the High Court (Gummow and Callinan JJ, with whom Hayne J agreed) found at 394-5 [27] that the RRT had fallen into jurisdictional error by determining: 'whether Mr Dranichnikov's membership of a social group, namely of "businessmen in Russia" was a reason for his persecution and relevantly nothing more.' The majority held that: 'The tribunal should have decided the matter which was put to it, whether Mr Dranichnikov was a member of a social group consisting of entrepreneurs and businessmen who publicly criticised law enforcement authorities for failing to take action against crime or criminals.' Kirby J reached the same conclusion as Gummow, Callinan and Hayne JJ and observed at 407 [87]-[88]: 'Difficult as it may sometimes be to differentiate jurisdictional or non-jurisdictional error with exactitude, in a case where there has been a fundamental mistake at the threshold in expressing, and therefore considering, the legal claim propounded by an applicant, the error will be classified as an error of jurisdiction. It will be treated as a constructive failure of the decision-maker to exercise the jurisdiction and powers given to it. Obviously, it is not every mistake in understanding the facts, in applying the law or in reasoning to a conclusion that will amount to a constructive failure to exercise jurisdiction. But where, as here, the mistake is essentially definitional and amounts to a basic misunderstanding of the case brought by an applicant, the resulting flaw is so serious as to undermine the lawfulness of the decision in question in a fundamental way.' 8 The first respondent argued that there was no jurisdictional error by the RRT because the RRT determined the risk of harm to a more general social group, the armed forces, a subset of which was members of the armed forces on a PKK blacklist. However, I am satisfied that in this case, as in Dranichnikov , the RRT was required, but failed, to consider and make findings in respect of the claim made by the appellant and instead made findings in relation to a different claim which was not the claim put by the appellant. This constitutes a failure by the RRT to exercise its jurisdiction. 9 The first respondent contended in the alternative that the appellant must fail in any event because the RRT made an independent finding of adequate state protection. However, the RRT's finding of adequate state protection related to the claim with which it was dealing, namely the threat likely to be experienced by members of the Turkish armed forces and their families. As explained above, that was not the appellant's claim. The question of whether a person in the appellant's position was able to obtain adequate protection from the Turkish authorities was not addressed by the RRT. I am confirmed in that view by the fact that the RRT made no reference in its state protection finding to the claim of the appellant that the Turkish authorities stated they could only provide her with protection for three months but no longer. The failure to deal with that specific claim, which was plainly relevant to the issue of adequate state protection for the appellant or for persons in her position, supports my view that the RRT was dealing with a different claim. It follows that the appeal is to be allowed and the orders of McInnis FM are to be set aside. Orders should also be made quashing the decision of the RRT and requiring it to determine the appellant's application according to law. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel. Associate: Dated: 9 February 2006 Counsel appearing pro bono for the Appellant: R Niall and C Symons Counsel for the First Respondent: H Riley Solicitor for the First Respondent: Australian Government Solicitor Date of Hearing: 3 February 2006 Date of Judgment: 3 February 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/39.html


case_outcome: considered

case_text: The Court observes that the recognised sources of legitimate expectations have generally been restricted to material emanating from or adopted by Parliament: see for example Teoh (legitimate expectation arising from the Commonwealth Executive's ratification of an international treaty); Renton v Bradbury & Anor [2001] QSC 167 (legitimate expectation arising from rules or regulations made in the exercise of a statutory power); Century Metals and Mining NL v Yeomans and Another [1989] FCA 273 ; (1989) 40 FCR 564 (legitimate expectation arising from a public promise made by a Minister); Haoucher v Minister of State for Immigration and Ethnic Affairs [1990] HCA 22 ; (1990) 169 CLR 648 and Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 per Gummow J (legitimate expectation arising from a policy statement made by a Minister).


case_text: In considering whether it is 'in the interests of the administration of justice' to grant an extension of time to file an Application for Judicial Review, the Court is guided by the observations of Stone J in Fisher v Minister for Immigration and Citizenship and Another [2007] FCA 591 ; (2007) 162 FCR 299. In such decision at [35] her Honour said: The latter requirement [whether an extension of time is in the interests of the administration of justice] would involve consideration not only of the reasons for not meeting the original time limit but also whether the application, were the extension of time to be granted, would have any prospect of success. 23 Although Stone J's observations were made in the context of s 477(2) of the Act, which provides the criteria to be considered by the Federal Magistrates Court in determining whether it should grant an extension of time to file an application, Stone J at [47]-[48] adopted the above considerations in determining whether this Court should grant an extension of time under s 477A(2). The Court also observes that s 477A(2) of the Act is in substantially the same terms as s 477(2). Accordingly, the Court will adopt the above considerations in its determination of whether to grant an extension of time under s 477A(2) of the Act. 24 The Court notes the applicant's explanation that he attempted to file an appeal within the prescribed time but utilised the wrong form. The Court records establish that such claim is incorrect. The applicant attempted to file a Notice of Appeal on 12 September 2008, but the document was returned to him by the Court registry with the advice that the time for filing such appeal had expired and that an extension of time was required. It follows that no appeal was sought to be filed within the prescribed time limit. 25 Since the applicant lacks legal representation the Court is prepared to accept that a lack of understanding led to his failure to comply with the time constraints. Accordingly, the Court finds that the issue of delay is satisfactorily explained.


case_title: Haoucher v Minister of State for Immigration and Ethnic Affairs [1990] HCA 22 ; (1990) 169 CLR 648


case_text: The applicant also relies upon the decision of Madgwick J in Hong v Minister for Immigration & Multicultural Affairs [1999] FCA 1567 at [20] which states inter alia: Section 499(1) [of the Act] does not empower the giving of directions that would turn a discretion, touching "human fate" (to adopt a phrase used by Toohey J in Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379 at 407) into no discretion at all. It follows that there must be a genuine weighing of factors tending to opposite conclusions and no artificial limitation of such factors. 35 In answer to such submission, the Court observes that the Tribunal considered all relevant aspects of the applicant's claims, as well as the requirements of Ministerial Direction No. 21. The Court cannot discern any basis for the submission that the Tribunal was constrained so as to fetter its discretion.


