case_text: Although courts have in the past been inclined to take a broad approach by looking at the substance of the overall outcome and have been reluctant to exercise discretion to apportion costs according to parties' success or failure on particular issues (see Trade Practices Commission v Nicholas Enterprises Pty Limited (No 3) (1979) 28 ALR 201 at 208), recent authorities accept that in complex commercial matters, and particularly in patent suits where there are numerous issues, the discretion may be exercised to apportion costs concomitant with the parties' respective success or failure on certain issues: JMVB Enterprises (Formerly A'Van Campers Pty Ltd) v Camoflag Pty Ltd (No 2) [2007] FCAFC 6 at 7; and see James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [34] .


case_outcome: cited

case_title: JMVB Enterprises (Formerly A'Van Campers Pty Ltd) v Camoflag Pty Ltd (No 2) [2007] FCAFC 6


case_text: Whether an award for costs is apportioned between the parties is a matter for judicial discretion: s 43(2) of the Federal Court of Australia Act 1976 (Cth). In the ordinary course of litigation costs follow the event; that is, unless special circumstances exist to order otherwise, the successful party should be reimbursed its costs of the litigation: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 48-134 at 48-136; Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 271; Beecham Group PLC v Colgate-Palmolive Pty Ltd (2005) 66 IPR 273 at 274; TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (No 3) [2005] FCAFC 194 at [2] .


case_title: Trade Practices Commission v Nicholas Enterprises Pty Limited (No 3) (1979) 28 ALR 201


case_text: Even assuming that that is the basis of challenge it faces the difficulty that there is not a scintilla of evidence of actual bias on the part of the Tribunal and neither is there to be found in the Tribunal's reasons anything which would give rise to the objective possibility of bias, having regard to what was said by the High Court in respect of such a challenge in Re Refugee Tribunal Ex Parte H [2001] HCA 28 ; (2001) 75 ALJR 982 at 983, para 5. Thus, however one approaches ground 3, whether from a perspective of a challenge to credibility findings or from the perspective of a repetition of a bias challenge, there is no merit in that ground. 15 Ground 4 is not, in terms a ground of jurisdictional error, although in fairness and having regard to the reference in the ground to the Magistrate's conclusion at para 24 of this reasons for judgment, I take that ground to be a repetition of the allegation that the Tribunal breached s 425 of the Migration Act and that the learned Magistrate erred in not so finding. There was certainly a development of argument in the Appellant's oral submissions that there had been a breach of s 425 , although as was, with respect, correctly submitted on behalf of the Minister, there was an absence of particularity in the basis of challenge as developed in those oral submissions. 16 In the notice of appeal, para 4, the Appellant alleges, or at least states, that he does not know why the Magistrate (I infer) could not listen to the recording tapes of the Tribunal's hearing. He makes reference to his absence of financial resources and consequent inability to afford the fee in respect of obtaining the transcript of the Tribunal's hearing. It was not, though, for the Magistrate of his own motion to obtain such a transcript.


case_text: It is worth repeating, lest the Appellant think that I differ from the Federal Magistrate in this regard, that the Tribunal was not obliged to disclose to him under s 425 its mental processes or to give a running commentary on what it thought about the evidence that he was giving. The authority to which the Federal Magistrate makes reference, SZBEL v Minister for Immigration, Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 81 ALJR 515 at 523, para 48, binds me as much as it did the Federal Magistrate in this regard. 19 Overall there is undoubtedly a feeling of disappointment on the part of the Appellant that his claimed basis for his protection visa was not upheld. However, and it is a significant "however," as I have already stated it is not the role of a court on a judicial review proceeding to revisit merits and much less is it the role of this Court. The bases of challenge which are set out in the notice of appeal are not, in my opinion, made out. That is so whether one regards the challenge made in ground 3 as a challenge to credibility findings on the basis of illogicality or irrationality or whether one regards that ground as a repetition of the bias ground that was advanced before the Federal Magistrate. 20 For these reasons, then, the appeal in my opinion must be dismissed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 12 August 2008 Counsel for the Appellant: The Appellant appeared in person Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 5 August 2008 Date of Judgment: 5 August 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1202.html


case_text: after I made those orders and handed down the reasons for judgment, Mr Priestley made an application in each case pursuant to O 52 r 10 of the Federal Court Rules . He made no submissions as to why leave should be granted other than to repeat the fact that he invoked O 52 r 10 as was, he said, his right. In applying the test set out for the grant of leave to appeal in Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 , I have concluded that neither decision was attended with sufficient doubt to warrant a grant of leave to appeal. Further, no substantial injustice would be done if leave to appeal were not granted, even assuming that the decisions were wrong. To the extent that it is relevant, the respondents say that, in each case, if the matters were to go to hearing, the same evidence would be adduced on their part although perhaps in a different form. This, however, is not conclusive of the matter.


case_title: Priestley v Godwin [2008] FCA 1179

case_text: I formed the above view and informed the parties, Mr Priestley, in effect, sought leave to reopen his applications for leave to appeal in order to raise further matters as to why leave should be granted. He raised matters that were the subject of previous decisions by me in relation to the alleged invalidity of s 31A of the Federal Court Act and O 20 r 5 of the Federal Court Rules ( Priestley v Godwin (No 3) [2008] FCA 1529 ; (2008) 172 FCR 139) and in relation to the applicability of the Human Rights Act 2004 (ACT) ( Priestley v Godwin (No 2) [2008] FCA 1453 ; (2008) 171 FCR 493). He also raised allegations, unsupported by evidence, of what he termed bias and jurisdictional error. I dealt with Mr Priestley's allegations of bias in Priestley v Godwin [2008] FCA 1179. Those allegations were also the subject of an application to the High Court and were described by French CJ as ' not tenable ' ( Priestley v Godwin (Parliamentary Service Merit Protection Commissioner) [2008] HCA 59 ; (2008) 251 ALR 612 at [31] ).


case_text: applications filed on 3 January 2008, Mr Priestley sought orders pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act') that the respondent(s) in each matter prepare and furnish a statement of reasons pursuant to s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) for decisions that he characterised and which he said were made. In each case, the respondent(s) sought orders under s 31A of the Federal Court Act for summary dismissal. I concluded in each case that there was no decision as alleged by Mr Priestley. I dismissed each proceeding pursuant to s 31A of the Federal Court Act ( Priestley v Godwin (No 4) [2009] FCA 560; Priestley v Hawker [2009] FCA 561). The applications for leave to appeal


case_title: Priestley v Godwin (Parliamentary Service Merit Protection Commissioner) [2008] HCA 59 ; (2008) 251 ALR 612


case_title: Priestley v Hawker [2009] FCA 561


case_outcome: referred to

case_text: In my respectful opinion, the Federal Magistrate erred in taking the approach identified in the passages from his reasons set out above. It seems to me that in the circumstances before him the Federal Magistrate had the choice of granting the appellant an adjournment so that he could obtain the tape recording of the Tribunal hearing or, upon a proper exercise of the discretion, refusing an adjournment and proceeding to hear the application for judicial review. He must be taken to have rejected the suggestion of an adjournment, but in my respectful opinion he exercised his discretion to refuse an adjournment on a basis which was incorrect in law and, it follows, by taking into account an irrelevant consideration. The Federal Magistrate was exercising original jurisdiction and it is trite to say that in the usual course all evidence will be called before the Court exercising original jurisdiction. Whether or not an appeal is inevitable is irrelevant. Furthermore, it is not right to say that this Court exercising appellate jurisdiction will "no doubt" take into account further evidence. Whilst this Court has a discretion to receive further evidence under s 27 of the Federal Court of Australia Act 1976 (Cth), that discretion is exercised in accordance with well-established principles. One such principle, which I think is uncontroversial, is that the discretion is not to be exercised so as to have the practical effect of obliterating the distinction between original and appellate jurisdiction: CDJ v VAJ [1998] HCA 67 ; (1998) 197 CLR 172 , 201-202 at [111] per McHugh, Gummow and Callinan JJ. 15 In my opinion, the Federal Magistrate erred in law in the manner in which he exercised his discretion whether to adjourn the hearing of the application for judicial review. 16 Even if, contrary to my view, the Federal Magistrate did not err in deciding to proceed to hear and determine the application for judicial review by reference to the considerations he identified, he erred in law in the manner in which he dealt with the appellant's claim that he did not have a competent interpreter at the Tribunal hearing. The tape recording of the Tribunal hearing was, no doubt, likely to be the best evidence in terms of supporting or negating the appellant's claim and even if the appellant were not given an opportunity to obtain it, the first respondent may have wished to obtain it if some evidence in support of his claim was otherwise put forward by the appellant. However, it seems, from his reasons at least, that the Federal Magistrate was saying that evidence from the appellant as to what transpired at the hearing would not be evidence in support of his claim, or could not be, or could not be accepted in the absence of corroboration. Such views are incorrect. Needless to say, whether evidence from the appellant alone would be sufficient to establish his claim or whether it would even be accepted are other matters. It seems to me that if the application for judicial review proceeded (and was not adjourned) and the appellant wished to press his claim that he did not have a competent interpreter at the Tribunal hearing then he should have been told that he would need to give evidence from the witness box and that he would be subject to cross-examination.


