case_text: In Australian Competition and Consumer Commission v ABB Transmissions and Distribution Ltd (No 3) [2002] FCA 609 , Finkelstein J said (at [7]): 'The question that I must resolve is what principle should be applied when deciding to allow inspection in cases where leave is required. In giving the answer I propose to confine myself to those cases where a non-party seeks access to material which has been relied upon by the judge. In such a case, I have no doubt that the proper approach is that access should be allowed unless the interests of justice require a different course. It is only by adopting this approach that, in a practical sense, the principle of open justice will be preserved. Put differently, in my view there is a strong presumption in favour of allowing any member of the public who wishes to do so to inspect any document or thing that is put into evidence. Inspection should only be refused in exceptional circumstances. I think that the position is fortiori when the material has been read by the judge in private and is not read out in court. If that material is not made available for inspection then the manner in which the case is being conducted will only be known to the parties. That is an unacceptable position.'


case_outcome: referred to

case_text: This statement of approach has been referred to with approval in a number of cases: Macquarie Radio Network Pty Ltd v Australian Broadcasting Authority [2002] FCA 1408 ; Williams v Forgie [2003] FCA 991 ; Seven Network Ltd v News Ltd (No 9) [2005] FCA 1394 ; [2006] 225 ALR 256.


case_title: Williams v Forgie [2003] FCA 991


case_title: Seven Network Ltd v News Ltd (No 9) [2005] FCA 1394 ; (2006) 225 ALR 256


case_outcome: distinguished

case_title: Advanced Prosthetic Centre Pty Ltd v Appliance & Limb Centre (Int) Pty Ltd (2002) 53 ATR 331

case_text: (16) The applicants relied on McLaurin v Federal Commissioner of Taxation [1961] HCA 9 ; (1961) 104 CLR 381 (" McLaurin "); Allsop v Federal Commissioner of Taxation [1965] HCA 48 ; (1965) 113 CLR 341 (" Allsop "); CSR Ltd v Federal Commissioner of Taxation (2000) 171 ALR 392 (" CSR ") (a decision affirmed by the Full Court of the Federal Court in Commissioner of Taxation v CSR Ltd [2000] FCA 1513 ; (2000) 104 FCR 44) and Advanced Prosthetic Centre Pty Ltd v Appliance & Limb Centre (Int) Pty Ltd (2002) ATR 33 (" Advanced Prosthetic "). These cases were concerned with undissected lump sums paid in settlement of litigation. In all of them it was held, in substance, that where part of the lump sum was clearly received on capital account, it was not open to the Commissioner to bring to tax part of the lump sum as income. The questions that Part IIIA requires to be answered are, however, different. In particular, s 160ZD(4) expressly addresses the situation in which an undissected consideration relates in part only to the disposal of a particular asset. It requires that in these circumstances there must be a determination of "so much of that consideration as may reasonably be attributed to the disposal of the asset". 102 The applicants submit that the Apportionment Agreement was irrelevant. I agree. However, I do not accept their submission that the result in the present case is governed by McLaurin , Allsop , CSR and Advanced Prosthetic (discussed at [88] above), although these cases at least recognise the uncontroversial starting point that absent an apportionment by the parties of the Deed we cannot say that any particular part of the sum of $8,835,083 was paid for any particular asset. They were not cases involving the application of Part IIIA. The starting point of a Part IIIA inquiry is the identification of a "disposal" of an "asset", in each case as defined in that Part.


case_title: Allsop v Federal Commissioner of Taxation [1965] HCA 48 ; (1965) 113 CLR 341


case_text: However, the Tribunal accepted the Commissioner's submission that where joint holders had made unequal contributions to the acquisition of an asset, there being no presumption of advancement, a resulting trust is presumed for them as tenants in common in proportion to the values of their respective contributions to the consideration. The Tribunal referred to Calverley v Green [1984] HCA 81 ; (1984) 155 CLR 242. The Tribunal said that while there was some evidence as to the value of Claude Cassegrain's possible claim in defamation which he never "commenced", its value was by no means close to $4.25 million. The Tribunal accepted that the onus was on GCC and CFE to establish the value of Claude Cassegrain's rights, and that since they had not done so, it was reasonable to attribute the entire consideration of $9.5 million to the rights given up by GCC, pursuant to s 160ZD(4) of the Act , noted at [60] above. 65 The Tribunal noted that Claude Griffith had given evidence that GCC had claimed deductions for most of its expenses incurred in the joint venture and Cassiro's activities, including concessional deductions for research and development under s 73B of the Act , and that Claude Cassegrain's evidence was that an important objective of the settlement was to recover the amount that GCC had invested in Cassiro. The Tribunal considered that it "would be double counting to allow those costs to be included in the cost base of the asset (rights) given up by GCC" (at para 41). Consequently, the Tribunal found that the cost base of GCC's rights disposed of in the settlement by reason of s 160M(3)(b) (which, the Tribunal observed, effectively treated a release of GCC's rights as a disposal of the rights) was nil, given that the acquisition costs were "either not capital in nature or would be double-counted". 66 In the result, the Tribunal concluded that a capital gain of $9.5 million accrued to GCC under s 160Z, this being the excess of the disposal consideration over the cost base (nil) of the asset given up to acquire that sum. 77 (6) The applicants contend that "the Tribunal's principal error of law was to ignore the terms of the Deed and to re-write it by reference to the principles of resulting trusts". Although I would not describe the finding of a resulting trust as a rewriting of the Deed, I agree with the applicants that the resulting trust principle, recognised in the case of owners of land as joint tenants at law in Calverley v Green , has no application. The trust in question, whether called properly called "resulting" or "implied", is presumed in the absence of evidence of an intention to the contrary. In all the cases in which the principle has been applied of which I am aware, the trust has arisen from the provision of purchase money in a way that does not correspond with the way in which legal title is taken. Perhaps the principle would also apply if, although not in the form of money, the consideration could be regarded as equivalent to money. In the present case, however, the consideration provided for the payment of $8,835,083 and the CSIRO Parties' releases and contractual undertaking, consisted of releases and contractual undertakings by GCC and Claude Cassegrain separately and jointly and severally. 78 (7) Arguably, a further reason why a Calverley v Green resulting trust did not come into being is that it would be inconsistent with the intention of at least one party to the Deed that it should do so. By making the Apportionment Agreement, Claude Cassegrain showed an intention that was inconsistent with a presumption that he and GCC were to hold the sum of $9.5 million beneficially for themselves as tenants in common in equity in whatever proportions might turn out to reflect the values of their respective contributions to the consideration provided to the CSIRO Parties. 79 (8) So far as I know, no pre-existing asset disposed of by the Deed was owned by GCC and Claude Cassegrain as joint tenants. Each of them had its or his own separate potential claim against the CSIRO Parties. There were the claims already asserted by GCC alone in proceeding NG 3062 of 1992, with the further claims of conspiracy to cheat and defraud, abuse of process and defamation and injurious falsehood to be introduced by way of the proposed second further amended statement of claim (see [26] above). There was also a possible claim of defamation of Claude Cassegrain that had been obliquely referred to in the Cassegrain Letter (see [21] above). It is noteworthy, in passing, and only by way of interest, that in the Cassegrain Letter the amount claimed for defamation was $5 million, which was approximately one eleventh of the total amount of $56,033,000 claimed in that letter. The remaining $51,033,000 was clearly claimed by GCC alone. The sum of $5 million was not claimed for the defamation of Claude Cassegrain alone: it was claimed for defamation of "GC&Co, Cassegrain Family name, Cassegrain Group of companies and Claude Cassegrain and his family". If the sum of $9.5 million were to be regarded as having been paid in conformity, on a pro rata basis, with the Cassegrain Letter, some $850,000 would be treated as having been paid in respect of the threatened defamation claim, of which, apparently Claude Cassegrain would be entitled to some unidentified part, the other parts being in respect of defamation claims by GCC, other unidentified Cassegrain companies, and other unidentified members of the Cassegrain family. There was, of course, no agreement that the Settlement Sum was related to the different elements identified in the Cassegrain Letter. 80 (9) There is no reason to distinguish between CSIRO's paying $8,835,083 and the CSIRO Parties' releases and contractual undertakings, as making up the consideration for the Cassegrain Parties' releases and other contractual undertakings. In other words, if it were possible to apportion the value of the Cassegrain Parties' releases and contractual undertakings as between GCC and Claude Cassegrain, it would be appropriate to apply those proportions to the sum of $8,835,083 (and, if it should be relevant, to the value of the CSIRO Parties' releases and contractual undertakings). 90 The second, fifth, sixth, seventh and ninth questions of law are: Second question of law "Did the Tribunal err in law by not concluding that the deed of settlement entered into on 27 September 1993 between G Cassegrain & Co Pty Limited, Claude Cassegrain, the CSIRO and Sirotech Limited ("the deed of settlement"), either alone or when considered with the simultaneous payment of $9.5m thereunder to, or at the direction of, G Cassegrain & Co Pty Limited and Claude Cassegrain jointly, was the only relevant transaction under which a capital gain accrued to G Cassegrain & Co Pty Limited and Claude Cassegrain jointly for the purposes of Part IIIA ...?" Fifth question of law "Did the Tribunal err in law by declining to apply s 160ZN(1)(a), ... to the capital gain which accrued to G Cassegrain & Co Pty Limited and Claude Cassegrain jointly under the deed of settlement for the purposes of determining the amount of the capital gain which accrued to each of them under that transaction?" Sixth question of law "Did the Tribunal err in law when it went behind the deed of settlement in order to re-construct the transaction which it consummated in reliance on the doctrine of resulting trusts and the principle of law enunciated in Calverly v Green [1984] HCA 81 ; (1985) 155 CLR 242 [sic] ?" Seventh question of law "Did the Tribunal err in law by concluding that the applicants bore an onus to establish the value of the rights which they surrendered under the deed of settlement in favour of CSIRO and Sirotech Limited for the purposes of Part IIIA , ...?" Ninth question of law "Did the Tribunal err in law when it concluded that a capital gain of $9.5m accrued to G Cassegrain & Co Pty Limited pursuant to sections 160M(3)(b) and 160Z ... in consequence of its entry into the deed of settlement and the simultaneous payment of $9.5m under it?" 91 The grounds stated in the notice of appeal that relate to the second question of law are directed against the Tribunal's finding of a constructive trust. I agree that the circumstances did not give rise to a constructive trust for reasons that I gave earlier: the case is not one of purchase money (or perhaps its equivalent) for the purchase of property. 92 Ground 4(e) suggests that the consequence of removing constructive trust from the picture is that we are left with the result that a capital gain accrued to GCC and Claude Cassegrain: "jointly, and, in consequence, as tenants in common in equal shares despite the operation of the apportionment agreement as a side agreement and, in particular, despite its operation in re-apportioning that settlement amount as between the two of them"