case_text: For these reasons the Court is satisfied that the draft Application for Judicial Review has no prospects of success. The Court observes that the merits of the applicant's application are determinative in the Court's consideration of whether to grant an extension of time: Jeffers v R [1993] HCA 11 ; (1993) 112 ALR 85 at 86. 37 The Court is not satisfied that it is in the interests of the administration of justice to grant an extension of time under s 477A(2) of the Act. Accordingly the Court dismisses the applicant's application with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 4 November 2008 Counsel for the Applicant The Applicant appeared in person. Solicitor for Second Respondent: Clayton Utz Date of Hearing: 17 October 2008 Date of Judgment: 4 November 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1627.html


case_text: Firstly, the applicant claims that the Tribunal failed to take into account a relevant consideration, namely the recommendations contained in the Ombudsman's report. However, the Tribunal only failed to take into account a relevant consideration if it was bound to take into account such consideration: Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40 ; (1986) 162 CLR 24 at 39 per Mason J. 27 The Court observes that the Ombudsman's report is not a document required to be taken into consideration under Ministerial Direction No. 21, nor under any statutory or other provision. The Court finds that the Tribunal was not required to take the Ombudsman's report into account in making its decision.


case_title: Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193


case_text: The applicant submits that since he met the definition of a long term resident the recommendations of the Ombudsman were relevant. The applicant submits that he held a legitimate expectation that the Tribunal would consider the Ombudsman's report. The applicant relies upon the decision in Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273. 21 The applicant submits that the Tribunal ignored considerations contained within the Ombudsman's report. Specifically, the applicant submits that the Tribunal did not consider the compassionate expectations of the Australian community and that the Tribunal did not assess as a 'primary consideration' the hardship likely to be experienced by the visa holder including the implications of any serious medical condition suffered by the visa holder. 28 Secondly, the applicant relies upon the High Court's decision in Teoh in submitting that he held a legitimate expectation that the Minister, having been aware that the applicant had been in Australia for 25 years and had arrived as a child, would take into account the Ombudsman's report. 29 In Teoh the High Court determined that a delegate of the Minister had failed to give consideration to the effect of deportation upon a family, being a matter to be taken into account under the United Nations Convention on the Rights of the Child ('the Convention'). The Convention had been ratified by Australia and the Court held that the respondent had a legitimate expectation that such matter would be considered. 30 At 291 Mason CJ and Deane J rejected the submission that a convention ratified by Australia but not incorporated into Australian law could never give rise to a legitimate expectation, stating: ... ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. 31 The Court observes that the recognised sources of legitimate expectations have generally been restricted to material emanating from or adopted by Parliament: see for example Teoh (legitimate expectation arising from the Commonwealth Executive's ratification of an international treaty); Renton v Bradbury & Anor [2001] QSC 167 (legitimate expectation arising from rules or regulations made in the exercise of a statutory power); Century Metals and Mining NL v Yeomans and Another [1989] FCA 273 ; (1989) 40 FCR 564 (legitimate expectation arising from a public promise made by a Minister); Haoucher v Minister of State for Immigration and Ethnic Affairs [1990] HCA 22 ; (1990) 169 CLR 648 and Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 per Gummow J (legitimate expectation arising from a policy statement made by a Minister). 32 The Ombudsman's report has no regulatory status, nor is it a document which has been adopted by Parliament. Accordingly it is not a document which has been the subject of any approval by Parliament, unlike the Convention considered in Teoh . Whilst the applicant claims that the Ombudsman's report was tabled in Parliament 'on or around' 9 February 2006 and was 'publicly accepted over two years ago' , there is no evidence before the Court that such report was tabled or that, even if such report had been tabled, Parliament has taken any action in regard to it. 33 In light of the above authority the Court finds that the Ombudsman's report could not give rise to a legitimate expectation that the recommendations contained therein would be considered by the Tribunal.


case_text: The applicant applied to the Tribunal for a review of the delegate's decision on 11 February 2008. However as the application was made outside of the nine day time limit prescribed by s 500(6B) of the Act the Tribunal dismissed the application on the ground of lack of jurisdiction. Subsequently, as a result of this Court's decision in Pomare v Minister for Immigration and Citizenship [2008] FCA 458 , the applicant was renotified of the decision to cancel the visa on 8 May 2008. The applicant then reapplied to the Tribunal for a review of the delegate's decision on 14 May 2008. 7 In its reasons for decision the Tribunal referred to the 'Visa Refusal and Cancellation under Section 501 of the Migration Act Direction No. 21' made by the Minister under s 499 of the Act ('Ministerial Direction No. 21'). Such Direction sets out three primary considerations which a decision-maker is required to address, namely: (a) the protection of the Australian community, and members of the community; (b) the expectations of the Australian community; and (c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interest of the child or children. 8 In applying Ministerial Direction No. 21 the Tribunal gave detailed consideration to the factual circumstances surrounding the applicant's family arrangements, the best interests of his children and the interests and expectations of the community. Having done so, the Tribunal concluded that 'the strength of community protection and expectations' outweighed the best interests of the children.


case_title: Renton v Bradbury & Anor [2001] QSC 167


case_outcome: followed

case_text: Contempt of court, including that species of contempt which consists of the breach of orders or of the court or undertakings to the court, must be proved beyond reasonable doubt: Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 534, 548. 22 All contempts are criminal in nature (183 CLR at 534). The court approaches in the adjudication of charges of contempt on the basis that criminal standards of proof and specificity apply. In this case the respondent, as was his right, did not himself give evidence although he tendered some documents. 23 The genesis of the orders made by Wilcox J appears to have been a handwritten heads of agreement signed by the director of the applicant, Mr Dowe, and Mr Monamy following the conclusion of mediation conducted with registrars of the court on 12 December 2005. The respondent has referred to that document as informing his interpretation of the orders. 24 Paragraph 3 of the handwritten document has a number of interlineations in different handwriting but significantly it sets out, in what appears to me to be unarguably clear words, the requirement that the respondent change his registered business name to 'Simply Natural Floor Coverings' (with 'Floor' and 'Coverings' written as two words each commencing with a capital letter) and use this business name on all advertising, letterhead, promotions and the like in lieu of 'Simply Natural Floorcoverings' (written as three words). 25 The respondent raised issues as to the fact that he was not personally present when Wilcox J made the orders and that he was in dispute with his then solicitor as to whether he had agreed to the orders being made in the terms in which they were made. Exhibit 7 contains some material which supports the proposition that there was some dispute between Mr Monamy and his solicitor on that topic.