case_text: In these circumstances the Court of its own motion listed the matter for a directions hearing on 9 April 2008. At that directions hearing the Court directed the parties to file and serve submissions in relation to the disposition of the application pursuant to s 190F(6) of the Native Title Act on or before 7 May 2008. Subsequent to this date and in light of the Full Court's decision in the matter of Gudjala People # 2 v Native Title Registrar [2008] FCAFC 157 delivered on 27 August 2008, parties were invited by the Court to file and serve any further submissions prior to the hearing of the application. 5 In deciding whether the application should be dismissed I have considered s 190F(6) of the Native Title Act , which provides as follows: The Court may, either on the application of a party or on its own motion, dismiss the application in which the claim was made ... if: (a) the Court is satisfied that the application in issue has not been amended since consideration by the Registrar, and is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar; and (b) in the opinion of the Court, there is no other reason why the application in issue should not be dismissed. 6 There is no evidence, and it was not submitted by any party, that this application is likely to be amended at all, never mind in a way that would lead to a different outcome once considered by the Registrar of the National Native Title Tribunal.


case_text: Legal professional privilege has been recognised as a fundamental right in our legal system since the reign of Elizabeth I (see Wigmore on Evidence (McNaughton Rev 1961) Vol VIII, para 2290). In Baker v Campbell [1983] HCA 39 ; (1983) 153 CLR 52 Wilson J referred to the current principle of legal professional privilege (at 95) as follows: 'The multiplicity and complexity of the demands which the modern state makes upon its citizens underlines the continued relevance of the privilege to the public interest. The adequate protection according to law of the privacy and liberty of the individual is an essential mark of a free society and unless abrogated or abridged by statute the common law privilege attaching to the relationship of solicitor and client is an important element in that protection. It is not only a matter of protection of the client. The freedom to consult one's legal adviser in the knowledge that confidential communications will be safeguarded will often make its own contribution to the general level of respect for and observance of the law within the community see an article by Charles A Miller, "The Challenges to the Attorney Client Privilege" Virginian Law Review , vol. 49 (1963), p.262.' 18 In the same decision Deane J said (at 118): '... I am persuaded that the general and substantive principle underlying legal professional privilege is of fundamental importance to the protection and preservation of the rights, dignity and equality of the ordinary citizen under the law in that it is a precondition of full and unreserved communication with his lawyer.' 23 Saunders concerned a claim for privilege in respect of documents seized by the AFP as part of an ongoing investigation into the taxation affairs of the applicant. It had been submitted by the AFP in that case that because the applicant failed to claim privilege at the time of the execution of the warrant, he had impliedly waived privilege over the seized documents. In that case, the AFP relied on observations of Mason J in Baker v Campbell at 80 to the effect that the authorities seemed to suggest that privilege was lost as soon as a document passed into the hands of another who may tender it in evidence. French J in Saunders said of these observations at 473: 'With respect, these observations of the majority in Baker v Campbell fall a long way short of the suggestion that the seizure under warrant of a document the subject of legal professional privilege which has not been waived causes that privilege to be lost. The fact that the seizure may have occurred in circumstances in which the officer executing the warrant was unaware of the subsistence of legal professional privilege in the relevant document does not, in my opinion, lead to the conclusion that the privilege is lost.'


case_text: In Mann v Carnell , the High Court referred to the case of Benecke v National Australia Bank Ltd (1993) 35 NSWLR 110, a decision of the New South Wales Court of Appeal. In that case, a woman gave evidence concerning her instructions to a barrister in related proceedings, apparently believing that she could prevent the barrister giving his version of the instructions. The Court of Appeal held that privilege had been impliedly waived. The High Court said of that decision (at 13): 'She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.' 22 However both Mann v Carnell and Benecke involved circumstances where the alleged waiver resulted from a voluntary act by the holder of the privilege, albeit an act which was not intended to waive privilege. The present case involves circumstances where documents were provided under compulsion of law. Several authorities have indicated that the considerations in such cases are likely to be different: see Saunders v Commissioner, Australian Federal Police (1998) 160 ALR 469 at 473; Commissioner of the Police Service v Nirta [2002] 1 Qd R 364 at 368-9; Goldberg and Anor v Ng and Ors (1995) 132 ALR 57 at 68.


case_outcome: discussed

case_text: However both Mann v Carnell and Benecke involved circumstances where the alleged waiver resulted from a voluntary act by the holder of the privilege, albeit an act which was not intended to waive privilege. The present case involves circumstances where documents were provided under compulsion of law. Several authorities have indicated that the considerations in such cases are likely to be different: see Saunders v Commissioner, Australian Federal Police (1998) 160 ALR 469 at 473; Commissioner of the Police Service v Nirta [2002] 1 Qd R 364 at 368-9; Goldberg and Anor v Ng and Ors (1995) 132 ALR 57 at 68. 24 In Saunders , the applicant claimed to have indicated at the time of the execution of the warrant that he reserved his rights to challenge the lawfulness of the seizure. However in Commissioner of the Police Service v Nirta [2002] 1 Qd R 364, Mullins J held that the right to claim legal professional privilege over documents seized pursuant to a search warrant was not lost because a claim was not made at the time of seizure. Mullins J noted two relevant factors: firstly, that the respondent had been wrongfully informed that he could not contact the solicitors who were acting for him; and secondly, that the claim for privilege was made at the first available opportunity after having spoken with the solicitor acting for him.


case_text: However both Mann v Carnell and Benecke involved circumstances where the alleged waiver resulted from a voluntary act by the holder of the privilege, albeit an act which was not intended to waive privilege. The present case involves circumstances where documents were provided under compulsion of law. Several authorities have indicated that the considerations in such cases are likely to be different: see Saunders v Commissioner, Australian Federal Police (1998) 160 ALR 469 at 473; Commissioner of the Police Service v Nirta [2002] 1 Qd R 364 at 368-9; Goldberg and Anor v Ng and Ors (1995) 132 ALR 57 at 68.


case_outcome: followed

case_text: Implied waiver of legal professional privilege was discussed by the High Court in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1. In that decision, the majority (Gleeson CJ, Gaudron, Gummow and Callinan JJ) observed (at 13): 'Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law". This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege.' 20 As recognised in the above passage, whether privilege has been impliedly waived depends upon an objective assessment whether conduct is inconsistent with the maintenance of privilege, not a consideration of the subjective intention of the party whose confidentiality the privilege protects. 21 In Mann v Carnell , the High Court referred to the case of Benecke v National Australia Bank Ltd (1993) 35 NSWLR 110, a decision of the New South Wales Court of Appeal. In that case, a woman gave evidence concerning her instructions to a barrister in related proceedings, apparently believing that she could prevent the barrister giving his version of the instructions. The Court of Appeal held that privilege had been impliedly waived. The High Court said of that decision (at 13): 'She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.' 22 However both Mann v Carnell and Benecke involved circumstances where the alleged waiver resulted from a voluntary act by the holder of the privilege, albeit an act which was not intended to waive privilege. The present case involves circumstances where documents were provided under compulsion of law. Several authorities have indicated that the considerations in such cases are likely to be different: see Saunders v Commissioner, Australian Federal Police (1998) 160 ALR 469 at 473; Commissioner of the Police Service v Nirta [2002] 1 Qd R 364 at 368-9; Goldberg and Anor v Ng and Ors (1995) 132 ALR 57 at 68. 42 In my opinion, that conduct is inconsistent with the continuation of privilege in the documents seized. I recognise that the right to maintain the confidentiality of legal advice attaches to the applicant rather than to her legal advisor: see Mann v Carnell at [28]. However, in this case, the applicant had instructed Mr O'Brien to advise her in relation to the privilege claim. Mr O'Brien, having knowledge of the seized documents from both Dimocks and the Rosebery premises, did not make a claim for privilege on her behalf. The fact that the documents were being held pending a claim for privilege was drawn to his attention by the facsimile from the AFP. He did not then make a claim for legal professional privilege and accordingly abandoned Robert Norman's claim for privilege. The situation is analogous to that considered by the Supreme Court of New South Wales in Spedley , where Cole J observed at 729: '... I am of the opinion that the conduct of Bank of New Zealand in sitting by with knowledge [that material to which a claim for privilege could be made was being used] ... and yet taking no steps to make a claim of privilege on behalf of Bank of New Zealand ... does constitute waiver of legal professional privilege. Messrs Freehill Hollingdale & Page were advising Bank of New Zealand regarding the $25 million claim. Litigation obviously was a possibility, if not a probability. In those circumstances a solicitor is "the agent of his client in all matters that may reasonably be expected to arise for decision in the cause" (per Denning LJ in Griffiths v Evans [1953] 1 WLR 1424 at 1431 ...).'