case_title: Cassegrain v Cassegrain [1998] FCA 811

case_text: It remains to refer to another proceeding between the members of the Cassegrain family, resulting in a judgment delivered by Davies J on 15 July 1998, Cassegrain v Cassegrain [1998] FCA 811. His Honour declared that the actions of Claude Cassegrain in treating the $4.25 million loan account with GCC as his own entitlement to be drawn down at his will, in drawing upon it as he saw fit, and in causing the passing of a resolution of directors allowing for the payment of retrospective interest thereon, were actions which were oppressive of and unfairly prejudicial to the members of GCC. 49 In the course of his reasons, Davies J referred to the Apportionment Agreement. He found that both Gerard and Claude Cassegrain had a keen eye to the reduction of tax. His Honour noted that Gerard probably looked upon the split between GCC and Claude Cassegrain as a tax reduction device, and that since the rate of capital gains tax was 30 percent or thereabouts, the apportionment, if effective, would save GCC almost $1.5 million in tax. 50 His Honour rejected the evidence of Claude Cassegrain that he could not recall discussing any issue of capital gains tax with his father or with Claude Griffith, the accountant. His Honour was satisfied that the apportionment was agreed to with a view to reducing the capital gains tax otherwise payable on the whole $9.5 million. His Honour was satisfied that Gerard Cassegrain and Claude Cassegrain did not, at the time, regard the sum of $4.25 million as Claude's money. His Honour was satisfied that the sum of $9.5 million was paid to GCC and received by it in settlement of its claim against CSIRO, and that no attempt was ever made to arrive at a genuine estimate of a sum for any personal claim by Claude Cassegrain, including any claim falling within the terms of s 160ZB(1) of the Act . 51 After his father's death, Claude Cassegrain drew down on the funds of GCC on the basis that it owed him the $4.25 million. As well, he alleged that he and his father had agreed that GCC would pay him interest on that sum. Since Davies J rejected Claude Cassegrain's claim that the sum of $4.25 million was his own money, it followed that GCC did not owe him that amount. His Honour concluded that by purporting to draw down and to charge GCC interest on it, Claude Cassegrain acted in a manner oppressive of, and unfairly prejudicial to, the other members of GCC. 52 Section 160AX of the Act identifies the object of Part IIIA as being "to provide for net capital gains to be included in assessable income". The section refers to s 160ZO which provides in subs (1) that where a net capital gain accrues to a taxpayer in respect of a year of income, the taxpayer's assessable income of that year includes that net capital gain. Under s 160ZC, capital gains accrued during the year and capital losses incurred during the year are netted in order to arrive at the net capital gain that is included in the taxpayer's assessable income under s 160ZO. 53 Section 160A(a) provides that, unless a contrary intention appears, in Part IIIA the word "asset" means, relevantly, any form of property, and includes a chose in action and any other right, whether legal or equitable, and whether or not a form of property. 67 As what it described as "an alternative ground" for its decision, the Tribunal considered that the Apportionment Agreement was a sham. It is not clear why the Tribunal described this as an alternative ground, because the first ground, the resulting trust ground, did not depend on the effectiveness of the Apportionment Agreement. For the finding of "sham", the Tribunal relied on the findings made by Davies J in the Cassegrain v Cassegrain oppression suit. The Tribunal noted that that case had run for 12 days, and that his Honour had had the advantage of hearing witnesses including Patrick Cassegrain, a co-signatory with his father to the letter of 6 July 1993 to Mr Garrett. 68 After referring to the parties' submissions and to certain authorities relating to "sham", the Tribunal made a series of findings to the following effect: • the Apportionment Agreement was not intended to confer on Claude Cassegrain beneficial entitlement to the sum of $4.25 million; rather, the intention was to maximise the after tax amount of the Settlement Sum (the Tribunal referred, in particular, to GCC's delicate position with the Bank, of which Gerard and Claude Cassegrain were conscious; to the threat of receivership; and to Claude Cassegrain's evidence that he went into the mediation with the intention of being able to pay the Bank around $15 million); • in about early 1993, Claude Griffith informed Claude Cassegrain of the tax consequences of GCC's receiving $15 million, and that money received in respect of personal injury was exempt from capital gains tax (a reference to s 160ZB(1) discussed at [58] above); • Gerard and Claude Cassegrain intended to reduce the level of tax so that as much money as possible would be available to be paid to the Bank; • the apportionment was not intended by Gerard and Claude Cassegrain to have legal effect, and the increase by $4.25 million in the balance of Claude Cassegrain's loan account with GCC was, likewise not intended by them to have legal effect; • Claude Cassegrain had told Mr Griffith that the amount (the $4.25 million) was not his, but was the family's money, and that he was holding it for the family because it was better from a tax point of view to make the net (after tax) sum as large as possible; • on 3 February 1994, Claude Cassegrain wrote to the other members of the family advising that GCC had invested some $7.5 million in Cassiro, and that although it had failed, he did recover $6.8 million (which, he agreed in cross-examination, represented approximately the Settlement Sum less legal fees); • in his statement of 3 February 2004, Claude Cassegrain asserted that he could have had half of the issued shares in Cassiro allotted to himself rather than to GCC, and he regarded GCC's interest in Cassiro as "more or less as if it were held in trust" for him to do with as he wished; • there was no real relationship between the amounts agreed and any reasonable entitlements of GCC and Claude Cassegrain respectively, the evidence being that GCC had invested over $7 million in the joint venture, while CSIRO's solicitors considered that Claude Cassegrain would not receive more than $0.5 million in damages for defamation and for the other releases and warranties he was required to provide under the Deed (the evidence of Mr Rares SC, as his Honour then was, was that when the Deed was entered into in September 1993, the highest verdict recorded for defamation in New South Wales was $0.6 million, albeit a verdict that excluded a claim for economic loss which, in Mr Rares's opinion, Claude Cassegrain could have successfully made); • despite a book entry increasing GCC's indebtedness to Claude Cassegrain in his loan account with the company, that entry did not reflect the intention of Gerard and Claude Cassegrain, which was to treat the entire $9.5 million as GCC's money for immediate use in paying down GCC's debt to the Bank; • further support for the conclusion that the Apportionment Agreement was sham is found in the findings of Davies J in Cassegrain v Cassegrain referred to above. 69 The Tribunal then proceeded to consider the position that would have obtained if the Apportionment Agreement had not been a sham. The Tribunal said that it would have found that s 160M(6) of the Act , as amended by the Taxation Laws Amendment Act (No 4) 1992 (Cth), would have applied to the Apportionment Agreement itself. In summary, on the assumption that the Apportionment Agreement vested a beneficial entitlement to the sum of $4.25 million in Claude Cassegrain, the Tribunal's reasoning was that the effect of ss 160M(6), (6A) and (6B) was that GCC created a right that instanteously vested in Claude Cassegrain, that is to say, GCC created an asset that vested without consideration in Claude Cassegrain enforceable against GCC. According to the Tribunal, under the subsections mentioned, GCC would be deemed to have acquired the right immediately before the making of the Apportionment Agreement and to have disposed of it at the time of the making of that Agreement, the cost base of that asset being nil by reason of s 160M(6A)(c). (This approach to the matter leaves out of account the contractual undertakings given by GCC and Claude Cassegrain in the Deed, and treats the entire $9.5 million as payable for the releases and surrenders of existing potential causes of action, of which any of Claude Cassegrain are treated as being of no value.) 70 For all the above reasons, the Tribunal concluded that the objection decisions should be affirmed because GCC and CFE had not discharged the onus of proving that the amended assessments against them were excessive. 114 The applicants submit that the Tribunal did not apply the test of sham that it identified. The submission is that GCC and Claude Cassegrain must have intended the Apportionment Agreement to have legal effect, because Davies J found in Cassegrain v Cassegrain that Claude Cassegrain's conduct in relation to the recording of GCC as being indebted to him for $4.25 million was oppressive towards other shareholders. The contention is that conduct that is a sham cannot be at the same time oppressive and discriminatory. 115 I disagree. A director who steals from a company oppresses the other shareholders even though title to the thing stolen does not pass at law to the director. The notion of oppressive conduct is a wide one. To record GCC as being indebted to him for $4.25 million and to charge the company interest retrospectively on that sum, does not cease to be oppressive merely because shareholders can obtain a judicial determination that the underlying transaction was a sham, that the company did not become indebted for $4.25 million, and that there is no entitlement to interest. 116 There is no inconsistency between Davies J's declaration that Claude Cassegrain had acted in a manner oppressive and unfairly prejudicial to the members of GCC by treating the $4.25 million loan account with the company as his entitlement to be drawn down at his will, in drawing upon it as he saw fit, and in causing the passing of a resolution of the directors allowing for the payment of interest retrospectively on that sum, on the one hand, and the Tribunal's finding of sham, on the other hand. 117 I reject the applicants' further submission that a finding of sham in respect of the purported Apportionment Agreement also required a similar finding in respect of the Deed. 118 The applicants submit that the Tribunal erred in referring to the Apportionment Agreement as an agreement made by Claude Cassegrain and his father. However, it was made between them. Claude Cassegrain's mother, Françoise Cassegrain, and GCC's solicitor, Andrew Walmsley, were onlookers.