case_text: The difficulty with the formulation of the finding of contempt contained in paragraph 2 of the statement of charge is that it relies on evidence of a number of disparate acts which changed over a period. There is a real possibility that there may be some duplicity in the charge as formulated, having regard to the evidence that I have recited. In Johnson v Miller [1937] HCA 77 ; (1937) 59 CLR 467 at 489-491 Dixon J made clear that a prosecutor had to specify with precision the precise act or omission relied on to constitute the particular contravention charged. That case involved a situation in which a prosecution had been brought alleging that within a particular time period a person had left licensed premises in breach of s 209(1) in the Licensing Act 1932-1935 (SA). The evidence tendered at the hearing revealed that there were many persons who had left during that time, but the prosecutor could not identify which of those many persons was relied on as the person whose departure evidenced the contravention. The charge was found bad for duplicity on that basis. 35 Here it seems to me that the applicant is relying on a number of events and different appearances of the website. I think that in fairness to the respondent the applicant must elect which particular instance it wishes to claim is a contravention and to allow the respondent an opportunity to answer in respect of that instance. I will defer making any final decision on that matter because I did not raise this issue with Mr Freeman when he was addressing. 36 This charge relates to order 3. It is plain beyond reasonable doubt that the respondent used the word 'Floorcoverings' as one word on his [advertising or] webpage until some time prior to 4 April 2006. If I am wrong in my conclusion that the ordinary reasonable person would not perceive a difference in the depiction because of the small space on the website that now appears between the word 'floor' and the word 'covering', I am satisfied beyond a reasonable doubt that, in fact, for the reasons, that I have expressed the respondent, to date, uses 'Floorcoverings' as one word. I am fortified in that conclusion by the fact that I regard the construction of order 3 as being relevantly aided by reference to order 4 which required the respondent immediately to change his business name to one in which the words 'Floor Coverings' appeared as two words with their first letters capitalised.


case_text: I am satisfied beyond reasonable doubt that the respondent has failed to publish any form of disclaimer on the website and that the use of the HTML meta tag is a deliberate evasion of the obligation to publish something that is able to be read in the ordinary way on the website. The contents of the HTML meta tag are not and at no time have been published on the website. What was required by order 5 was that there be published a disclaimer, that is it, be put forward in a form which actually communicated it. The act of publication in a bilateral act of someone putting forward a message and another person being able to read it and actually reading it. In this context it was clear beyond reasonable doubt that the order required that that the publication, in the sense of something which the person accessing the page would see and be able to read then and there, would occur whenever the page was opened. See Dow Jones & Company Inc v Gutnick [2002] HCA 56 ; (2002) 210 CLR 575 at 600-601 [26] - [28] . 44 The order in my view, beyond reasonable doubt, should be construed as requiring the disclaimer referred to appear in a way which is immediately apparent on the website in words that can be read in the English language by anyone who opens the webpage. An ordinary and natural reading of the order dictates that construction. 45 I did raise with Mr Freeman the possibility that order 5 was or contained an ambiguity in the sense that the words 'above the fold' were to my mind, and I think on the evidence, meaningless without expert evidence or other evidence as to what they conveyed. I have seen in the evidence copies of the website and I am unable to detect from viewing them what it is that might be referred to as 'above the fold' in the order. However, I am satisfied that this ambiguity makes no difference whatsoever to the construction of the order in the sense that it was a requirement of the order that there be prominence on the website in the position of the disclaimer and that it be published.