case_text: However both Mann v Carnell and Benecke involved circumstances where the alleged waiver resulted from a voluntary act by the holder of the privilege, albeit an act which was not intended to waive privilege. The present case involves circumstances where documents were provided under compulsion of law. Several authorities have indicated that the considerations in such cases are likely to be different: see Saunders v Commissioner, Australian Federal Police (1998) 160 ALR 469 at 473; Commissioner of the Police Service v Nirta [2002] 1 Qd R 364 at 368-9; Goldberg and Anor v Ng and Ors (1995) 132 ALR 57 at 68. 23 Saunders concerned a claim for privilege in respect of documents seized by the AFP as part of an ongoing investigation into the taxation affairs of the applicant. It had been submitted by the AFP in that case that because the applicant failed to claim privilege at the time of the execution of the warrant, he had impliedly waived privilege over the seized documents. In that case, the AFP relied on observations of Mason J in Baker v Campbell at 80 to the effect that the authorities seemed to suggest that privilege was lost as soon as a document passed into the hands of another who may tender it in evidence. French J in Saunders said of these observations at 473: 'With respect, these observations of the majority in Baker v Campbell fall a long way short of the suggestion that the seizure under warrant of a document the subject of legal professional privilege which has not been waived causes that privilege to be lost. The fact that the seizure may have occurred in circumstances in which the officer executing the warrant was unaware of the subsistence of legal professional privilege in the relevant document does not, in my opinion, lead to the conclusion that the privilege is lost.' 24 In Saunders , the applicant claimed to have indicated at the time of the execution of the warrant that he reserved his rights to challenge the lawfulness of the seizure. However in Commissioner of the Police Service v Nirta [2002] 1 Qd R 364, Mullins J held that the right to claim legal professional privilege over documents seized pursuant to a search warrant was not lost because a claim was not made at the time of seizure. Mullins J noted two relevant factors: firstly, that the respondent had been wrongfully informed that he could not contact the solicitors who were acting for him; and secondly, that the claim for privilege was made at the first available opportunity after having spoken with the solicitor acting for him.


case_outcome: applied

case_title: Spedley Security Ltd (in liq) v Bank of New Zealand (1991) 26 NSWLR 711

case_text: It is clear nonetheless that the failure to claim privilege can in some circumstances constitute a waiver of privilege. In Spedley Securities Ltd (in liq) v Bank of New Zealand (1991) 26 NSWLR 711 Cole J found that the respondent had waived legal professional privilege because it had failed to make a claim when it knew that a document had been in the hands of the Registrar of the Court, and possibly in the hands of a third party, for a period of twelve days. Cole J observed at 730: 'There seems to me to be no reason in principle why a party may not, by conduct, waive legal professional privilege by omitting to claim that privilege when it is available. There is no distinction in principle between failure to claim legal professional privilege for a document by including it in a list of documents discovered and available for inspection, without claiming legal professional privilege, and on the other hand sitting by and allowing use of the document already in the hands of the other party without claiming legal professional privilege, or omitting to take steps to claim legal professional privilege in respect of the document known to be in the hands of the court, or as here, the liquidator, which it was obviously intended to use. Each constitutes an implicit waiver because it constitutes an abandonment of the claim for protection (regarding abandonment see Attorney-General for the Northern Territory v Maurice (at 498) per Dawson J).' 26 The claimed waiver in the present case relates to documents seized pursuant to two different search warrants which were executed some months apart. The first search warrant was executed on the Concord premises several months before the documents which are the subject of the present application were seized from Dimocks. The second search warrant was executed on the Rosebery premises several months after the Dimocks documents were seized. Different considerations may apply to the documents seized in each of these two searches, and in my opinion it is appropriate that they be considered separately. 27 The warrant at the Concord premises was executed on 20 May 2005 at which time documents 1(b), 1(d), 1(i) and 1(m) were seized. The applicant made no claim for legal professional privilege in relation to those documents at that time or subsequently. In fact, the applicant has never made a claim for legal professional privilege specifically in relation to the documents seized on 20 May 2005. Rather, the claim is made in respect of the documents seized from Dimocks. 28 The search of Dimocks occurred on 11 November 2005, almost six months after the Concord premises had been searched. Mr Dimock made a claim for legal professional privilege at the time of the search and on 18 November 2005, these proceedings were commenced. However, in the preceding six months, the applicant had made no claim for legal professional privilege in respect of the Concord documents, several of which were identical to the Dimocks documents. 29 The applicant submits that she was unaware of her right to claim legal professional privilege. She points out that a copy of the document outlining the right to claim legal professional privilege was given to her husband, but not to her. She submits also that the PSR which was completed in relation to the Concord search did not describe the documents sufficiently, such that it was not clear that the documents seized were documents to which privilege was likely to attach. She submits that in these circumstances, the fact that she took no action to assert a claim for privilege was not inconsistent with the continuance of the privilege. 42 In my opinion, that conduct is inconsistent with the continuation of privilege in the documents seized. I recognise that the right to maintain the confidentiality of legal advice attaches to the applicant rather than to her legal advisor: see Mann v Carnell at [28]. However, in this case, the applicant had instructed Mr O'Brien to advise her in relation to the privilege claim. Mr O'Brien, having knowledge of the seized documents from both Dimocks and the Rosebery premises, did not make a claim for privilege on her behalf. The fact that the documents were being held pending a claim for privilege was drawn to his attention by the facsimile from the AFP. He did not then make a claim for legal professional privilege and accordingly abandoned Robert Norman's claim for privilege. The situation is analogous to that considered by the Supreme Court of New South Wales in Spedley , where Cole J observed at 729: '... I am of the opinion that the conduct of Bank of New Zealand in sitting by with knowledge [that material to which a claim for privilege could be made was being used] ... and yet taking no steps to make a claim of privilege on behalf of Bank of New Zealand ... does constitute waiver of legal professional privilege. Messrs Freehill Hollingdale & Page were advising Bank of New Zealand regarding the $25 million claim. Litigation obviously was a possibility, if not a probability. In those circumstances a solicitor is "the agent of his client in all matters that may reasonably be expected to arise for decision in the cause" (per Denning LJ in Griffiths v Evans [1953] 1 WLR 1424 at 1431 ...).'


case_text: In addition to that material, Mr Stokoe seeks to give evidence about what he says would have happened. I will come to the form of the paragraphs in a moment, but let me put one matter to one side. It was initially said that this was not opinion evidence but, rather, evidence of fact in a hypothetical state of affairs, and some reliance was initially placed on cases such as Hughes Aircraft Systems v Airservices Australia (No 3) (1997) 80 FCR 276 and Allstate Life Insurance Co v ANZ Banking Group Ltd (No 28) (1996) 64 FCR 55. That contention was, correctly in my view, not pressed. The evidence is not evidence of a person stating what her or his state of mind would have been had another event occurred, thereby identifying, in a sense, a true potential or nascent state of mind at the time. It is not the identification of a personal reaction to a state of affairs which might arise in either a negligent or fraudulent representation case or a case under s 52 of the Trade Practices Act 1974 (Cth), or a case otherwise dealing with state of mind such as estoppel. Nor is it a case about what an individual has been caused to do. Rather, it is an attempt to say what customers in the market would have done in an alternative world hypothesis. It was put by Mr Catterns in submission that this was not state of mind, but existing market trends. I think the distinction is elusive, or really non-existent.


case_text: Though the two courts have been dealing with different Evidence Acts, they are in relevantly identical form and spring from the same exercise of law reform conducted in the 1990s. Therefore, they can be seen as coordinate pieces of legislation that were attempts at national legislation, which have failed to obtain universal approval. Nevertheless, they are statutes which are in relatively the same form, springing from the same source and, ordinarily, one would expect a body of coordinate jurisprudence on them conformable with such cases as Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15 ; (1993) 177 CLR 485.


case_text: In BHP Billiton Iron Ore v National Competition Council (2007) 162 FCR 234, the Full Court of this Court once again returned to the issue. At [185] in the reasons of Greenwood J, with which Sundberg J agreed, his Honour dealt with the whole question of expert evidence as follows: The appellants contend on appeal that the evidence of the economic experts is inadmissible as irrelevant. The evidence was admitted on the basis of contextual elaboration of the extrinsic material. The evidence is relevant if it is evidence that if accepted could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding ( Evidence Act 1995 (Cth), s 55(1)). Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed (s 76(1)) although, if a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge (s 79). The normal role of an expert is to give an opinion based on clearly identified facts ( Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 ; (2001) 52 NSWLR 705), almost invariably assumed to be the facts, on the footing that those facts provide a proper foundation for an opinion within the demonstrated discipline or field of specialised knowledge of the expert witness. Although s 79 of the Evidence Act seems to operate on the footing that the opinion of a person wholly or substantially based on specialised knowledge is not precluded by s 76(1) in the absence of proven foundation facts ( Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 [10]; Neowarra v Western Australia (No. 1) [2003] FCA 1399 ; (2003) 134 FCR 208), little or no weight will be given to such an opinion ( Ramsay v Watson [1961] HCA 65 ; (1961) 108 CLR 642) although the central point may simply be the question of admissibility, not weight ( HG v R [1999] HCA 2 ; (1999) 197 CLR 414 at [39] [44]; Trade Practices Commission v Arnott's Ltd (No. 5) (1990) 21 FCR 324 at 327-330). That question does not arise here. In this case, the experts did not seek to offer an economic opinion related to disputed or undisputed facts probative of a matter in issue. They sought to offer an historical or contextual explanation as an elaboration of extrinsic material going to Part IIIA of the Act. It is difficult to see how that evidence is truly admissible except perhaps in that unusual category of 'expert non-opinion evidence' descriptive of a relevant element of the economic discipline concerning the evolution of economic concepts of access to natural monopoly infrastructure, without offering any opinion about facts in issue. In any event, the material is capable of being received by the court and considered by force of Order 10, rule 1(2)(j) of the Federal Court Rules , by way of a submission rather than admissible evidence.