case_outcome: cited

case_text: There was no error in the Tribunal's identification of the test of a sham. The Tribunal asked itself whether the Apportionment Agreement was intended to have the legal effect that it gave an appearance of having, or, to express the same idea differently, whether the parties took steps having the form of a legally effective transaction, which they intended should not have the legal consequences that such a transaction would have. This was the correct question to ask: see Cranstoun v Federal Commissioner of Taxation (1984) 75 FLR 220 at 227 228; Richard Walter Pty Ltd v Commissioner of Taxation (1996) 67 FCR 243 at 257 258; Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55 ; (2004) 211 ALR 101 at 111. The Tribunal supportably answered this question in the negative.


case_title: CSR Ltd v Federal Commissioner of Taxation (2000) 171 ALR 392


case_title: Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55 ; (2004) 211 ALR 101


case_title: McLaurin v Federal Commissioner of Taxation [1961] HCA 9 ; (1961) 104 CLR 381


case_title: Richard Walter Pty Ltd v Commissioner of Taxation (1996) 67 FCR 243


case_outcome: affirmed

case_text: This is an application for leave to appeal from a judgment of Barnes FM of 31 October 2006: NAVH v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 1704. The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal dated 30 June 2003 affirming a decision of a delegate of the Minister to refuse to grant a protection visa to the applicant. 2 The applicant is a citizen of Pakistan who arrived in Australia on 28 July 2001. On 20 May 2002 the applicant lodged an application for a protection visa with the department. On 25 July 2002 a delegate of the Minister refused the application and the applicant applied to the Tribunal for review. In his protection visa application the applicant claimed fear of persecution by reason of his political opinion. The applicant claimed his father had been carrying out activities against drug traffickers and was murdered by drug smugglers because of those activities. 3 The applicant claimed he would be persecuted in Pakistan because of his father's activities. The applicant further claimed he would be arrested because of his opposition to the military regime in Pakistan. In particular, the applicant claimed to be a member of the Pakhtoon Khwa Party and to have written articles against the dictatorial regime of General Musharaf. The applicant claimed he and his father were attacked by ICI members who had connections to drug smugglers.


case_text: The applicant has challenged the decision not to grant him a protection visa on a previous occasion in this Court. On 16 December 2003, Lindgren J dismissed an application for review of the Tribunal decision: NAVH v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1558. 9 The applicant then commenced further proceedings in the Federal Magistrates Court seeking review of the Tribunal's decision. 10 The Minister filed a notice of objection to competency on the grounds that the application was out of time. Notification of the decision of the Tribunal was received by the applicant on 29 July 2003. Pursuant to Part II , Item 42 of Schedule 1 of the Migration Litigation Reform Act 2005 (Cth) the applicant is taken to have been notified of the decision on 1 December 2005. Contrary to s 477(1) of the Migration Act, the application to the Federal Magistrates Court was not made within 28 days. That Court had no power to extend time for commencement of the proceedings beyond 23 February 2006.


case_title: Ainsworth v Walmsley (1866) 1 Eq 518

case_text: When considering proprietorship it is important to remember that there is no proprietorship in a mark per se. Under the common law "property in a trade-mark is ... the right to the exclusive use of some mark, name or symbol in connection with a particular manufacture or vendible commodity": Leather Cloth Co Ltd v American Leather Couch Co Ltd (1863) 4 De G J & S 137, 144. See also Ainsworth v Walmsley (1866) 1 Eq 518, 524 ("This Court has taken upon itself to protect a man in the use of a certain trade-mark as applied to a particular description of article"). The position is no different under the Trade Marks Act . The effect of the current statute, which is substantially similar to earlier legislation, is that a trade mark must be registered in respect of particular goods or services specified in Schedule 1 to the Trade Marks Regulations 1995 (Cth): Trade Marks Act , ss 19 , 27 in combination with Trade Mark Regulations, reg 3.1, 4.4, Sch 1.


case_outcome: applied

case_title: Arkwright v Newbold (1881) 17 Ch D 301

case_text: This was much less information about Strandbags Group's activities than was actually known to Colorado Group. Partly for that reason it is said that Mr Williams' statement was misleading, and did in fact mislead the Registrar. The statement is said to have been misleading in the following respects (and here I quote from Strandbags Group's submissions): "(a) at least, as to the 2001 status of the Respondent's uses, and/or (b) very possibly, so as to think that there was some relationship between the trade mark applicant and the Colorado Bag Co." As to (b) it is not being alleged that what was said was untrue (a direct misrepresentation) but, rather, that there was an implied or inferred representation to the effect that all that was known about Colorado Bag Co was being disclosed. Further, this is not a case of omission because an omission (if there be any) must render an actual statement false for it to be a misrepresentation: Arkwright v Newbold (1881) 17 Ch D 301, 309. I propose to proceed on that view.


case_text: Moving to the merits, I will begin by stating two principles. The first is so elementary that it hardly needs stating. The principle is this. Statute and vicarious liability apart, A cannot bring an action against B to recover damages or secure other relief for an injury done by C. The second principle is that the relevant time for determining whether there has been a passing off is the date on which the impugned conduct commenced ( Cadbury-Schweppes Pty Ltd v Pub Squash Co Ltd [1981] RPC 429; J C Penney Company Inc v Penneys Ltd [1975] FSR 367) or when the passing off was first threatened ( Barnsley Brewery Co Ltd v RBNB [1997] FSR 462), whichever is the earlier. The combined effect of the two principles is that the time at which it is necessary to assess Colorado Group's claim in passing off is 21 September 1998. That is the day on which Strandbags Group completed the purchase of the Edgarlodge business and commenced its use of the "Colorado" mark. The earlier activities of Edgarlodge cannot be the basis for relief against Strandbags.