case_outcome: distinguished

case_text: next ground is that the fifth sentence of the passage quoted at [11] disregards the precept that "continuing conduct must be demonstrated that shows a lack of enduring moral quality". That is a quotation from the reasons of Lee J in Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411 ( Godley ) at [56], approved on appeal in Minister for Immigration and Multicultural and Indigenous Affairs v Godley [2005] FCAFC 10 ; (2005) 141 FCR 552 at [34] . The whole passage is as follows: Before past and present general conduct may be taken to reveal indicia that a visa applicant is not of good character continuing conduct must be demonstrated that shows a lack of enduring moral quality. Although in some circumstances isolated elements of conduct may be significant and display lack of moral worth they will be rare, and as with consideration of criminal conduct there must be due regard given to recent good conduct. The applicant contends that there is no continuing conduct of the kind of which Mr Selimi was guilty previously. The third ground attacks the passage in the Tribunal's reasons set out at [12] above ([22] of the Tribunal's reasons). Reliance is placed on another passage from Lee J's judgment in Godley (2004) 83 ALD 411 , also approved by the Full Court. His Honour said at [77]: A provision such as that contained in s 501(6)(c) is not concerned with weaknesses or blemishes in character but with ensuring that the power to refuse a visa by reference to quality of character of a visa applicant is only provided to the minister when it is demonstrable that the visa applicant is not of good character thereby giving sufficient cause for the minister to determine whether the degree of absence of good character is such that it would be clearly in the interests of the Australian community to refuse entry to that person ... This passage is preceded by an elaborate examination of matters relied upon by the Minister, which Lee J generally characterised at [77] as weaknesses or blemishes in character which in his view did not justify a conclusion that Mr Godley was a person not of good character. The matters included insignificant traffic offences, offences that were "non-informative" as to whether he was a person not of good character, a failure to disclose something influenced by his need to obtain earnings as a husband as much as by any innate defect in character, a matter of which his Honour said it was difficult to see how it could have been used by the Minister to determine bad character, and a matter that in terms of assessing a person's enduring moral quality was described as trivial. It was this catalogue of incidents that Lee J characterised as mere weaknesses or blemishes in character falling short of demonstrating that Mr Godley was not of good character. His Honour went on to hold that the Minister's reasons, which relied on the catalogue of incidents, showed that he did not apply his mind to the threshold question required to be determined under s 501(6)(c) , namely whether he could find as a fact that Mr Godley was a person not of good character. The present case is quite different from Godley (2004) 83 ALD 411. What Lee J there described as "weaknesses or blemishes in character" were trivial matters and matters uninformative as to whether Mr Godley was not of good character. The matters the Tribunal in the present case so described were not of that nature. Paragraph [22] of the Tribunal's reasons begins: "If not already apparent, I cannot find Mr Selimi has enduring moral qualities ". This refers to the incidents recorded elsewhere in the reasons, especially in [21]. The offences of which he was convicted, his conduct in relation to the claim for a protection visa, making or allowing to be made false statements for many years intended to conceal that his marriage was a sham, and his recent false evidence at the Tribunal hearing, were not trivial or uninformative matters that Lee J described in globo as "weaknesses or blemishes in character". They were serious matters that went to the core of whether Mr Selimi was a person not of good character. The Tribunal twice referred to the offences as "serious". It also stressed "the gravity and extent" of the past criminal and general conduct. It noted that in the Direction the Minister regarded serious crimes against the Act as being "very serious". In those circumstances the Tribunal's conclusion that it could not find that Mr Selimi had enduring moral qualities would, but for the balance of the sentence at [22], be unassailable. The "enduring moral qualities" test applied by the Tribunal is endorsed by Full Courts in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431 and Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277 at [8] , to which the Tribunal referred, and by Full Courts in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 and Godley [2005] FCAFC 10 ; (2005) 141 FCR 552 at [35] , to which it did not refer. What seems to have happened at [22] is that the Tribunal has taken "enduring moral qualities" from Irving and Goldie and has assimilated those qualities with "weaknesses or blemishes in character". Irving and Goldie were of course contrasting those characteristics. However, despite this slip, it is clear from a reading of the Tribunal's reasons as a whole that it regarded Mr Selimi's conduct as serious, grave and extended, and concluded that he did not have enduring moral qualities. That the Tribunal used "weaknesses or blemishes in character" as a general description of that conduct does not mean that it regarded it as trivial or uninformative of true character. The expression "infractions ... that show weaknesses or blemishes" should, in the context of the whole of the Tribunal's reasons, be understood as "weaknesses or blemishes in character of a serious nature", which, taken together with the fact that Mr Selimi lied to Departmental officers and gave false evidence to the Tribunal, demonstrated an absence of enduring moral qualities and thus an absence of good character. It is important to understand that the Tribunal was not strictly wrong in calling Mr Selimi's infractions "weaknesses or blemishes in character". They did have that quality. The description only seems to understate the seriousness of the infractions because it was used in Godley (2004) 83 ALD 411 to describe trivial matters and matters uninformative as to whether Mr Godley was not of good character. When the passage from Godley (2004) 83 ALD 411 set out at [22] above is read in the context of the facts of that case, it is seen that it provides no assistance to the applicant's third ground. For the avoidance of doubt I should record that the document described as "Application for an order to show cause" has a fourth ground. However, it appears to be an amalgam of the first and second grounds, and is disposed of by what I have said about them. None of the grounds having been made out, the application must be dismissed. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate: Dated: 5 March 2009 Counsel for the Applicant: JA Gibson Solicitor for the Applicant: Thornton Immigration Counsel for the Respondents: R Knowles Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 9 February 2009 Date of Judgment: 5 March 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/199.html


case_text: next ground is that the fifth sentence of the passage quoted at [11] disregards the precept that "continuing conduct must be demonstrated that shows a lack of enduring moral quality". That is a quotation from the reasons of Lee J in Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411 ( Godley ) at [56], approved on appeal in Minister for Immigration and Multicultural and Indigenous Affairs v Godley [2005] FCAFC 10 ; (2005) 141 FCR 552 at [34] . The whole passage is as follows: Before past and present general conduct may be taken to reveal indicia that a visa applicant is not of good character continuing conduct must be demonstrated that shows a lack of enduring moral quality. Although in some circumstances isolated elements of conduct may be significant and display lack of moral worth they will be rare, and as with consideration of criminal conduct there must be due regard given to recent good conduct. The applicant contends that there is no continuing conduct of the kind of which Mr Selimi was guilty previously. The present case is quite different from Godley (2004) 83 ALD 411. What Lee J there described as "weaknesses or blemishes in character" were trivial matters and matters uninformative as to whether Mr Godley was not of good character. The matters the Tribunal in the present case so described were not of that nature. Paragraph [22] of the Tribunal's reasons begins: "If not already apparent, I cannot find Mr Selimi has enduring moral qualities ". This refers to the incidents recorded elsewhere in the reasons, especially in [21]. The offences of which he was convicted, his conduct in relation to the claim for a protection visa, making or allowing to be made false statements for many years intended to conceal that his marriage was a sham, and his recent false evidence at the Tribunal hearing, were not trivial or uninformative matters that Lee J described in globo as "weaknesses or blemishes in character". They were serious matters that went to the core of whether Mr Selimi was a person not of good character. The Tribunal twice referred to the offences as "serious". It also stressed "the gravity and extent" of the past criminal and general conduct. It noted that in the Direction the Minister regarded serious crimes against the Act as being "very serious". In those circumstances the Tribunal's conclusion that it could not find that Mr Selimi had enduring moral qualities would, but for the balance of the sentence at [22], be unassailable. The "enduring moral qualities" test applied by the Tribunal is endorsed by Full Courts in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431 and Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277 at [8] , to which the Tribunal referred, and by Full Courts in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 and Godley [2005] FCAFC 10 ; (2005) 141 FCR 552 at [35] , to which it did not refer.


case_text: have referred at [13] and [14] to the Tribunal's observations about Mr Selimi's evidence at the hearing on 21 May 2008. This confirmed for the Tribunal the continuing nature of Mr Selimi's unsatisfactory moral qualities, and that his behaviour had not changed sufficiently since he engaged in his previous temporally extended criminal and generally dishonest behaviour. I do not accept the applicant's submission that reliance cannot be placed on these observations because they were made in the course of considering the discretionary issue. The Tribunal's reasons must be considered in full in order to determine whether it committed reviewable error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 291. The Tribunal did not fail to consider Mr Selimi's continuing conduct.