case_text: In one sense, it goes without saying that he cannot say what any particular individual person would have done on a particular day. However, the evidence of the kind permitted in Red Bull 55 IPR 354, and also dealt with with a degree of generosity in Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397, indicates that evidence in which an expert, who has some specialised knowledge which equips him or her to say something about how consumers will behave, is not inadmissible in limine as not being capable of being the subject of expert evidence.


case_text: That leads to the next basis of objection, that there has not been laid out a sufficient body of reasoning and assumptions to ground the admissible reception of the evidence. It is necessary to be clear about the legal framework in which I am dealing with this question. I begin with the judgment which I wrote in 2003, not because of any reason other than that it is a convenient starting point. In Evans Deakin Pty Ltd v Sebel Furniture Ltd [2003] FCA 171 , at [68] and following, I said some things about expert evidence. It is important to understand the context of what I wrote, as it is always important to understand the context of the reasons of judges. As can be seen from a discussion of the subject of the objection in that case (and once again with respect to the author of it, who is identified in that case) the expert report was a complete muddle of fact, assertion and opinion that was grounded in common sense only, if that, and with some very minor body of expert opinion sprinkled through over 300 paragraphs. It reflected a trend which is, probably since Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 ; (2001) 52 NSWLR 705 and HG v The Queen [1999] HCA 2 ; (1999) 197 CLR 414 and other cases, somewhat on the wane, of throwing together litigation support reports and tendering them to judges on the basis that the discursive opinions of former auditors and accountants about how damages should be assessed in any particular case should be given weight. That was what I was dealing with: It was that kind of muddled interweaving of argument, fact and assumption with any relevant accounting expertise camouflaged to the point of being unfathomable. This is a somewhat different case. The affidavit of Mr Stokoe does not suffer from that kind of admixture of material, and it was in that context that I said what I did, and from a full reading of HG v The Queen [1999] HCA 2 ; 197 CLR 414, though not a commercial case, it can be seen that it was that very kind of context and problem that the Chief Justice was dealing with in the clear language which he used in that case. 29 Having identified what I was dealing with in Evans Deakin [2003] FCA 171 , it is necessary to say something which was not necessary to say in Evans Deakin [2003] FCA 171. There is a difference, I think, which has been identified between the approach of the Court of Appeal of New South Wales and the Federal Court of Australia about, in effect, the existence of a basis rule for the application under s 79 of the Evidence Act 1995 (Cth).


case_text: That leads to the next basis of objection, that there has not been laid out a sufficient body of reasoning and assumptions to ground the admissible reception of the evidence. It is necessary to be clear about the legal framework in which I am dealing with this question. I begin with the judgment which I wrote in 2003, not because of any reason other than that it is a convenient starting point. In Evans Deakin Pty Ltd v Sebel Furniture Ltd [2003] FCA 171 , at [68] and following, I said some things about expert evidence. It is important to understand the context of what I wrote, as it is always important to understand the context of the reasons of judges. As can be seen from a discussion of the subject of the objection in that case (and once again with respect to the author of it, who is identified in that case) the expert report was a complete muddle of fact, assertion and opinion that was grounded in common sense only, if that, and with some very minor body of expert opinion sprinkled through over 300 paragraphs. It reflected a trend which is, probably since Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 ; (2001) 52 NSWLR 705 and HG v The Queen [1999] HCA 2 ; (1999) 197 CLR 414 and other cases, somewhat on the wane, of throwing together litigation support reports and tendering them to judges on the basis that the discursive opinions of former auditors and accountants about how damages should be assessed in any particular case should be given weight. That was what I was dealing with: It was that kind of muddled interweaving of argument, fact and assumption with any relevant accounting expertise camouflaged to the point of being unfathomable. This is a somewhat different case. The affidavit of Mr Stokoe does not suffer from that kind of admixture of material, and it was in that context that I said what I did, and from a full reading of HG v The Queen [1999] HCA 2 ; 197 CLR 414, though not a commercial case, it can be seen that it was that very kind of context and problem that the Chief Justice was dealing with in the clear language which he used in that case. 36 Heydon JA, in, if I may respectfully say so, a long and careful judgment, examined matters of expert evidence by way of general principle, as well as the particular evidence in the case before him. The most oft-cited paragraph in relation to the matter with which I am dealing is [85]. In the previous paragraph, his Honour had cited relevant passages from HG v The Queen [1999] HCA 2 ; 197 CLR 414 from the judgment of Gleeson CJ, which it is unnecessary to set out. In [85], Heydon JA said the following: In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v The Queen (at 428 [41],) on "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise. 42 In BHP Billiton Iron Ore v National Competition Council (2007) 162 FCR 234, the Full Court of this Court once again returned to the issue. At [185] in the reasons of Greenwood J, with which Sundberg J agreed, his Honour dealt with the whole question of expert evidence as follows: The appellants contend on appeal that the evidence of the economic experts is inadmissible as irrelevant. The evidence was admitted on the basis of contextual elaboration of the extrinsic material. The evidence is relevant if it is evidence that if accepted could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding ( Evidence Act 1995 (Cth), s 55(1)). Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed (s 76(1)) although, if a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge (s 79). The normal role of an expert is to give an opinion based on clearly identified facts ( Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 ; (2001) 52 NSWLR 705), almost invariably assumed to be the facts, on the footing that those facts provide a proper foundation for an opinion within the demonstrated discipline or field of specialised knowledge of the expert witness. Although s 79 of the Evidence Act seems to operate on the footing that the opinion of a person wholly or substantially based on specialised knowledge is not precluded by s 76(1) in the absence of proven foundation facts ( Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 [10]; Neowarra v Western Australia (No. 1) [2003] FCA 1399 ; (2003) 134 FCR 208), little or no weight will be given to such an opinion ( Ramsay v Watson [1961] HCA 65 ; (1961) 108 CLR 642) although the central point may simply be the question of admissibility, not weight ( HG v R [1999] HCA 2 ; (1999) 197 CLR 414 at [39] [44]; Trade Practices Commission v Arnott's Ltd (No. 5) (1990) 21 FCR 324 at 327-330). That question does not arise here. In this case, the experts did not seek to offer an economic opinion related to disputed or undisputed facts probative of a matter in issue. They sought to offer an historical or contextual explanation as an elaboration of extrinsic material going to Part IIIA of the Act. It is difficult to see how that evidence is truly admissible except perhaps in that unusual category of 'expert non-opinion evidence' descriptive of a relevant element of the economic discipline concerning the evolution of economic concepts of access to natural monopoly infrastructure, without offering any opinion about facts in issue. In any event, the material is capable of being received by the court and considered by force of Order 10, rule 1(2)(j) of the Federal Court Rules , by way of a submission rather than admissible evidence.


case_title: Hughes Aircraft Systems v Airservices Australia (No 3) (1997) 80 FCR 276