case_outcome: discussed

case_text: Having got these preliminary points out of the way, I can now return to the first question. As I have said, it is not in dispute that Colorado Group used the word "Colorado" in combination with the "simple mountain motif" on backpacks and shoes before the word "Colorado" was used by Edgarlodge. Speaking generally, however, a person who is the proprietor of a combination mark is not the proprietor for trade mark purposes of the marks comprising each separate component: In re J B Palmer's Trade-Mark (1883) 24 Ch D 504; In re Royal Baking Powder Co [1880] WN 49; Richards v Butcher [1891] 2 Ch 522. But there may be exceptions to the general rule. In BP plc v Woolworths Ltd (2004) 62 IPR 545 I was required to consider whether it was possible to dissect a mark that was made up of several components and obtain trade mark registration of only one component. I said (at 567-568) that it could be done, provided the component for which registration is sought "creates an impression which is totally separate from the other[s] and is distinctive, that is it performs the trade mark function of identifying the source of the goods and services to customers." While I have heard no evidence on the point, my impression here is that each component (or at least the word) serves that function. On this basis, then, Colorado Group could be regarded as the first user of the "Colorado" mark.


case_title: Cadbury-Schweppes Pty Ltd v Pub Squash Co Ltd [1981] RPC 429


case_text: The next ground of attack against the registration of the trade mark is that it was not distinctive of Colorado Group's goods. The point arises in the following way. Generally, a word, name or device (or any other designation that may be a "sign" for the purposes of the Trade Marks Act ) can only be distinctive of a person's goods or services if it is "inherently adapted to distinguish" those goods or services or, if it is not inherently distinctive, if it has become distinctive by use, that is if it has acquired a secondary meaning. A designation that is merely descriptive of the character of the goods or of their geographic origin or location cannot be inherently distinctive. At least in the case of a geographic description "there is necessarily great difficulty in proving that by reason of use or other circumstances [the designation] does in fact distinguish his goods": Clark Equipment Co v Registrar of Trade Marks [1964] HCA 55 ; (1964) 111 CLR 511, 515 per Kitto J in an oft quoted passage.


case_title: Collins Co, The v Oliver Ames & Sons Corporation , 18 F 561 (1882)


case_title: Colman v Crump , 70 NY 573 (1877)

case_text: It follows that proprietorship by first use is proprietorship in relation to the goods or classes of goods on which the mark has been used. The proprietor is entitled to have his mark registered in respect of those goods. This entitlement is not confined to identical goods or classes of goods. Registration may also be obtained for goods or classes of goods which is or are "a thing [or things] of the same kind" ( Jackson & Co v Napper (1886) 35 Ch D 160, 178) or "like articles of production" ( Columbia Mill Company v Alcorn , 150 US 460, 464 (1893)) or "articles of merchandise of the same kind" ( Colman v Crump , 70 NY 573, 578 (1877)) or "kindred articles" ( The Collins Co v Oliver Ames & Sons Corporation , 18 F 561, 570 (1882)), if there be any difference between these expressions. See also Edwards v Dennis (1885) 30 Ch D 454.


case_title: Columbia Mill Company v Alcorn , 150 US 460 (1893)


case_title: Edwards v Dennis (1885) 30 Ch D 454


case_text: This brings me to the passing off claim. There is no dispute about the elements of the cause of action. There is a very useful summary of the five elements by Lord Diplock in Erven Warnink Besloten Vennootschap v J Townend & Sons (Hull) Ltd [1979] AC 731, 742. Here the question is whether Colorado Group can make out goodwill and misrepresentation. To prove damage it is no longer necessary to show loss of sales or disparagement of goodwill. It is enough if the exclusivity of the goodwill is eroded: Tattinger v Allbev Limited [1992] FSR 647; Irvine v Talkspot Ltd [2002] FSR 943. Thus if goodwill and misrepresentation are established, damages will be proven. The case was conducted on that basis.


case_text: The second preliminary point is whether the mark "Colorado" was used as a trade mark by Colorado Group or by Woolworths Corporation, the United States parent. In support of a submission that the use was by Woolworths Corporation alone, Strandbags Group relies on a passage from Estex Clothing Manufacturers Pty Ltd v Ellis and Goldstein Ltd [1966] HCA 81 ; (1967) 116 CLR 254, 271: "[W]e have no doubt that when an overseas manufacturer projects into the course of trade in this country, by means of sales to Australian retail houses, goods bearing his mark and the goods, bearing his mark, are displayed or offered for sale or sold in this country, the use of the mark is that of the manufacturer. Indeed, in this case, the respondent is the only person who has the right to use the mark and the retailer to whom the goods have been sold for re-sale does not, in any relevant sense, use it." 29 In my opinion that case does not support the argument. In the first place Estex established only that when a foreign owner of an Australian trade mark sells imported goods bearing the mark and the goods are then sold in Australia the foreign owner uses the mark in Australia. The case did not consider whether the local retailer also used the mark: Pioneer Kabushiki Kaisha v Registrar of Trade Marks [1977] HCA 56 ; (1977) 137 CLR 670, 688. In the second place there is little similarity between the facts of this case and those in Estex . Woolworths Corporation was not a foreign manufacturer of goods. It was not the owner of an Australian trade mark. It did not sell goods bearing the Colorado mark for delivery in Australia. What we have here is a local retailer which, through the agency of a related company, arranged for goods to be manufactured overseas bearing a mark nominated by the local retailer and then imported the goods for retail sale. The only involvement of Woolworths Corporation is that it authorised its local subsidiary to use one of its in-house marks. It no doubt permitted other subsidiaries to use those marks in other jurisdictions. However that may be, merely authorising a person to use a mark in Australia is not use in Australia by the person giving the authority. It is clear in my view that only Colorado Group used the mark in Australia.


case_text: Whatever be the position in the years leading up to 1998, from the time Strandbags Group purchased the Edgarlodge business both it and Colorado Group had a strong reputation in the Colorado brand. I think this finding must put an end to the passing off claim. In a trade mark case General Electric Co of USA v General Electric Co Ltd [1972] 1 WLR 729, 743, Lord Diplock said: "In cases of honest concurrent user [and Strandbags Group's use is concurrent], neither of the owners of [a common law trade mark] could restrict the other from using it, but as against a usurper who infringed it either owner of the mark could obtain an injunction". In a passing off case when two traders have a reputation in the same or similar names that are concurrently being used "neither of them can be said to be guilty of any misrepresentation. Each represents nothing but the truth, that a particular name or mark is associated with his goods or business": Habib Bank Ltd v Habib Bank AG Zurich [1981] 1 WLR 1265, 1275 per Oliver LJ. If in such circumstances there might be confusion that is just "one of the misfortunes which occur in life", but it is not actionable as a passing off: Marengo v Daily Sketch and Daily Graphic Ltd [1992] FSR 1, 2.


case_title: Habib Bank Ltd v Habib Bank AG Zurich [1981] 1 WLR 1265


case_title: Hicks's Trade Mark, In re (1897) 22 VLR 636

case_text: I will look at proprietorship first. In In re Hicks's Trade Mark (1897) 22 VLR 636, Holroyd J said (at 639): "A person cannot be properly registered [under the Trades Marks Act] unless he is the proprietor. Proprietor is the person who at the moment he makes application to be registered is entitled to the exclusive use of the name, whether he then or before publicly adopted it." Broadly speaking, a person may be the proprietor of a mark in one of two ways. First, in respect of a mark which has never been used the proprietor is the person who is (or claims through) the author of the mark (which could include the copyist of a foreign mark) and intends to use it: In re Hudson's Trade-Marks (1886) 32 Ch D 311, 319-320; Shell Co of Australia Ltd v Rohm & Haas Co [1948] HCA 27 ; (1949) 78 CLR 601, 627-628. Second, a person may be the proprietor of a mark if he has used it, provided no-one else has used the mark before him. This last proposition requires some elaboration. In the case of an inherently distinctive mark nothing more than first use is necessary to establish proprietorship. The applicant need not show that the mark has gained public recognition. Any general use of the mark as a trade mark will be enough, although in a rare case the use may be so inconsequential that it should be ignored as de minimus. Perhaps care should also be taken when there has been only a slight use of the mark followed by a long period of non-use, where something akin to the doctrine of abandonment might apply. If a mark is not inherently distinctive but indicates that an article emanates from some (usually anonymous) source because, or partly because, the mark has acquired a secondary meaning, strictly speaking first use is not sufficient to establish proprietorship. To make out proprietorship it is also necessary to show that the mark does in fact distinguish the applicant's goods from the goods of others. Even if this is not an aspect of proprietorship (as I think it is), unless a secondary meaning is established s 41 would bar registration of the mark.