case_text: present case is quite different from Godley (2004) 83 ALD 411. What Lee J there described as "weaknesses or blemishes in character" were trivial matters and matters uninformative as to whether Mr Godley was not of good character. The matters the Tribunal in the present case so described were not of that nature. Paragraph [22] of the Tribunal's reasons begins: "If not already apparent, I cannot find Mr Selimi has enduring moral qualities ". This refers to the incidents recorded elsewhere in the reasons, especially in [21]. The offences of which he was convicted, his conduct in relation to the claim for a protection visa, making or allowing to be made false statements for many years intended to conceal that his marriage was a sham, and his recent false evidence at the Tribunal hearing, were not trivial or uninformative matters that Lee J described in globo as "weaknesses or blemishes in character". They were serious matters that went to the core of whether Mr Selimi was a person not of good character. The Tribunal twice referred to the offences as "serious". It also stressed "the gravity and extent" of the past criminal and general conduct. It noted that in the Direction the Minister regarded serious crimes against the Act as being "very serious". In those circumstances the Tribunal's conclusion that it could not find that Mr Selimi had enduring moral qualities would, but for the balance of the sentence at [22], be unassailable. The "enduring moral qualities" test applied by the Tribunal is endorsed by Full Courts in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431 and Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277 at [8] , to which the Tribunal referred, and by Full Courts in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 and Godley [2005] FCAFC 10 ; (2005) 141 FCR 552 at [35] , to which it did not refer. What seems to have happened at [22] is that the Tribunal has taken "enduring moral qualities" from Irving and Goldie and has assimilated those qualities with "weaknesses or blemishes in character". Irving and Goldie were of course contrasting those characteristics. However, despite this slip, it is clear from a reading of the Tribunal's reasons as a whole that it regarded Mr Selimi's conduct as serious, grave and extended, and concluded that he did not have enduring moral qualities. That the Tribunal used "weaknesses or blemishes in character" as a general description of that conduct does not mean that it regarded it as trivial or uninformative of true character. The expression "infractions ... that show weaknesses or blemishes" should, in the context of the whole of the Tribunal's reasons, be understood as "weaknesses or blemishes in character of a serious nature", which, taken together with the fact that Mr Selimi lied to Departmental officers and gave false evidence to the Tribunal, demonstrated an absence of enduring moral qualities and thus an absence of good character. It is important to understand that the Tribunal was not strictly wrong in calling Mr Selimi's infractions "weaknesses or blemishes in character". They did have that quality. The description only seems to understate the seriousness of the infractions because it was used in Godley (2004) 83 ALD 411 to describe trivial matters and matters uninformative as to whether Mr Godley was not of good character.


case_text: [22] the Tribunal said: If not already apparent, I cannot find Mr Selimi has enduring moral qualities ; he has committed infractions . . . that show weaknesses or blemishes in character and he is a person who lied to officers of the respondent thereby demonstrating an absence of good character (refer Irving v Minister for Immigration and Multicultural Affairs [1996] FCA 1660 ; Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277 ; Re Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27 ; (1994) 19 AAR 148). The Tribunal then turned to the discretionary considerations in Part 2 of the Direction. After considering the three primary considerations and the "other" considerations, it concluded that the discretion should be exercised in favour of a refusal of the visa. I do not need to record the Tribunal's reasoning process in this connection, because its treatment of the discretionary matters was not attacked. It is however necessary to note some findings of fact made in the course of this part of the Tribunal's reasons. At [12] of its reasons the Tribunal recorded Mr Selimi's oral evidence about the Court proceedings referred to at [8]-[9] above. He told the Tribunal he did not know the purpose for his appearance there, but understood that it had something to do with the issue to him of a visa. He could not remember whether he had an interpreter assisting him. He did not understand the proceedings. He could not remember whether he gave evidence or whether he pleaded guilty or not guilty. He said that at the conclusion of the proceedings his solicitor told him that "everything was alright". He did not discover that he had been convicted until the present application was made. At [32] of its reasons, in the course of dealing with discretionary considerations, the Tribunal said: I am satisfied and find as a fact that Mr Selimi did understand the nature of the proceedings, that he did plead not guilty, that he did give evidence and that the allegations against him were properly interpreted. His denial throughout the hearing of this application of his understanding of the proceedings at Dandenong Magistrates' Court and his memory of it does him no credit. The present case is quite different from Godley (2004) 83 ALD 411. What Lee J there described as "weaknesses or blemishes in character" were trivial matters and matters uninformative as to whether Mr Godley was not of good character. The matters the Tribunal in the present case so described were not of that nature. Paragraph [22] of the Tribunal's reasons begins: "If not already apparent, I cannot find Mr Selimi has enduring moral qualities ". This refers to the incidents recorded elsewhere in the reasons, especially in [21]. The offences of which he was convicted, his conduct in relation to the claim for a protection visa, making or allowing to be made false statements for many years intended to conceal that his marriage was a sham, and his recent false evidence at the Tribunal hearing, were not trivial or uninformative matters that Lee J described in globo as "weaknesses or blemishes in character". They were serious matters that went to the core of whether Mr Selimi was a person not of good character. The Tribunal twice referred to the offences as "serious". It also stressed "the gravity and extent" of the past criminal and general conduct. It noted that in the Direction the Minister regarded serious crimes against the Act as being "very serious". In those circumstances the Tribunal's conclusion that it could not find that Mr Selimi had enduring moral qualities would, but for the balance of the sentence at [22], be unassailable. The "enduring moral qualities" test applied by the Tribunal is endorsed by Full Courts in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431 and Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277 at [8] , to which the Tribunal referred, and by Full Courts in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 and Godley [2005] FCAFC 10 ; (2005) 141 FCR 552 at [35] , to which it did not refer. What seems to have happened at [22] is that the Tribunal has taken "enduring moral qualities" from Irving and Goldie and has assimilated those qualities with "weaknesses or blemishes in character". Irving and Goldie were of course contrasting those characteristics. However, despite this slip, it is clear from a reading of the Tribunal's reasons as a whole that it regarded Mr Selimi's conduct as serious, grave and extended, and concluded that he did not have enduring moral qualities. That the Tribunal used "weaknesses or blemishes in character" as a general description of that conduct does not mean that it regarded it as trivial or uninformative of true character. The expression "infractions ... that show weaknesses or blemishes" should, in the context of the whole of the Tribunal's reasons, be understood as "weaknesses or blemishes in character of a serious nature", which, taken together with the fact that Mr Selimi lied to Departmental officers and gave false evidence to the Tribunal, demonstrated an absence of enduring moral qualities and thus an absence of good character. It is important to understand that the Tribunal was not strictly wrong in calling Mr Selimi's infractions "weaknesses or blemishes in character". They did have that quality. The description only seems to understate the seriousness of the infractions because it was used in Godley (2004) 83 ALD 411 to describe trivial matters and matters uninformative as to whether Mr Godley was not of good character.