case_text: That leads to the next basis of objection, that there has not been laid out a sufficient body of reasoning and assumptions to ground the admissible reception of the evidence. It is necessary to be clear about the legal framework in which I am dealing with this question. I begin with the judgment which I wrote in 2003, not because of any reason other than that it is a convenient starting point. In Evans Deakin Pty Ltd v Sebel Furniture Ltd [2003] FCA 171 , at [68] and following, I said some things about expert evidence. It is important to understand the context of what I wrote, as it is always important to understand the context of the reasons of judges. As can be seen from a discussion of the subject of the objection in that case (and once again with respect to the author of it, who is identified in that case) the expert report was a complete muddle of fact, assertion and opinion that was grounded in common sense only, if that, and with some very minor body of expert opinion sprinkled through over 300 paragraphs. It reflected a trend which is, probably since Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 ; (2001) 52 NSWLR 705 and HG v The Queen [1999] HCA 2 ; (1999) 197 CLR 414 and other cases, somewhat on the wane, of throwing together litigation support reports and tendering them to judges on the basis that the discursive opinions of former auditors and accountants about how damages should be assessed in any particular case should be given weight. That was what I was dealing with: It was that kind of muddled interweaving of argument, fact and assumption with any relevant accounting expertise camouflaged to the point of being unfathomable. This is a somewhat different case. The affidavit of Mr Stokoe does not suffer from that kind of admixture of material, and it was in that context that I said what I did, and from a full reading of HG v The Queen [1999] HCA 2 ; 197 CLR 414, though not a commercial case, it can be seen that it was that very kind of context and problem that the Chief Justice was dealing with in the clear language which he used in that case. 33 In Ocean Marine Mutual Insurance Association v Jetopay [2000] FCA 1463 ; (2000) 120 FCR 146, the Full Court of the Federal Court dealt with the question of the content of an expert report. The matter is conveniently dealt with in Makita [2001] NSWCA 305 ; 52 NSWLR 705, at [86] in which [21], [22] and [23] of the judgment of Black CJ and Cooper and Emmett JJ in Jetopay are set out. Those paragraphs are in the following terms: 21. The primary judge considered that it was permissible to examine the reports and draw inferences from the form and contents of them. His Honour considered that it was permissible to take into account: • the factual context in which a report was produced; • the description and designation of the person making the report; • the contents and language of the report and the nature of the assertions made in it; • the form of the report; • the expressed qualifications of the person making it as set out in the report. 22. However, it is not permissible to conclude from those matters alone that an author of a report has any specialised knowledge, except to the extent that the report states (or it otherwise appears from admissible evidence) what that knowledge is. Nor is it permissible, by reason of those matters alone, to conclude that any specialised knowledge that the author of a report has is based on any training, study or experience of the author. Thus, it is not permissible to conclude, simply because a person expresses an opinion on a particular subject, referring to particular technology, that that person has any specialised knowledge in relation to that subject. There must be specific evidence as to specialised knowledge of the person in relation to that subject and as to the training, study or experience upon which that specialised knowledge is based. 23. The further requirement that an opinion be based on specialised knowledge would normally be satisfied by the person who expresses the opinion demonstrating the reasoning process by which the opinion was reached. Thus, a report in which an opinion is recorded should expose the reasoning of its author in a way that would demonstrate that the opinion is based on particular specialised knowledge. Similarly, opinion evidence given orally should be shown, by exposure of the reasoning process, to be based on relevant specialised knowledge. [emphasis in original] 35 In 2001, the New South Wales Court of Appeal in Makita [2001] NSWCA 305 ; 52 NSWLR 705 dealt with the question of the admissibility of expert evidence. Relevantly, Priestley JA expressed his conclusions at page 707 in short form. His Honour agreed with the orders proposed by Heydon JA (as his Honour then was). Powell JA dealt with the expert evidence in his own way, by examining the expert evidence and concluding that as to the value which might properly be attributed to Professor Morton's report, he was led to the conclusion that the respondent at the trial failed to make out an essential element, namely, that the stairs were slippery. Powell JA also agreed with the orders of Heydon JA. 38 The matter then returned to the Federal Court in Red Bull 55 IPR 354. Makita [2001] NSWCA 305 ; 52 NSWLR 705 was the subject of consideration by the Full Court. There were two judgments, one of Branson J, the other of Weinberg and Dowsett JJ. Branson J reiterated her views in Quick v Stoland 87 FCR 371, and in [14]-[17] made the following relevant comments upon Makita : 14. However, if Heydon JA, in the paragraph set out in [6] above, intended to use the word "sure" in its usual sense of subjectively certain, I respectfully disagree with the view that when determining the admissibility of evidence of an expert opinion (perhaps more accurately, a purported expert opinion), it is necessary for the court to be " sure whether the opinion is based wholly or substantially on the expert's specialised knowledge ". The test is whether the court is satisfied on the balance of probabilities that the opinion is based wholly or substantially on that knowledge (s 142 of the Evidence Act ). However, as identified in [12] above, satisfaction of that test is not sufficient to render the evidence of the expert opinion admissible. To be admissible the evidence must also be relevant. It is the requirement of relevance, rather than the requirement that the opinion be based wholly or substantially on the expert's specialist knowledge, that, as it seems to me, most immediately makes proof of the facts on which the opinion is based necessary. If those facts are not at the close of trial proved, or substantially proved (see Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58 ; (1985) 59 ALJR 844 at 846), it is unlikely that the evidence, if accepted, could rationally affect the assessment of the probability of the existence of the fact in issue in the proceeding to which the evidence is directed. 15. A ruling on the admissibility of the evidence of the expert opinion is, however, likely to be required before the end of the trial. The possibility that a determination of relevance might need to be made before the court has made other relevant findings is recognised by s 57 of the Evidence Act . Section 57(1) provides: "(1) If the determination of the question whether evidence adduced by a party is relevant depends on the court making another finding (including a finding that the evidence is what the party claims it to be), the court may find that the evidence is relevant: (a) if it is reasonably open to make that finding; or (b) subject to further evidence being admitted at a later stage of the proceeding that will make it reasonably open to make that finding." Section 57(1)(b) would appear to authorise the admission unconditionally of provisionally admitted evidence on a standard of proof concerning relevance (ie where it is reasonably open to make the finding) which is even lower than the balance of probabilities. 16. Further, the requirement that an expert opinion be wholly or substantially based on the witness's specialised knowledge is not, in my view, intended to require a trial judge to give meticulous consideration, before ruling on the admissibility of the evidence of the opinion, to whether the facts on which the opinion is based form a proper (in the sense of logically or scientifically or intellectually proper) base for the opinion. Were the position otherwise the smooth running of trials involving expert evidence could be expected to be interrupted by the need to explore in detail, in the context of admissibility, matters more properly considered at the end of the trial in the context of the weight to be attributed to the evidence. It is sufficient for admissibility, in my view, that the trial judge is satisfied on the balance of probabilities on the evidence and other material then before the judge that the expert has drawn his or her opinion from known or assumed facts by reference wholly or substantially to his or her specialised knowledge. In many cases the relevant evidence and other material that will be before the judge at the time that the judge is required to rule on admissibility will extend little, if at all, beyond the purported expert's affidavit or report or, where only oral evidence is intended to be adduced, the earlier oral evidence of the witness and the form of the question to which objection has been taken. In the Federal Court, the usual practice of requiring expert evidence to be reduced to writing, together with the Guidelines for Expert Witnesses referred to in [13] above, will generally ensure that there is sufficient material before the judge to enable the judge to form a view, on the balance of probabilities, (albeit, in the context of the trial as a whole, a provisional view) as to whether an opinion is wholly or substantially based on the witness's specialised knowledge. In most other jurisdictions there are now comparable equivalent rules or guidelines. 17. Evidence later adduced, most likely in cross-examination, might reveal that an opinion proffered in an affidavit or report is not wholly or substantially based on the witness's specialised knowledge, or that the expert made an error (whether of logic, science or otherwise) in the process of reaching his or her opinion. While that evidence might be relevant to admissibility in a hypothetical sense, it would not, of itself, demonstrate error in the earlier ruling that the affidavit or report be received in evidence. The correctness of that ruling is to be judged by reference to the relevant evidence and other material before the judge at the time of the ruling. The evidence might, however, be of crucial importance with respect to the weight to be accorded the opinion at the end of the day. 39 Weinberg and Dowsett JJ also addressed the question of Makita [2001] NSWCA 305 ; 52 NSWLR 705 from [84] and following in the section of their judgment dealing with the admissibility of Dr Beaton and Ms Strachan's evidence. It should be said that in Red Bull 55 IPR 354, the matter was different from that which lies before me here, in that the evidence, unlike the evidence today, went in at trial without objection. 40 In the helpful judgment, if I may respectfully say so, of Sundberg J in Neowarra v State of Western Australia [2003] FCA 1399 ; (2003) 134 FCR 208, his Honour discussed the course of this authority under the heading "The Basis Rule". He concluded from these authorities that the basis rule does not feature in section 79 of the Evidence Act , and cites and follows, as his Honour was required to, and as I am required to, the Full Court authority of this Court in Quick 87 FCR 371 and Red Bull 55 IPR 354. His Honour noted the views of Heydon JA in Makita [2001] NSWCA 305 ; 52 NSWLR 705 [85] and the views of the Full Court in Red Bull 55 IPR 354. The reality is that, subject to one matter to which I will come, if there be any difference, as I think, strictly speaking, there is, between the approach taken by Heydon JA in the Court of Appeal and the Full Court of this Court, I must follow the Full Court of this Court. 41 In Australian Securities and Investments Commission v Rich (2005) 54 ACSR 326 at [85] [137], Spigelman CJ dealt with the issue. The Chief Justice discussed, but did not disagree with, the approach of Heydon JA in Makita . 42 In BHP Billiton Iron Ore v National Competition Council (2007) 162 FCR 234, the Full Court of this Court once again returned to the issue. At [185] in the reasons of Greenwood J, with which Sundberg J agreed, his Honour dealt with the whole question of expert evidence as follows: The appellants contend on appeal that the evidence of the economic experts is inadmissible as irrelevant. The evidence was admitted on the basis of contextual elaboration of the extrinsic material. The evidence is relevant if it is evidence that if accepted could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding ( Evidence Act 1995 (Cth), s 55(1)). Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed (s 76(1)) although, if a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge (s 79). The normal role of an expert is to give an opinion based on clearly identified facts ( Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 ; (2001) 52 NSWLR 705), almost invariably assumed to be the facts, on the footing that those facts provide a proper foundation for an opinion within the demonstrated discipline or field of specialised knowledge of the expert witness. Although s 79 of the Evidence Act seems to operate on the footing that the opinion of a person wholly or substantially based on specialised knowledge is not precluded by s 76(1) in the absence of proven foundation facts ( Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 [10]; Neowarra v Western Australia (No. 1) [2003] FCA 1399 ; (2003) 134 FCR 208), little or no weight will be given to such an opinion ( Ramsay v Watson [1961] HCA 65 ; (1961) 108 CLR 642) although the central point may simply be the question of admissibility, not weight ( HG v R [1999] HCA 2 ; (1999) 197 CLR 414 at [39] [44]; Trade Practices Commission v Arnott's Ltd (No. 5) (1990) 21 FCR 324 at 327-330). That question does not arise here. In this case, the experts did not seek to offer an economic opinion related to disputed or undisputed facts probative of a matter in issue. They sought to offer an historical or contextual explanation as an elaboration of extrinsic material going to Part IIIA of the Act. It is difficult to see how that evidence is truly admissible except perhaps in that unusual category of 'expert non-opinion evidence' descriptive of a relevant element of the economic discipline concerning the evolution of economic concepts of access to natural monopoly infrastructure, without offering any opinion about facts in issue. In any event, the material is capable of being received by the court and considered by force of Order 10, rule 1(2)(j) of the Federal Court Rules , by way of a submission rather than admissible evidence. 44 Whether or not the reasoning is fully and completely expressed, in my view, is debatable. Mr Catterns put the proposition that he had satisfied even the Makita [2001] NSWCA 305 ; 52 NSWLR 705 test. I am not prepared to accede to that, but for present purposes it probably does not matter. The weight that ultimately will be given to this opinion, in circumstances where the respondent calls people who were actively involved in decisions to buy particular goods in the relevant period, who give evidence as to what they would have done, faced with the choice in question, may be another matter. However, in my view, looking at the material in the whole of the context of the affidavit, I am satisfied that the opinions given are ones that can legitimately be given from a base of specialised knowledge that Mr Stokoe has and thus are admissible. 45 The question then arises, based on all the material that has been argued, as to whether I should reject the evidence based on s 135 of the Evidence Act , which is in the following terms: The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing; or (c) cause or result in undue waste of time. 46 This is not, as I said earlier, a case of hopelessly muddled or confused evidence where parties have no idea where to start in relation to the admixture of fact, opinion and assertion. It seems to me fairly plain from Mr Stokoe's evidence that he is putting the proposition that, faced with the advantages of his company's invention, the vast majority of customers would have been driven to the choice of the Gambro machine. Whether or not that opinion is likely to withstand the winds of cross-examination is something that will need to await the cross-examination. However, I think the reasoning process is tolerably clear; whether it is tolerably adequate in terms of the acceptance of the proposition that Mr Stokoe is seeking to put may be another.