case_title: Hudson's Trade-Marks, In re (1886) 32 Ch D 311


case_title: Irvine v Talkspot Ltd [2002] FSR 943


case_title: J B Palmer's Trade-Mark, In re (1883) 24 Ch D 504


case_title: J C Penney Company Inc v Penneys Ltd [1975] FSR 367


case_title: Jackson & Co v Napper (1886) 35 Ch D 160, 178


case_text: I do not accept that the Registrar would have read Mr Williams' statement as indicating that there was some relationship between Colorado Group and Colorado Bag Co. The last sentence of the first quoted paragraph only makes sense if there were no relationship between the two. The other alleged misrepresentation, however, cannot be dismissed out of hand. If what was said by Mr Williams would naturally lead the Registrar to suppose that Mr Williams had disclosed all that he knew about the activities of Colorado Bag Co he has made a representation to that effect: Lee v Jones (1864) 17 CB (NS) 482, 510. In deciding what the Registrar would suppose, I am required to assume the Registrar is a reasonable person in that position: Krakowski v Eurolynx Properties Ltd [1994] HCA 22 ; (1995) 183 CLR 563, 576-577. The view I take is that a reasonable Registrar would likely think that Mr Williams was providing him with information about the situation in 1991 and not as things stood in 2001. The first paragraph is in terms confined to events in 1991 -- "The first Colorado Bag Store opened [in] 1990 or 1991" -- "At the time" this was a cause for some concern but not a major concern because "at that time" the brand was characteristic of Colorado Group's goods. The reference in the second paragraph to "At the time" and "at that time" likewise points the Registrar to 1990 or 1991. In both paragraphs Mr Williams is making what he no doubt thought was an important point (whether it was or not being irrelevant), namely, that nothing of relevance happened after 1990 or 1991 because the mark had already acquired distinctiveness. I do not accept that Mr Williams' statement would have been understood by the Registrar as referring to "the 2001 status of [Strandbags Group's] uses."


case_title: Leather Cloth Co Ltd v American Leather Couch Co Ltd (1863) 4 De G J & S 137


case_title: Lee v Jones (1864) 17 CB (NS) 482


case_title: Marengo v Daily Sketch and Daily Graphic Ltd [1992] FSR 1


case_text: The claim under s 52 must fail for the same reason as the passing off claim has failed. Although a s 52 claim may succeed where a passing off claim has failed ( Peter Isaacson Publications v Nationwide News Pty Ltd (1984) 3 IPR 255), when, as here, there has been no misrepresentation, the s 52 claim cannot succeed: Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177. By the time Strandbags Group took over the Edgarlodge business the point had been reached where the court could not interfere with that company's trading even if in the past there had been misleading conduct engaged in by Edgarlodge. It is possible that prior to the sale Colorado Group could have taken action to restrain Edgarlodge's activities. Having failed to take that action, it cannot now complain about what is being done by Strandbags Group.


case_text: In my opinion that case does not support the argument. In the first place Estex established only that when a foreign owner of an Australian trade mark sells imported goods bearing the mark and the goods are then sold in Australia the foreign owner uses the mark in Australia. The case did not consider whether the local retailer also used the mark: Pioneer Kabushiki Kaisha v Registrar of Trade Marks [1977] HCA 56 ; (1977) 137 CLR 670, 688. In the second place there is little similarity between the facts of this case and those in Estex . Woolworths Corporation was not a foreign manufacturer of goods. It was not the owner of an Australian trade mark. It did not sell goods bearing the Colorado mark for delivery in Australia. What we have here is a local retailer which, through the agency of a related company, arranged for goods to be manufactured overseas bearing a mark nominated by the local retailer and then imported the goods for retail sale. The only involvement of Woolworths Corporation is that it authorised its local subsidiary to use one of its in-house marks. It no doubt permitted other subsidiaries to use those marks in other jurisdictions. However that may be, merely authorising a person to use a mark in Australia is not use in Australia by the person giving the authority. It is clear in my view that only Colorado Group used the mark in Australia.


case_title: Richards v Butcher [1891] 2 Ch 522


case_title: Royal Baking Powder Co, In re [1880] WN 49


case_title: Shell Co of Australia Ltd v Rohm & Haas Co [1948] HCA 27 ; (1949) 78 CLR 601


case_text: Applying the principles to be gathered from cases such as Shell Co of Australia Limited v Esso Standard Oil (Australia) Limited [1961] HCA 75 ; (1963) 109 CLR 407, 415, it is clear beyond any doubt that Strandbags Group's use of the word "Colorado" infringes the trade mark. A defence under s 122(1)(f) was abandoned. The facts will not support the defence under s 124. This is not because (as was alleged) Edgarlodge is not Strandbags Group's predecessor in title (I am sure that it is having regard to the terms of the contract of sale), but because Edgarlodge's use of "Colorado" on backpacks was not a prior use.


case_outcome: followed

case_title: Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177


case_title: Tattinger v Allbev Limited [1992] FSR 647


case_outcome: considered

case_text: Wilkshire v Registrar of Trade Marks [2009] FCA 1222 I ordered that the application made by Mr Wilkshire under s 88 of the Trade Marks Act 1995 (Cth) be summarily dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth). The second respondent, the Bombala Council, requested at the time I published my judgment that I vacate my proposed order as to costs as it wished to seek indemnity costs in the matter.


case_text: Council puts its claim for indemnity costs on two bases. The first relies upon the discretion the Court has to depart from the usual principles informing the judicial discretion to award costs where the circumstances of the case warrant such a departure: see Re Wilcox: Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727 at 732-734. The second relies upon an offer of compromise being made under O 23 r 11 of the Federal Court Rules , it being contended that, the application having been dismissed summarily, Mr Wilkshire obtained a result less favourable than the terms of the offer of compromise dated 4 June 2009 which was made to him. I can deal with the second of these grounds shortly. In my view there is reason for a court to be slow to allow indemnity costs to be obtained under O 23 r 11 in circumstances in which the relevant order obtained (against which the Order 23 r 11 comparison is to be made) is an order for summary dismissal. I do not consider it to be a policy of O 23 to provide a successful party as of course with the forensic advantage of indemnity costs when involved in proceedings with another whose case is hopeless and doomed to failure. For my own part I would be reluctant to order indemnity costs pursuant to O 23 r 11 on a motion for summary dismissal unless an award of indemnity costs is itself warranted by the principles informing the judicial discretion to award such costs. It is unnecessary for present purposes to enlarge upon those principles. Some number of them were expounded by Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 536 ; (1993) 46 FCR 225 at 232-233; see also Re Wilcox ; and see generally Dal Pont, Law of Costs [16.39] ff (2 nd ed, 2009).


case_text: my view there is reason for a court to be slow to allow indemnity costs to be obtained under O 23 r 11 in circumstances in which the relevant order obtained (against which the Order 23 r 11 comparison is to be made) is an order for summary dismissal. I do not consider it to be a policy of O 23 to provide a successful party as of course with the forensic advantage of indemnity costs when involved in proceedings with another whose case is hopeless and doomed to failure. For my own part I would be reluctant to order indemnity costs pursuant to O 23 r 11 on a motion for summary dismissal unless an award of indemnity costs is itself warranted by the principles informing the judicial discretion to award such costs. It is unnecessary for present purposes to enlarge upon those principles. Some number of them were expounded by Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 536 ; (1993) 46 FCR 225 at 232-233; see also Re Wilcox ; and see generally Dal Pont, Law of Costs [16.39] ff (2 nd ed, 2009).


case_text: is not the case that because a person is a lay litigant he or she is for that reason immune to an order for indemnity costs: see Ogawa v The University of Melbourne (No 2) [2004] FCA 1275 at [41] - [47] ; Bhagat v Global Custodians Ltd [2002] FCA 223 at [55]-[60]. This said, there is an understandable reluctance to make such orders unless clear and compelling reasons for doing so are present notwithstanding the litigant's lack of legal representation.