case_text: present case is quite different from Godley (2004) 83 ALD 411. What Lee J there described as "weaknesses or blemishes in character" were trivial matters and matters uninformative as to whether Mr Godley was not of good character. The matters the Tribunal in the present case so described were not of that nature. Paragraph [22] of the Tribunal's reasons begins: "If not already apparent, I cannot find Mr Selimi has enduring moral qualities ". This refers to the incidents recorded elsewhere in the reasons, especially in [21]. The offences of which he was convicted, his conduct in relation to the claim for a protection visa, making or allowing to be made false statements for many years intended to conceal that his marriage was a sham, and his recent false evidence at the Tribunal hearing, were not trivial or uninformative matters that Lee J described in globo as "weaknesses or blemishes in character". They were serious matters that went to the core of whether Mr Selimi was a person not of good character. The Tribunal twice referred to the offences as "serious". It also stressed "the gravity and extent" of the past criminal and general conduct. It noted that in the Direction the Minister regarded serious crimes against the Act as being "very serious". In those circumstances the Tribunal's conclusion that it could not find that Mr Selimi had enduring moral qualities would, but for the balance of the sentence at [22], be unassailable. The "enduring moral qualities" test applied by the Tribunal is endorsed by Full Courts in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431 and Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277 at [8] , to which the Tribunal referred, and by Full Courts in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 and Godley [2005] FCAFC 10 ; (2005) 141 FCR 552 at [35] , to which it did not refer.


case_text: the High Court has had occasion to reflect upon the amendment of pleadings and case management principles in the context of litigation: see Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 ; (2009) 83 ALJR 951 (Aon Risk Services). One factor which, in my opinion, emerges from the judgments delivered in that case is that decisions in relation to whether or not to permit amendments ought to be informed not merely by the interests of the parties but also by a wider public interest. For example, at para 25, French CJ observed: Recognition of the public interest in the administration of civil justice procedures in Australia and the United Kingdom pre-dates the Woolf Report and its attendant reforms. In Dawson v Deputy Commissioner of Taxation , King CJ acknowledge the responsibility of judges to ensure, "so far as possible and subject to overriding considerations of justice", that the limited resources which the State commits to the administration of justice are not wasted by the failure of parties to adhere to trial dates of which they have had proper notice. In a late amendment case considered by the House of Lords in 1987, there was a marked departure from the approach of Bowen LJ in Cropper v Smith . Lord Griffiths required that judges considering amendments weigh in the balance: the pressure on the courts caused by the great increase in litigation and the consequent necessity that, in the interests of the whole community, legal business should be conducted efficiently. French CJ continued: The same indulgence could not be shown towards the negligent conduct of litigation as might have been possible in a "more leisured age". That approach was followed by Sheppard J in a revenue case heard in the Federal Court. And in the New South Wales Court of Appeal in GSA Industries , Samuels JA said that: the emollient effect of an order for costs as a panacea may now be consigned to the Aladdin's cave which Lord Reid rejected as one of the fairy tales in which we no longer believe. Accepting, as I do, that an appeal statement is not a pleading document, its purpose nonetheless is to serve the ends of justice by ensuring procedural fairness. At this late stage of a proceeding, and having regard to sentiments evident in Aon Risk Services , the purpose of Tax List directions and of case management generally, it seems to me that it would be procedurally unfair to permit the Commissioner to rely upon the appeal statement in its amended form. Especially that is so in light of the deliberate statement made in open court six months ago by reference to which the appellant taxpayer has cast its case. There is a further observation which I feel constrained to make, and that is in relation to the Commissioner's utilisation of, or attempted utilisation of, s 15 of the Taxation Administration Act 1953 (Cth) in relation to the conduct of serious revenue law litigation in this Court. Like any litigant, the Commissioner is entitled to appear in person. Section 15 also makes it plain that the intention is that the Commissioner may in writing authorise one of his officers to appear. In so doing, though, that officer is not clothed with all that a court is entitled to expect from a person on the roll of legal practitioners.


case_text: has been observed in prior authority that the purpose of the appeal statement is one of informing a taxpayer of the Commissioner's view, at that time, of the bases of the Commissioner's rejection of an assessment objection. In this regard, it has been said that its purpose is a practical one: see BAE Systems Australia (New South Wales) Pty Ltd v Commissioner of Taxation (2008) 69 ATR 567. It has also been observed that the appeal statement is not a pleading: McDonald's Australia Limited v Commissioner of Taxation (No 2) (2008) 69 ATR 898. So much may be accepted. It is nonetheless a feature of an appeal statement that it forms part of an obligation which the Court has to afford the parties to a proceeding procedural fairness. One of the ways in which that particular obligation is fulfilled is by ensuring that a party to a proceeding knows the case it has to meet.