case_text: In Ocean Marine Mutual Insurance Association v Jetopay [2000] FCA 1463 ; (2000) 120 FCR 146, the Full Court of the Federal Court dealt with the question of the content of an expert report. The matter is conveniently dealt with in Makita [2001] NSWCA 305 ; 52 NSWLR 705, at [86] in which [21], [22] and [23] of the judgment of Black CJ and Cooper and Emmett JJ in Jetopay are set out. Those paragraphs are in the following terms: 21. The primary judge considered that it was permissible to examine the reports and draw inferences from the form and contents of them. His Honour considered that it was permissible to take into account: • the factual context in which a report was produced; • the description and designation of the person making the report; • the contents and language of the report and the nature of the assertions made in it; • the form of the report; • the expressed qualifications of the person making it as set out in the report. 22. However, it is not permissible to conclude from those matters alone that an author of a report has any specialised knowledge, except to the extent that the report states (or it otherwise appears from admissible evidence) what that knowledge is. Nor is it permissible, by reason of those matters alone, to conclude that any specialised knowledge that the author of a report has is based on any training, study or experience of the author. Thus, it is not permissible to conclude, simply because a person expresses an opinion on a particular subject, referring to particular technology, that that person has any specialised knowledge in relation to that subject. There must be specific evidence as to specialised knowledge of the person in relation to that subject and as to the training, study or experience upon which that specialised knowledge is based. 23. The further requirement that an opinion be based on specialised knowledge would normally be satisfied by the person who expresses the opinion demonstrating the reasoning process by which the opinion was reached. Thus, a report in which an opinion is recorded should expose the reasoning of its author in a way that would demonstrate that the opinion is based on particular specialised knowledge. Similarly, opinion evidence given orally should be shown, by exposure of the reasoning process, to be based on relevant specialised knowledge. [emphasis in original] 34 Jetopay [2000] FCA 1463 ; 120 FCR 146, as those paragraphs identify, was concerned with the necessity to understand from the form and text of the evidence that the opinion being proffered was based on specialised knowledge. The case is not authority for anything further. 37 His Honour went on to refer to [21] to [23] of the reasons of the Full Court in Jetopay [2000] FCA 1463 ; 120 FCR 146. His Honour was apparently not referred to the decision of the Full Court of the Federal Court in Quick v Stoland 87 FCR 391. His Honour did not deal with it. However, it is fair to say that the views expressed by his Honour in [85] are contrary to those expressed by Branson J in Quick v Stoland 87 FCR 391 and, as I read Emmett J's judgment, to Emmett J's views as well.


case_text: The first case which dealt with the question of the basis rule was a Full Court decision of this court in Quick v Stoland Pty Ltd (1998) 87 FCR 371. In that case, Branson J, with whose opinions on the structure of the Evidence Act 1995 (Cth) Emmett J agreed, expressed the view that the opinion rule, qualified it as it is in section 79 of the Evidence Act , did not incorporate the common law rule that the admissibility of expert opinion depends upon proper disclosure and proof of the factual basis of the opinion. Her Honour went on to identify that this was not an accidental omission, and that paragraph 750 of the ALRC Report No 26, volume 1 (the Interim Evidence Report) dealt with the matter expressly. 32 I should add at this point, without seeking in any way to be controversial, in particular given the debate between intermediate appellate courts, that the practice, at least in some courts in land and valuation matters in years past, can be seen not to have required a full discussion of the reasoning in valuation cases. But valuation cases may be specialised creatures of their own and I do not need to dwell on them for those reasons. 37 His Honour went on to refer to [21] to [23] of the reasons of the Full Court in Jetopay [2000] FCA 1463 ; 120 FCR 146. His Honour was apparently not referred to the decision of the Full Court of the Federal Court in Quick v Stoland 87 FCR 391. His Honour did not deal with it. However, it is fair to say that the views expressed by his Honour in [85] are contrary to those expressed by Branson J in Quick v Stoland 87 FCR 391 and, as I read Emmett J's judgment, to Emmett J's views as well. 38 The matter then returned to the Federal Court in Red Bull 55 IPR 354. Makita [2001] NSWCA 305 ; 52 NSWLR 705 was the subject of consideration by the Full Court. There were two judgments, one of Branson J, the other of Weinberg and Dowsett JJ. Branson J reiterated her views in Quick v Stoland 87 FCR 371, and in [14]-[17] made the following relevant comments upon Makita : 14. However, if Heydon JA, in the paragraph set out in [6] above, intended to use the word "sure" in its usual sense of subjectively certain, I respectfully disagree with the view that when determining the admissibility of evidence of an expert opinion (perhaps more accurately, a purported expert opinion), it is necessary for the court to be " sure whether the opinion is based wholly or substantially on the expert's specialised knowledge ". The test is whether the court is satisfied on the balance of probabilities that the opinion is based wholly or substantially on that knowledge (s 142 of the Evidence Act ). However, as identified in [12] above, satisfaction of that test is not sufficient to render the evidence of the expert opinion admissible. To be admissible the evidence must also be relevant. It is the requirement of relevance, rather than the requirement that the opinion be based wholly or substantially on the expert's specialist knowledge, that, as it seems to me, most immediately makes proof of the facts on which the opinion is based necessary. If those facts are not at the close of trial proved, or substantially proved (see Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58 ; (1985) 59 ALJR 844 at 846), it is unlikely that the evidence, if accepted, could rationally affect the assessment of the probability of the existence of the fact in issue in the proceeding to which the evidence is directed. 15. A ruling on the admissibility of the evidence of the expert opinion is, however, likely to be required before the end of the trial. The possibility that a determination of relevance might need to be made before the court has made other relevant findings is recognised by s 57 of the Evidence Act . Section 57(1) provides: "(1) If the determination of the question whether evidence adduced by a party is relevant depends on the court making another finding (including a finding that the evidence is what the party claims it to be), the court may find that the evidence is relevant: (a) if it is reasonably open to make that finding; or (b) subject to further evidence being admitted at a later stage of the proceeding that will make it reasonably open to make that finding." Section 57(1)(b) would appear to authorise the admission unconditionally of provisionally admitted evidence on a standard of proof concerning relevance (ie where it is reasonably open to make the finding) which is even lower than the balance of probabilities. 16. Further, the requirement that an expert opinion be wholly or substantially based on the witness's specialised knowledge is not, in my view, intended to require a trial judge to give meticulous consideration, before ruling on the admissibility of the evidence of the opinion, to whether the facts on which the opinion is based form a proper (in the sense of logically or scientifically or intellectually proper) base for the opinion. Were the position otherwise the smooth running of trials involving expert evidence could be expected to be interrupted by the need to explore in detail, in the context of admissibility, matters more properly considered at the end of the trial in the context of the weight to be attributed to the evidence. It is sufficient for admissibility, in my view, that the trial judge is satisfied on the balance of probabilities on the evidence and other material then before the judge that the expert has drawn his or her opinion from known or assumed facts by reference wholly or substantially to his or her specialised knowledge. In many cases the relevant evidence and other material that will be before the judge at the time that the judge is required to rule on admissibility will extend little, if at all, beyond the purported expert's affidavit or report or, where only oral evidence is intended to be adduced, the earlier oral evidence of the witness and the form of the question to which objection has been taken. In the Federal Court, the usual practice of requiring expert evidence to be reduced to writing, together with the Guidelines for Expert Witnesses referred to in [13] above, will generally ensure that there is sufficient material before the judge to enable the judge to form a view, on the balance of probabilities, (albeit, in the context of the trial as a whole, a provisional view) as to whether an opinion is wholly or substantially based on the witness's specialised knowledge. In most other jurisdictions there are now comparable equivalent rules or guidelines. 17. Evidence later adduced, most likely in cross-examination, might reveal that an opinion proffered in an affidavit or report is not wholly or substantially based on the witness's specialised knowledge, or that the expert made an error (whether of logic, science or otherwise) in the process of reaching his or her opinion. While that evidence might be relevant to admissibility in a hypothetical sense, it would not, of itself, demonstrate error in the earlier ruling that the affidavit or report be received in evidence. The correctness of that ruling is to be judged by reference to the relevant evidence and other material before the judge at the time of the ruling. The evidence might, however, be of crucial importance with respect to the weight to be accorded the opinion at the end of the day. 40 In the helpful judgment, if I may respectfully say so, of Sundberg J in Neowarra v State of Western Australia [2003] FCA 1399 ; (2003) 134 FCR 208, his Honour discussed the course of this authority under the heading "The Basis Rule". He concluded from these authorities that the basis rule does not feature in section 79 of the Evidence Act , and cites and follows, as his Honour was required to, and as I am required to, the Full Court authority of this Court in Quick 87 FCR 371 and Red Bull 55 IPR 354. His Honour noted the views of Heydon JA in Makita [2001] NSWCA 305 ; 52 NSWLR 705 [85] and the views of the Full Court in Red Bull 55 IPR 354. The reality is that, subject to one matter to which I will come, if there be any difference, as I think, strictly speaking, there is, between the approach taken by Heydon JA in the Court of Appeal and the Full Court of this Court, I must follow the Full Court of this Court.