case_title: Bhagat v Global Custodians Ltd [2002] FCA 223


case_text: This is an application for interlocutory injunctive relief pending the trial of proceedings which were instituted on 15 February 2006. THE NATURE OF THE PROCEEDINGS 2 The applicant is an academic at the University of Ballarat ("UB"). He is presently employed as a senior lecturer and course co-ordinator of the Bachelor of Arts (Humanities and Social Sciences) course at the Mt Helen campus of UB. He is a member of the National Tertiary Education Industry Union ("NTEU") and holds two official positions with it, namely a member of its national council since 1998 and branch president of its UB branch since 2000. 3 The proceedings are brought by the applicant as a representative party pursuant to Pt IVA of the Federal Court of Australia Act 1976 (Cth) ("the FCA Act "). According to the application, the group members whom the applicant represents are 'all academic staff and general staff (other than casual academic staff, casual general staff and TAFE general staff)' employed by UB as at 14 February 2006. 4 The proceedings arise out of allegedly misleading statements that were made by UB to its staff members on 14 December 2005 ("the December 2005 statements"). The applicant alleges that the December 2005 statements contravened s 170WG(2) of the Workplace Relations Act 1996 ("the WR Act "), which provides: "(2) A person must not knowingly make a false or misleading statement to another person with the intention of persuading the other person to make, or not to make, an AWA or ancillary document." The December 2005 statements were made in the context of UB offering Australian Workplace Agreements ("AWAs") to its staff. 5 The final relief sought in the proceeding comprises: (a) the imposition of penalties on UB under s 170VV of the WR Act; (b) a declaration that UB contravened s 170WG(2) of the WR Act; (c) injunctions requiring UB to refrain from knowingly making a false or misleading statement to the group members with the intention of persuading them to make an AWA, and to publish a correcting statement; and (d) damages and interest. 6 The applicant seeks the following interlocutory relief pending the hearing and determination of the application or further order: (a) UB refrain from offering, entering into or taking any step to make, formalise, register or have approved an AWA with a group member; (b) UB refrain from knowingly making a false or misleading statement to the group members and/or each of them with the intention of persuading group members and/or each of them to make an AWA; and (c) UB cease contravening s 170WG(2) by publishing to each group member a statement correcting the false and/or misleading statements referred to in the affidavit of the applicant sworn 14 February 2006. BACKGROUND 7 In recent years, the terms and conditions of employment of staff at UB have been governed by an Enterprise Bargaining Agreement known as the University of Ballarat Enterprise Agreement for Academic and General Staff, 2000-2003 ("the EBA"). The EBA was made pursuant to s 170LJ of the WR Act . Although its nominal expiry date was 30 June 2003, the effect of s 170LX is that it continues to govern the terms and conditions of the employment of relevant employees of UB, other than those employees who have subsequently entered into an operative AWA with UB. 8 Between June 2003 and late 2005, various efforts were made by the NTEU and/or UB to introduce a new agreement that would govern the terms and conditions of employment at UB. Initially, the NTEU unsuccessfully sought to negotiate an agreement pursuant to s 170LJ. Subsequently, UB made two unsuccessful attempts to make an agreement directly with its academic and general employees pursuant to s 170LK. The first of these proposed s 170LK agreements went to a ballot of staff members between 17 and 21 October 2005. The ballot rejected the proposed agreement, with 451 staff members voting against the agreement and 335 for it. The second proposed agreement went to a ballot of staff members between 22 and 23 November 2005. Again, the ballot resulted in a rejection of the agreement, with 401 staff members voting against it and 323 voting in favour of it. In connection with these two ballots, the NTEU and UB distributed a considerable amount of information and other material to affected staff members. This material drew attention to differences that existed between the proposed s 170LK agreements and the provisions of the EBA. 9 After the failure of the second ballot, UB commenced offering AWAs to its staff members. The AWAs were, broadly speaking, modelled on the agreements which had been rejected by the ballots. THE ALLEGEDLY MISLEADING STATEMENTS 10 UB commenced offering AWAs to staff members by way of an email sent by the Vice Chancellor of UB to all staff members on 14 December 2005. The email attached a link by means of which a copy of the proposed general staff AWA could be viewed by staff members. 11 On 14 December 2005, shortly after the dispatch of the Vice Chancellor's email, Mr Wesley Walker on behalf of UB sent an email to all staff concerning the AWAs ("the December 2005 email"). Mr Walker was a consultant to UB in relation to workplace relations. He was heavily engaged in the unsuccessful efforts to introduce a new agreement governing staff terms and conditions in the period between 2003 and late 2005. The December 2005 email was headed 'AWA Questions', and provided as follows: "The University has commenced offering AWAs to staff, as notified in an email earlier today. The NTEU has also started its campaign against AWAs by placing posters around the campus that ask you to consider four questions. Well, I'm happy to answer those questions. Q1. Will you be giving away key employment conditions? A. No you won't. All the important employment conditions including hours of work, span of hours, overtime, shift penalties, HDAs, superannuation, incremental progression, meal breaks, and all leave entitlements remain unchanged in the AWA. Q2. Will an AWA now guarantee you future pay increases? A. Yes it will. Three pay increases are guaranteed. An increase of 4.5%, back-paid to July 2004 is guaranteed for those employees signing AWAs prior to 31 March 2006. An increase of 4.5% in January 2006 is guaranteed. An increase of 4.5% in January 2007 is guaranteed. A fourth increase of 4.5% in January 2008 is contingent as before, but is very likely to be paid in full. Q3. Will you be diminishing your job security? A. No you won't. The AWA has nothing to do with your job security. The AWA is concerned with your terms and conditions of employment, just like the proposed collective enterprise agreement. There is no connection between the AWA and your contract of employment. If you have a continuing appointment now, you will still have your continuing appointment after you sign the AWA. Q4. Will you have the right to return to the collective agreement when the AWA expires? A. Yes you will. After the AWA reaches its expiry date it can be replaced by another AWA with further benefits, or it can roll on in its present form, or you can terminate it and return to the collective agreement that is in place at the time. In addition the question and response below should be of special interest to staff. Q5. What happens if a new enterprise agreement (LK to LJ) is settled next year and has conditions better than those contained in the AWA? The University Council at its meeting on 13 December 2005 passed the following resolution 'That any new HEWRR * Compliant EB Agreement (LK to LJ) be settled with conditions of employment and salary levels that are overall not greater than those specified in the collective AWAs available to general staff and academic staff.' Agreements settled after 31 March 2006 will have the requirement that any payment of back-pay, at the very best, be limited to 1 January 2006. Also an AWA may be varied during its operation if the employee and University agree. I'll be happy to answer any other questions you may have about AWAs, but please be a little patient because of the workload this activity has now generated." The applicant founds his case of misleading statements on this email. 12 The applicant alleges that the statements which appear under Question 1 and Question 3 are false and misleading, and contravene s 170WG(2). The essence of the complaint is that, in respect of important employment issues, namely redundancy, probationary employment, termination and discipline and dispute settling procedures, there are significant differences between the terms and conditions in the proposed AWA when compared with the prevailing terms and conditions in the EBA. I shall not attempt to detail the material differences between the two sets of terms and conditions. They are helpfully summarised in the applicant's outline of written submissions. It is unnecessary to set out the detailed differences because UB concedes that there are differences and that the differences are not insignificant. 13 The applicant contends that the statement which appears in the December 2005 email under Question 1 is false and misleading because the significant differences that do exist make it clear that staff members will in fact lose 'key employment conditions' under the AWA which they would otherwise be entitled to under the EBA. Further, he contends that the significant differences that exist between the two sets of conditions also make it clear that 'important employment conditions' in the EBA have been changed by the proposed AWA. UB acknowledges that changes have been made, but disputes the proposition that the changes involve the loss of key employment conditions or a change in important employment conditions. 14 In relation to what appears under Question 3, the applicant submits that the December 2005 email conveys to academic and general staff that the terms of the AWAs being offered by UB have no impact or bearing on the security of employment of staff members who sign the AWA. The applicant submits that this representation is false and misleading, as the proposed AWAs will substantially diminish a number of EBA protections for employees in respect of how termination of employment or discipline may be affected. In short, the allegation is that the AWAs will make it easier for UB to terminate or discipline academic and general staff, thereby adversely affecting their security of employment. It is put that provisions in an industrial instrument which go to the method of termination of employment directly concern security of employment: see Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Victoria) Limited [1989] HCA 10 ; (1989) 166 CLR 311 at 336 per Gaudron J. 15 Section 170WG(2) is concerned with 'knowingly' false or misleading statements. The applicant submits that this element of the alleged contraventions will be made out because Mr Walker was directly responsible for the negotiation of the EBA, and also had the conduct of the later unsuccessful attempts to introduce a replacement agreement on behalf of UB. As a result, Mr Walker had very detailed knowledge of the terms of the EBA, and the respects in which they differed from the proposed AWAs. In these circumstances, the applicant submits that there is a serious question to be tried that Mr Walker knew all of the essential matters which would go to make up the alleged contravention of s 170WG(2), whether or not Mr Walker perceived that the statements in the December 2005 email were false or misleading: see Yorke v Lucas (1985) 159 CLR 661 at 669 per Gibbs CJ; and King v GIO Australia Holdings Ltd (2001) 184 ALR 98 at 104-106. 