case_text: Bailey v Commissioner of Taxation [1977] HCA 11 ; (1977) 136 CLR 214 , commencing at 216, Barwick CJ observed that the assessment of income tax is the process of applying the Act to a state of fact. His Honour continued that: [T]he process of assessment requires the application of the Act to the facts as known to and accepted by the Commissioner. He must of necessity, as part of that process, adopt a view of the relevant facts. And then, a little later: Quite clearly, the taxpayer is entitled to know the basis on which the assessment has been made. An adjustment sheet supplied with the notice of assessment can be expected to state and should state that basis. The taxpayer should be told the taxable facts. In a separate judgment in that case, Mason J stated, at pages 220 to 221: There is therefore no foundation for the notion that the Commissioner stands apart from ordinary litigants in some special position in relation to the giving of particulars ... To conclude otherwise would result not merely in injustice to the taxpayer, who will remain in doubt as to the Commissioner's case until it is presented at the hearing, but also in unnecessary preparations and in a hearing of unnecessary length as the taxpayer endeavours to deal with matters on which, as it may subsequently transpire, the Commissioner is placing no reliance whatsoever ... Although, speaking generally, the taxpayer knows or should know the facts relevant to a correct assessment of his income, there are other facts which will be relevant on the hearing of an appeal. Under s 190 [the then equivalent of s 14ZZO] the taxpayer bears the onus of showing that the Commissioner's assessment is excessive. Consequently the relevant facts in the appeal include the view of the facts on which the Commissioner has based his assessment, the manner in which he has arrived at his assessment. These facts are not within the knowledge of the taxpayer; they are within the knowledge of the Commissioner. Indeed, there is very much to be said for the view that fairness to the taxpayer demands that the Commissioner should be compelled to give particulars of his assessment when it issues so that the taxpayer is adequately informed as to the manner in which the assessment has been arrived at and may then determine whether he will object to the assessment and subsequently appeal. It is not difficult to see that sentiments in relation to fairness to a taxpayer informed the making of O 52B and, in particular, r 5, in its provision for an appeal statement; nor is it difficult to see that those same sentiments of fairness attend the provision found in the Tax List Directions at para 5.4 that, at the scheduling conference, the parties will be expected to address the following: (a) Narrowing of issues. In clear outline, the issues and facts that appear to be in dispute. None of this is to suggest that in any way an appeal statement rule, or for that matter, a practice direction can be a substitute for the statutory obligation which falls on an appellant to prove an assessment to be excessive. That is not to say, though, that when a taxpayer, by filing an appeal, engages judicial power, the respondent Commissioner is in some special privileged position in relation to the affording of procedural fairness to a taxpayer. The statement that was given in response to what was a very deliberate question at the scheduling conference was a statement made on instructions. It is true to say there had been some earlier informal correspondence between counsel acting respectively for the Commissioner and the taxpayer. Whatever might be the tenor of that correspondence, it was not known to the Court, nor for that matter, did it have the formality of a statement made in open court by counsel on behalf of, in this case, the Commissioner. The affidavits which have come to be filed on behalf of the applicant, Pacific Exchange, were cast, unsurprisingly, with the benefit of, not only the Commissioner's appeal statement, but also the statement made in open court.


case_text: in time, in Commissioner of Taxation v ANZ Savings Bank [1994] HCA 58 ; (1994) 181 CLR 466 at 479, Brennan, Deane, Dawson and Toohey JJ remarked, in their joint judgment: In several decisions it has been held that the Commissioner may support the amount of the assessment on a ground not taken into account at the time the assessment was made. The Commissioner will be required to give proper notice to the taxpayer and, where appropriate, will be directed to furnish particulars. But, as Kitto J observed in Federal Commissioner of Taxation v Wade : "No conduct on the part of the commissioner could operate as an estoppel against the operation of the Act." [ emphasis added ]


case_text: is a line of authority, the origins of which may be traced to remarks made by Kitto J in Commissioner of Taxation v Wade [1951] HCA 66 ; (1951) 84 CLR 105 at 117, which stands for this proposition: No conduct on the part of the commissioner could operate as an estoppel against the operation of the Act. Later in time, in Commissioner of Taxation v ANZ Savings Bank [1994] HCA 58 ; (1994) 181 CLR 466 at 479, Brennan, Deane, Dawson and Toohey JJ remarked, in their joint judgment: In several decisions it has been held that the Commissioner may support the amount of the assessment on a ground not taken into account at the time the assessment was made. The Commissioner will be required to give proper notice to the taxpayer and, where appropriate, will be directed to furnish particulars. But, as Kitto J observed in Federal Commissioner of Taxation v Wade : "No conduct on the part of the commissioner could operate as an estoppel against the operation of the Act." [ emphasis added ]