case_text: The issue is, I think, whether Mr Stokoe, with his experience, can say what he does about how the customers in the market would have reacted to a posited choice of dry or liquid Part B in the respective dialysis systems. Mr Stokoe does not speak from the perspective of a psychologist or market research expert of the kind discussed by the Full Court of this Court in Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354. However, notwithstanding the fact that he does not have Dr Beaton's or Ms Strachan's background, he does, on the evidence to date, have nearly 30 years of working in the specialised and particularised market, being familiar not only with the machines, but also with the participants and their purchasing in the market. 24 In one sense, it goes without saying that he cannot say what any particular individual person would have done on a particular day. However, the evidence of the kind permitted in Red Bull 55 IPR 354, and also dealt with with a degree of generosity in Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397, indicates that evidence in which an expert, who has some specialised knowledge which equips him or her to say something about how consumers will behave, is not inadmissible in limine as not being capable of being the subject of expert evidence. 38 The matter then returned to the Federal Court in Red Bull 55 IPR 354. Makita [2001] NSWCA 305 ; 52 NSWLR 705 was the subject of consideration by the Full Court. There were two judgments, one of Branson J, the other of Weinberg and Dowsett JJ. Branson J reiterated her views in Quick v Stoland 87 FCR 371, and in [14]-[17] made the following relevant comments upon Makita : 14. However, if Heydon JA, in the paragraph set out in [6] above, intended to use the word "sure" in its usual sense of subjectively certain, I respectfully disagree with the view that when determining the admissibility of evidence of an expert opinion (perhaps more accurately, a purported expert opinion), it is necessary for the court to be " sure whether the opinion is based wholly or substantially on the expert's specialised knowledge ". The test is whether the court is satisfied on the balance of probabilities that the opinion is based wholly or substantially on that knowledge (s 142 of the Evidence Act ). However, as identified in [12] above, satisfaction of that test is not sufficient to render the evidence of the expert opinion admissible. To be admissible the evidence must also be relevant. It is the requirement of relevance, rather than the requirement that the opinion be based wholly or substantially on the expert's specialist knowledge, that, as it seems to me, most immediately makes proof of the facts on which the opinion is based necessary. If those facts are not at the close of trial proved, or substantially proved (see Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58 ; (1985) 59 ALJR 844 at 846), it is unlikely that the evidence, if accepted, could rationally affect the assessment of the probability of the existence of the fact in issue in the proceeding to which the evidence is directed. 15. A ruling on the admissibility of the evidence of the expert opinion is, however, likely to be required before the end of the trial. The possibility that a determination of relevance might need to be made before the court has made other relevant findings is recognised by s 57 of the Evidence Act . Section 57(1) provides: "(1) If the determination of the question whether evidence adduced by a party is relevant depends on the court making another finding (including a finding that the evidence is what the party claims it to be), the court may find that the evidence is relevant: (a) if it is reasonably open to make that finding; or (b) subject to further evidence being admitted at a later stage of the proceeding that will make it reasonably open to make that finding." Section 57(1)(b) would appear to authorise the admission unconditionally of provisionally admitted evidence on a standard of proof concerning relevance (ie where it is reasonably open to make the finding) which is even lower than the balance of probabilities. 16. Further, the requirement that an expert opinion be wholly or substantially based on the witness's specialised knowledge is not, in my view, intended to require a trial judge to give meticulous consideration, before ruling on the admissibility of the evidence of the opinion, to whether the facts on which the opinion is based form a proper (in the sense of logically or scientifically or intellectually proper) base for the opinion. Were the position otherwise the smooth running of trials involving expert evidence could be expected to be interrupted by the need to explore in detail, in the context of admissibility, matters more properly considered at the end of the trial in the context of the weight to be attributed to the evidence. It is sufficient for admissibility, in my view, that the trial judge is satisfied on the balance of probabilities on the evidence and other material then before the judge that the expert has drawn his or her opinion from known or assumed facts by reference wholly or substantially to his or her specialised knowledge. In many cases the relevant evidence and other material that will be before the judge at the time that the judge is required to rule on admissibility will extend little, if at all, beyond the purported expert's affidavit or report or, where only oral evidence is intended to be adduced, the earlier oral evidence of the witness and the form of the question to which objection has been taken. In the Federal Court, the usual practice of requiring expert evidence to be reduced to writing, together with the Guidelines for Expert Witnesses referred to in [13] above, will generally ensure that there is sufficient material before the judge to enable the judge to form a view, on the balance of probabilities, (albeit, in the context of the trial as a whole, a provisional view) as to whether an opinion is wholly or substantially based on the witness's specialised knowledge. In most other jurisdictions there are now comparable equivalent rules or guidelines. 17. Evidence later adduced, most likely in cross-examination, might reveal that an opinion proffered in an affidavit or report is not wholly or substantially based on the witness's specialised knowledge, or that the expert made an error (whether of logic, science or otherwise) in the process of reaching his or her opinion. While that evidence might be relevant to admissibility in a hypothetical sense, it would not, of itself, demonstrate error in the earlier ruling that the affidavit or report be received in evidence. The correctness of that ruling is to be judged by reference to the relevant evidence and other material before the judge at the time of the ruling. The evidence might, however, be of crucial importance with respect to the weight to be accorded the opinion at the end of the day. 39 Weinberg and Dowsett JJ also addressed the question of Makita [2001] NSWCA 305 ; 52 NSWLR 705 from [84] and following in the section of their judgment dealing with the admissibility of Dr Beaton and Ms Strachan's evidence. It should be said that in Red Bull 55 IPR 354, the matter was different from that which lies before me here, in that the evidence, unlike the evidence today, went in at trial without objection. 40 In the helpful judgment, if I may respectfully say so, of Sundberg J in Neowarra v State of Western Australia [2003] FCA 1399 ; (2003) 134 FCR 208, his Honour discussed the course of this authority under the heading "The Basis Rule". He concluded from these authorities that the basis rule does not feature in section 79 of the Evidence Act , and cites and follows, as his Honour was required to, and as I am required to, the Full Court authority of this Court in Quick 87 FCR 371 and Red Bull 55 IPR 354. His Honour noted the views of Heydon JA in Makita [2001] NSWCA 305 ; 52 NSWLR 705 [85] and the views of the Full Court in Red Bull 55 IPR 354. The reality is that, subject to one matter to which I will come, if there be any difference, as I think, strictly speaking, there is, between the approach taken by Heydon JA in the Court of Appeal and the Full Court of this Court, I must follow the Full Court of this Court. 42 In BHP Billiton Iron Ore v National Competition Council (2007) 162 FCR 234, the Full Court of this Court once again returned to the issue. At [185] in the reasons of Greenwood J, with which Sundberg J agreed, his Honour dealt with the whole question of expert evidence as follows: The appellants contend on appeal that the evidence of the economic experts is inadmissible as irrelevant. The evidence was admitted on the basis of contextual elaboration of the extrinsic material. The evidence is relevant if it is evidence that if accepted could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding ( Evidence Act 1995 (Cth), s 55(1)). Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed (s 76(1)) although, if a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge (s 79). The normal role of an expert is to give an opinion based on clearly identified facts ( Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 ; (2001) 52 NSWLR 705), almost invariably assumed to be the facts, on the footing that those facts provide a proper foundation for an opinion within the demonstrated discipline or field of specialised knowledge of the expert witness. Although s 79 of the Evidence Act seems to operate on the footing that the opinion of a person wholly or substantially based on specialised knowledge is not precluded by s 76(1) in the absence of proven foundation facts ( Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 [10]; Neowarra v Western Australia (No. 1) [2003] FCA 1399 ; (2003) 134 FCR 208), little or no weight will be given to such an opinion ( Ramsay v Watson [1961] HCA 65 ; (1961) 108 CLR 642) although the central point may simply be the question of admissibility, not weight ( HG v R [1999] HCA 2 ; (1999) 197 CLR 414 at [39] [44]; Trade Practices Commission v Arnott's Ltd (No. 5) (1990) 21 FCR 324 at 327-330). That question does not arise here. In this case, the experts did not seek to offer an economic opinion related to disputed or undisputed facts probative of a matter in issue. They sought to offer an historical or contextual explanation as an elaboration of extrinsic material going to Part IIIA of the Act. It is difficult to see how that evidence is truly admissible except perhaps in that unusual category of 'expert non-opinion evidence' descriptive of a relevant element of the economic discipline concerning the evolution of economic concepts of access to natural monopoly infrastructure, without offering any opinion about facts in issue. In any event, the material is capable of being received by the court and considered by force of Order 10, rule 1(2)(j) of the Federal Court Rules , by way of a submission rather than admissible evidence. 43 On one reading of [185], it might be seen that some variation is being made to what was said in Red Bull 55 IPR 354. I do not think that [185] should be so read. If Greenwood J were to be intending to depart from a previous Full Court of this court, he no doubt would have expressed it himself in terms of perceived error in the earlier Full Court's reasons. He did not do so. Thus, I am left with the position that I do not judge the admissibility of this material by the quality of the reasoning underpinning its expression. I judge its admissibility by coming to the view whether the opinions are based on the relevant specialised knowledge, a conclusion which I have already reached.