16 The applicant contends that the December 2005 statements amounted to continuing representations, which may influence staff members who are contemplating the making of an AWA with UB. Without conceding that there was anything false, misleading or inaccurate about the December 2005 statements, UB disputed the ongoing influence of those statements. UB relies upon an affidavit sworn by Mr Walker on 22 February 2006 which points out that a significant amount of additional information has been provided to staff members since 14 December 2005. 17 On 27 January 2006, UB modified the information on its web page concerning the AWAs. In particular, the section headed 'AWAs: Frequently Asked Questions' was amended to include, inter alia , the following statements: "5. Does the AWA change my employment status? The AWA is concerned with your terms and conditions of employment (just like a collective agreement). Your contract of employment determines whether you are employed on a full-time, part-time, continuing or fixed-term basis. Entering into an AWA does not affect this. So, for example, if your current employment status is as a continuing employee, that status will not change. 6. Will I be giving away key employment conditions if I sign an AWA? Important employment conditions in the current enterprise agreement remain in the general staff AWA. These include hours of work, span of hours, overtime, shift penalties, HDAs, superannuation, incremental progression, meal breaks, all leave entitlements, flexible work arrangements, 48/52 employment, public holidays, annual closedown, broadbanding, make-up pay, and salary packaging. Some of these conditions, for example, overtime, shift penalties and HDAs do not apply for academic staff and have not been included in the academic staff AWA. The current enterprise agreement was drafted 6 years ago and, obviously, provisions in that agreement and the AWAs are not identical. For example: • the dispute resolution procedure in the AWA is the model procedure prescribed by the Employment Advocate; • the AWA does not include appeals or review committees that review decisions made in cases of redundancy, unsatisfactory performance, misconduct and academic probation. The AWA does include a process for appeals in the case of termination of employment. If you have a concern about a particular entitlement that is important to you, you should raise that concern with Human Resources, who will explain any difference between the AWA and the enterprise agreement. ... 8. Will I have the right to return to the collective agreement when the AWA expires? After the AWA reaches its nominal expiry date it can be replaced by another AWA, or it can roll on in its present form until it is replaced, or it can be terminated according to the provisions in the AWA and/or the legislation. If you and the University agree, your AWA can be terminated at any time. What happens after an AWA is terminated depends on whether it is a pre-reform AWA , or an AWA made after the amendments to the Workplace Relations Act come into force (expected to be in March 2006). A pre-reform AWA is one that is made before the amended legislation comes into force. If you have a pre-reform AWA and it is terminated at any time, you will revert to the collective agreement that is in place at that time. An AWA that is made after the amended legislation comes into force (ie a post-reform AWA) can be terminated on 90 days notice by you, your bargaining agent (which might be the union), or the University after the AWA reaches its nominal expiry date. Until the terminated AWA is replaced by another AWA or a collective agreement made after the date of termination you will revert to the Fair Pay and Conditions Standards set by the Australian Fair Pay Commission, and to protected award conditions. In addition, the University may give an undertaking as to the terms and conditions of employment that will cover you if the University terminates the AWA after it expires." 18 The applicant submitted that this information did not correct all of the misstatements in the December 2005 email, and it was simply posted on UB's web page. In contrast, the December 2005 statements were sent by email to all staff members. 19 Mr Walker deposes that information sessions concerning the proposed AWAs were held with academic and general staff in late December 2005 and in January and February 2006. At these sessions, Mr Walker says that he explained the workplace disputes clause and the differences between the procedure put in place by the AWA when compared with the EBA. In addition, Mr Walker deposes that if any staff member was misled by the December 2005 email, then the information sessions conducted by UB and the changes to the 'AWAs: Frequently Asked Questions' web page would have made clear to them that a number of conditions of employment, including those relating to managing under-performance, discipline for misconduct and serious misconduct, redundancy and the resolution of workplace disputes would be altered by the AWA. 20 UB also relied upon an affidavit by Ms Penelope Faith Irish, a manager employed by UB in the area of accommodation services. She deposes that she signed an AWA after attending an information session with Mr Walker. She refers to differences between the EBA and the AWA in the area of redundancy entitlements, redundancy review processes, dispute resolution processes and the process to manage unsatisfactory performance and allegations of misconduct, but considered those issues to be peripheral and not important to her personally compared with other matters covered by the AWA. 21 UB also relies upon the fact that since 14 December 2005, the NTEU has provided extensive information to staff members drawing their attention to differences between the proposed AWAs and the EBA. In his submissions, Dr Jessup QC, senior counsel for UB, recognised that information published by the NTEU may not have the same authority or significance as correcting information that is published by UB. GENERAL PRINCIPLES GOVERNING INTERLOCUTORY INJUNCTIONS 22 The general principles governing the grant of interlocutory injunctions are well settled. The Court must be satisfied that there is both a serious question to be tried in the principal proceeding, and that the balance of convenience favours of the grant of an injunction: see Beecham Group Limited v Bristol Laboratories Pty Limited [1968] HCA 1 ; (1968) 118 CLR 618; American Cyanamid Co v Ethicon Ltd [1975] UKHL 1 ; [1975] AC 396; Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1983) 57 ALJR 425; Tableland Peanuts Pty Ltd v The Peanut Marketing Board (1984) 58 ALJR 283; Epitoma Pty Ltd v Australasian Meat Industry Employees Union (1984) 3 FCR 55; and Patrick Stevedores Operations (No 2) Proprietary Limited v Maritime Union of Australia [1998] HCA 30 ; (1998) 195 CLR 1 (" Patrick Stevedores "). These two questions are not considered in isolation from each other; the strength or weakness of the claim will have a bearing on what is required by way of balance of convenience: see Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 at 472. 23 The High Court has recently stressed in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 ; (2001) 208 CLR 199 (" ABC ") that an interlocutory injunction is granted in aid of some legal or equitable right to final relief: see Gleeson CJ at 217 [11]-[12] and 218 [16]; Gaudron J at 232 [60]; and Gummow and Hayne JJ at 240-241 [88]-[91] and 248 [105]. Gummow and Hayne JJ said that the basic proposition where interlocutory injunctive relief is sought is that it is necessary to identify the legal (which may be statutory) or equitable rights which are to be determined at trial and in respect of which there is sought final relief which may or may not be injunctive in nature (at 241 [91]). I leave aside for the moment, as the High Court did, cases where interlocutory injunctive relief is sought in some special statutory jurisdiction, and cases where the integrity of the judicial process is protected by forms of relief such as the Mareva order or anti-suit injunctions. 24 The purpose ordinarily served by an interlocutory injunction is to preserve the status quo. The way in which Gleeson CJ put it in ABC was that the justice and convenience of imposing an interim restraint, pending the hearing of the final action, if it exists, lies in the need to prevent the practical destruction of the right that is sought to be vindicated by the proceedings before there has been an opportunity to have its existence finally established (at 217 [12]). This formulation may not be apt in every case, but it draws attention to the fact that there must be an appropriate connection between the form of interim relief that is sought, the danger or damage that is sought to be averted by the interim relief, and the final relief which is claimed in the action. 25 The Court will also consider whether damages are an adequate remedy. This can be undertaken separately from an examination of the balance of convenience: see, for example, Castlemaine Tooheys Limited v South Australia [1986] HCA 58 ; (1986) 161 CLR 148. But it can also be undertaken as part of the assessment of the balance of convenience, and this is, perhaps, the more common approach. 26 One final and perhaps obvious point that bears repeating is that the Court does not embark on anything resembling a trial of the action when it deals with an application for interlocutory relief. Ordinarily, the Court will not attempt to reach any conclusion as to the facts or matters in dispute, beyond satisfying itself as to whether there is a serious question to be tried, or about other matters that may bear on the balance of convenience or discretionary considerations. SERIOUS QUESTION TO BE TRIED 27 On the material before me, I have concluded that there is a serious question to be tried as to whether the December 2005 email contained statements which were knowingly false or misleading, and which were made to staff members of UB with the intention of persuading them to make an AWA with UB. In reaching this conclusion, I have taken into account the significant differences that exist between the EBA and the proposed AWAs, and evidence indicating that Mr Walker has a detailed knowledge of both instruments. 