case_title: Hadjiloucas v Crean [1988] 1 WLR 1006

case_text: of the cases to which their Honours refer, at para 33 in the passage quoted, is Hadjiloucas v Crean [1988] 1 WLR 1006. In particular, their Honours draw attention in their joint judgment to remarks made by Mustill LJ at page 1019, with reference to earlier remarks as to sham, made by Diplock LJ in Snook v London and West Riding Investments Ltd [1967] 2 QB 786 at 802. What Mustill LJ had to say was this: [I]t is necessary to distinguish between three situations in which, aside from any question of rectification, the court may take an agreement otherwise than at its face value. The first exists where the surrounding circumstances show that the arrangement between the parties was never intended to create any legally enforceable obligation. The second is the case of the "sham", in the sense in which that word has been used in numerous cases, including Snook v London and West Riding Investments Limited (1967) 2 QB 786 at 802. Correctly employed, this term denotes an agreement or series of agreements which are deliberately framed with the object of deceiving third parties as to the true nature and effect of the legal relations between the parties. The third situation is one in which the document does precisely reflect the true agreement between the parties, but where the language of the document (and in particular its title or description) superficially indicates that it falls into one legal category, whereas when properly analysed in light of the surrounding circumstances it can be seen to fall into another. As I have mentioned by reference to Mustill LJ's observations in Hadjiloucas , there are three situations in which a court might take an agreement otherwise than at its face value. A fair reading of the Commissioner's appeal statement, as originally cast, takes one to the position, confirmed in open court by the statement on the Commissioner's behalf, that a sham in the sense described by Mustill LJ was not being relied upon, as opposed to one or perhaps both of the other bases upon which a court might choose to take an agreement otherwise than at its face value. It was submitted on behalf of the Commissioner that the amended appeal statement was merely an extension of sentiments already apparent in the appeal statement as filed in February. It is true to say that the use of the word "purported" raised or might be thought to raise an interrogative note as to exactly the case the Commissioner was seeking to have a taxpayer meet by way of discharging the burden of proving an assessment to be excessive. Whatever interrogative note there may be in that word was answered on 20 March. Mr Prescott deposes in his affidavit to the particular consequences which he apprehends would fall upon Pacific Exchange in the event that leave to amend were granted. These statements are not challenged: If the new allegations are allowed to be pressed, then I believe that the trial dates will have to be vacated. We will need to seek particulars of the allegations, apply for limited discovery, prepare affidavits in reply, including an affidavit for Mrs Catherine Cea against whom the allegation of sham has been made in and because of her absence as a witness, and prepare an amended appeal statement. Having regard to the time taken to date in preparing the case to date, this will take a significant amount of time. It is further relevant to note that both Mr Philip Cea and Ms Michelle King have finalised their travel arrangements to attend before the Court in three weeks time. Having discussed the issue with Mr Robertson of counsel, my reasons for deciding not to produce an affidavit from Mrs Catherine Cea were two-fold: (a) Counsel was satisfied that the material provided and evidence sworn by Mr Phillip Cea and Ms Michelle King was, when read in conjunction with the other affidavit material and evidence provided, sufficient to adequately address the issues which I believed, at the time were to be resolved by the Court, and (b) More importantly, Mrs Catherin Cea's medical condition was such that she was house-bound and would not be able to travel to Australia to give evidence on medical advice. [sic]


case_text: of the submissions made on behalf of the Commissioner as to why it was not procedurally unfair for the appeal statement in its amended form to be the subject of a grant of leave was put in these terms: The fact the Commissioner had not alleged sham or relied upon the tax avoidance provisions of the legislation prior to the filing of the applicant's material does not mean that the Court is obliged to accept PEC had completely subjected itself to an obligation under the purported "Participation Agreement" or that the alleged payments had the characterisation of an outgoing for the purposes of ss 51(1)/8- 1 . Goldberg J, with whom the other members of the Full Court agreed, dismissed a similar proposition by the taxpayer in Star City [2009] FCAFC 19 by reference, inter alia, to Jupiters Limited v Deputy Commissioner of Taxation (2001) 148 ATR 511. Jupiters Limited v Deputy Commissioner of Taxation (2002) ATC 4022 though, was not a case in which "sham", as that term was used by Mustill LJ, was in any way a feature. Rather, it was a case where, against wider surrounding circumstances, a conclusion was able to be reached that a particular outgoing was one of capital rather than on revenue account. It is quite irrelevant to the present case. When an allegation of sham is made, it is tantamount to an allegation of fraud. As it is made in this case, it is certainly such an allegation, and a serious one indeed. It has been made at a time when, having regard to the ordinary residence of key witnesses or potential witnesses in the Philippines, it is difficult to see how the granting of leave would do other than carry with it, as a corollary, an adjournment of the hearing of a taxation appeal, the trial of which has been fixed for many months.


case_title: McDonald's Australia Limited v Commissioner of Taxation (No 2) (2008) 69 ATR 898


case_text: approach the question as to what amounts to sham by reference to a passage which appears in the joint judgment of Gleeson CJ and Gummow and Crennan JJ in Raftland Pty Ltd v Federal Commissioner of Taxation [2008] HCA 21 ; (2008) 82 ALJR 934 at paras 33 36: [33] It was not contended by the appellant that the amounts referred to above were misappropriated. Yet it is central to the argument for the appellant that they were amounts to which the E & M Unit Trust and, through that trust, its beneficiaries were entitled. The apparent discrepancy between the entitlements appearing on the face of the documents and the way in which the funds were applied gave rise to a question whether the documents were to be taken at face value. In various situations, the court may take an agreement or other instrument, such as a settlement on trust, as not fully disclosing the legal rights and entitlements for which it provides on its face. If that be so, the parol evidence rule in Australia identified with Hoyt's Pty Ltd v Spencer does not apply. [34] One such case is where other evidence of the intentions of the relevant actors shows that the document was brought into existence "as a mere piece of machinery" for serving some purpose other than that of constituting the whole of the arrangement. That, in essence, is the respondent's case with respect to the [2008] HCA 21 ; 246 ALR 406 at 417 alleged existence of the "present entitlement" of the trustee of the E & M Unit Trust to the income of the Raftland Trust. [35] The term "sham" may be employed here, but as Lockhart J emphasised in Sharrment Pty Ltd v Official Trustee in Bankruptcy the term is ambiguous and uncertainty surrounds its meaning and application. With reference to remarks of Diplock LJ in Snook v London and West Riding Investments Ltd , Mistily LJ later identified as one of several situations where an agreement may be taken otherwise than at its face value, that where there was a "sham", the term, when "[c]orrectly employed", denoted an objective of deliberate deception of third parties. [36] The presence of an objective of deliberate deception indicates fraud. This suggests the need for caution in adoption of the description "sham". However, in the present litigation it may be used in a sense which is less pejorative but still apt to deny the critical step in the appellant's case. The absence of a present entitlement within the meaning of s 100A(1)(a) of the Act may appear from an examination of the whole of the relevant circumstances, and these are not confined to the terms of the Raftland Trust instrument. Later in time, in Commissioner of Taxation v ANZ Savings Bank [1994] HCA 58 ; (1994) 181 CLR 466 at 479, Brennan, Deane, Dawson and Toohey JJ remarked, in their joint judgment: In several decisions it has been held that the Commissioner may support the amount of the assessment on a ground not taken into account at the time the assessment was made. The Commissioner will be required to give proper notice to the taxpayer and, where appropriate, will be directed to furnish particulars. But, as Kitto J observed in Federal Commissioner of Taxation v Wade : "No conduct on the part of the commissioner could operate as an estoppel against the operation of the Act." [ emphasis added ]