case_title: Black v Minister for Immigration & Citizenship [2007] FCAFC 189 , 99 ALD 1

case_text: When considering the decision of an administrative tribunal, including the Refugee Review Tribunal, considerable caution must be exercised in construing the findings and reasons set forth in that decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. This approach has since been endorsed: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [25] , [2007] FCA 26 ; 235 ALR 609 at 617 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; Black v Minister for Immigration & Citizenship [2007] FCAFC 189 at [36] , [2007] FCAFC 189 ; 99 ALD 1 at 9.


case_text: When considering the decision of an administrative tribunal, including the Refugee Review Tribunal, considerable caution must be exercised in construing the findings and reasons set forth in that decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. This approach has since been endorsed: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [25] , [2007] FCA 26 ; 235 ALR 609 at 617 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; Black v Minister for Immigration & Citizenship [2007] FCAFC 189 at [36] , [2007] FCAFC 189 ; 99 ALD 1 at 9. 13 To construe the reasons provided by the Tribunal as involving an " inconsistency ", it is considered, would be to engage in the " over-zealous judicial review " warned against in Wu Shan Liang. See: Huttner R, Judicial Review of Refugee Decisions: The High Court's Decision in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 3 AJ Admin L 222. The reasons provided by the Tribunal adequately explain the basis upon which it proceeded. 14 The first Ground of Appeal is therefore rejected.


case_text: The findings as made by the Tribunal and extracted in the second Ground of Appeal are not " information " which could fall within s 424A(1)(a). This Ground of Appeal is more properly characterised as an impermissible challenge to the merits of the decision made by the Tribunal: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10] per Gray, Tamberlin and Lander JJ.


case_text: The present decision of the Tribunal, differently constituted, was signed on 25 October 2006 and again affirmed the delegate's decision. On 6 March 2008 the Federal Magistrates Court dismissed an application seeking review of the decision of the reconstituted Tribunal: NBDV v Minister for Immigration & Citizenship [2008] FMCA 309. 5 The Appellant now appeals to this Court. His Notice of Appeal relies upon the same two grounds as were before the Federal Magistrates Court, namely: (i) a failure on the part of the Tribunal to " consider the Applicant's refugee claims in a constructive and articulate manner because of ... contradictory findings it made during the assessment of the claims "; and (ii) a failure to comply with s 424A(1)(a) of the Migration Act 1958 (Cth). For the same reasons as were provided by the learned Federal Magistrate, neither ground is made out and the appeal is dismissed. 6 The Appellant appeared before this Court unrepresented, although he did have the assistance of an interpreter. Previously filed with the Court were written submissions signed by the Appellant and dated 12 May 2008.


case_text: Section 424A(1)(a) of the Migration Act 1958 (Cth) provides as follows: Information and invitation given in writing by Tribunal (1) Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; ... Compliance with this provision is mandatory: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 , 215 ALR 162 ; SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [13] , [2007] FCA 26 ; 235 ALR 609 at 614 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.


case_title: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 , 235 ALR 609

case_text: When considering the decision of an administrative tribunal, including the Refugee Review Tribunal, considerable caution must be exercised in construing the findings and reasons set forth in that decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. This approach has since been endorsed: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [25] , [2007] FCA 26 ; 235 ALR 609 at 617 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; Black v Minister for Immigration & Citizenship [2007] FCAFC 189 at [36] , [2007] FCAFC 189 ; 99 ALD 1 at 9. 15 Section 424A(1)(a) of the Migration Act 1958 (Cth) provides as follows: Information and invitation given in writing by Tribunal (1) Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; ... Compliance with this provision is mandatory: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 , 215 ALR 162 ; SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [13] , [2007] FCA 26 ; 235 ALR 609 at 614 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. 18 At best, it is a contention that the Appellant was entitled to be informed of the findings as proposed to be made by the Tribunal and to be afforded a further opportunity to be heard. The Appellant was not entitled to any such further opportunity. Concurrence is expressed with the reliance by the Federal Magistrate upon SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18] , [2007] FCA 26 ; 235 ALR 609 at 616 and his Honour's conclusion that such findings do not fall within s 424A(1)(a). In SZBYR , Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ held: [18] ... if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of para (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [[2004] FCAFC 123 , 206 ALR 471 at 477] that the word "information". does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc. If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself. See also: SZICU v Minister for Immigration & Citizenship [2008] FCAFC 1 at [24] [25], 100 ALD 1 at 6 7 per Tamberlin, Finn and Besanko JJ; SZLBA v Minister for Immigration & Citizenship [2008] FCA 484 at [23] [24] per Cowdroy J.


case_text: Assuming that the written submissions constituted a previously unexpressed application for leave to amend the Notice of Appeal , the granting of such leave was opposed by the solicitor appearing for the Respondent Minister. Two principal contentions advanced on behalf of the Minister were that: (a) none of the grounds had been advanced before the Federal Magistrates Court; and (b) none of the grounds were formulated in such a manner as to be able to be properly understood. Further, and more specifically, submissions focussed upon the fact that s 91R initially had been raised as a ground before the Federal Magistrates Court and an alternative ground expressly " substituted " in lieu. A party, of course, is generally not entitled to raise new grounds which were deliberately or by inadvertence not put to the court from which an appeal is brought: SZIBR v Minister for Immigration & Citizenship [2008] FCA 502 at [38] per Lander J. The contention that there was a failure to " assess information " is simply denied by the very task undertaken by the Tribunal. That, and other grounds, it was submitted were thus without substance, nor was there any specification as to which of the " findings " of the Tribunal were said to have been made without sufficient evidentiary foundation.