28 This conclusion, however, does not end the inquiry, as UB challenges the applicant's legal entitlement to relief on other grounds. Dr Jessup submitted that the applicant has not established that the interim relief he seeks is properly connected with any final relief to which the applicant has a legal or equitable right. In this context, Dr Jessup relies upon the width of the claims for interlocutory relief. Despite criticism of the terms of relief, the applicant did not seek to narrow the form of the interlocutory injunctions it seeks. As to the first order, Dr Jessup submitted that s 170WG(2) would not support an interim injunction restraining UB from taking any further step to enter into an AWA with a group member. This form of relief, he said, was not directed at restraining the making of, or containing or ameliorating the consequences of, allegedly misleading statements, and would go beyond the relief that could be granted at final trial. Dr Jessup criticised the second order on the grounds that it was expressed in broad and sweeping terms, and no Court would issue a restraining order in terms that UB must refrain from making false or misleading statements to group members. Such an order would do no more than replicate the general terms of s 170WG(2). Dr Jessup criticised the third injunctive order that was sought on the ground that a mandatory order requiring UB to correct the false or misleading statements in the December 2005 email would prejudge the outcome of the case. In my view, there is some force in these criticisms. 29 Next, Dr Jessup submitted that the applicant cannot seek an interim order preventing UB from making an AWA with him in circumstances where the applicant asserts that he has not been misled and will not in any event make an AWA. In Dr Jessup's submission, the applicant is not seeking an interlocutory remedy for himself, but is trying to do so for other members of the group. For those members of the group who have already made an AWA, and for those like the applicant who do not intend to make an AWA, it is difficult to say that the interlocutory relief that is being sought is in aid of final relief. The form of relief that is sought is arguably relevant only to those members of the group who have not yet made an AWA, but who may wish to do so. 30 An applicant in a representative proceeding must himself or herself have standing to sue a particular respondent: see Symington v Hoechst Schering Agrevo Pty Ltd (1997) 78 FCR 164. There is no doubt that the question whether conduct challenged under the Trade Practices Act 1974 (Cth) was misleading or deceptive can warrant determination on a representative basis, notwithstanding the fact that inducement might be an element of each individuals cause of action: see King v GIO Australia Holdings Ltd [2000] FCA 1543 at [13] - [14] . The applicant submitted that a representative action can be brought seeking final declarations and final injunctions in respect of a contravention of s 170WG(2). 31 In Schanka v Employment National (Administration) Pty Ltd [2000] FCA 202 ; (2000) 97 FCR 186, the Full Court (comprised of Ryan, Lee and Branson JJ) considered objections to standing in respect of a proceeding that alleged contravention of s 170WG(1) of the WR Act . The proceeding in question was a representative proceeding under Pt IVA of the FCA Act . The Full Court rejected an argument that a penalty could not be imposed under s 170VV in respect of a contravention of s 170WG(1) unless the conduct constituting the duress brought about the making of an AWA. The Full Court said that such a construction should be rejected because it would allow even the most reprehensible conduct engaged in by a party in relation to a proposed AWA to go unexamined by a Court if no concluded agreement were to come into existence. On its proper construction the WR Act supported a wider availability of the remedy afforded by s 170VV. In addressing this issue, the Full Court also considered whether the trial judge, Moore J, had erred in adding an individual, Mr James Burns, as an additional applicant. The alleged error was said to have arisen because Mr Burns had declined the offer of employment and so had never become a party to an AWA. The Full Court construed the reference in s 170VV(3) to 'a party to the AWA or ancillary document' so as to include a party to negotiations. 32 It follows therefore that an action for penalties and injunctive relied under ss 170VV and 170VZ can properly be constituted as a representative action: see Finance Sector Union of Australia v Commonwealth Bank of Australia [1999] FCA 1250 ; (1999) 94 FCR 179. I also note that s 33C of the FCA Act provides that a representative proceeding may be commenced whether or not the relief sought is the same for each person represented. And I entirely accept the proposition that nothing in s 170VZ excludes this Court's powers under s 23 of the FCA Act to grant an interim or interlocutory injunction in an appropriate case: see Patrick Stevedores at 29 [27] per Brennan CJ; and Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd [2000] FCA 1760 ; (2000) 104 FCR 80 at 103 [96] . Nonetheless, it may be a different question whether an applicant can bring an application for interlocutory relief in a representative proceeding, where the applicant has no individual entitlement to that relief, but the relief is sought on the basis that it may be relevant and necessary for other members of the group. 33 Dr Jessup's submissions may also raise issues about the identification of the group members. In this case, the application alleges that a common issue of law and fact arises, namely whether the December 2005 statements made on behalf of UB were knowingly false or misleading with the intention of persuading the academic and general staff to make the AWA, within the meaning of s 170WG(2) of the WR Act . In respect of these issues, the group may be composed of three different classes of members: first, those like the applicant, who have not signed the AWA and do not intend to do so; second, those who have not signed the AWA and who may wish to do so; and third those who have signed the AWA. The affected groups or sub-groups may need to be defined more precisely: ss 33Q and 33ZB of the FCA Act . 34 I have not had the benefit of full argument on any of the issues raised by these submissions. I do not propose to express from views about the submissions discussed in [28] to [29] above. In all the circumstances, I am prepared to proceed on the basis that the applicant has demonstrated a serious question to be tried as to its entitlement to relief at trial. In view of the matters relied upon by Dr Jessup, however, I consider that the case that has been demonstrated by the applicant at this stage is towards the weaker end of the spectrum. As will appear it is unnecessary for me to be more definitive, as I have reached the conclusion that the application for interim relief should be refused on other grounds. BREACH OF AN IMPLIED TERM OF TRUST AND CONVENIENCE 35 The applicant's outline of written submissions contains an allegation that an implied term of trust and confidence should be implied into each group member's contract of employment with UB: see generally Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144; Thomson v Orica Australia Pty Ltd (2002) 116 IR 186 ; and Heptonstall v Gaskin (No 2) (2005) 138 IR 103. The outline further alleges that there is a serious question to be tried that UB breached this implied term by recklessly or knowingly making false or misleading statements to its staff members concerning the terms and conditions of employment which would apply to them if they entered into the proposed AWAs. 36 The application by which these proceedings was instituted does not contain any reference to these allegations. Nor is it mentioned in any of the affidavits that were filed by the applicant in support of its application for interlocutory relief. The first notice that UB had of these allegations came when the applicant's counsel handed up the outline of written submissions at the commencement of the interlocutory hearing. In these circumstances, Dr Jessup said that he did not intend to address any submissions to these allegations. 37 I am not satisfied at this stage that there is a serious question to be tried that UB breached any such implied contractual term. The basic case that has been put is simply that Mr Walker made statements that were false and misleading in circumstances which gave rise to a contravention of s 170WG(2). 38 In view of the lack of notice of these allegations to the respondent, and the lack of evidence directed to the breach of the alleged implied term, I do not propose to discuss these allegations any further. I note as well that the applicant hardly addressed any submissions to the alleged breach of implied term. BALANCE OF CONVENIENCE 39 The grant of an interlocutory injunction is discretionary. In exercising that discretion, the Court will closely examine the balance of convenience. This involves weighing up the extent of any impending prejudice or inconvenience to the applicant if injunctive relief is not granted pending trial, and weighing that against the extent of any hardship that the grant of the injunction may cause the respondent. It also needs to be borne in mind that the purpose of an interlocutory injunction is to preserve the status quo, and that the interlocutory injunction is granted so as to preserve or protect the legal or equitable rights that are sought to be vindicated in the proceedings. One relevant inquiry for the Court will be whether irreparable injury which is not compensable in damages will result if relief is not granted. 40 The applicant submits that irreparable harm will occur if injunctive relief is not granted. He submits that the Court is not empowered to revoke an AWA even if it is made in reliance on false or misleading statements made in contravention of s 170WG(2). This is said to follow from the fact that an AWA, once filed, takes on a statutory character. Section 170VM sets out the circumstances when an AWA may be terminated, and the applicant points out that none of them apply to the present circumstances. Further, the applicant submits that the Court is not empowered to make an order for damages in respect of any loss suffered in consequence of a breach of s 170WG(2). UB also submitted that the Court is not empowered to set aside an AWA after it has been filed, and takes on a statutory character. 41 The applicant's case for interlocutory relief was based on the premise that the December 2005 statements were continuing to operate, and might mislead staff members into making an AWA between the time of the hearing and the determination of the proceeding. The interim relief is not relevant to those members of the group who have already made AWAs, or those members of the group who, like the applicant, possess full information and do not intend to make an AWA. 42 In my opinion, the legitimate purpose of an interlocutory injunction at this point, pending trial, is to eliminate or mitigate the risk that staff members of UB might be misled by the December 2005 statements into making an AWA if no relief is granted. 43 The starting point, therefore, is to consider what relief, if any, is just, convenient or necessary at this point to address the risk that the December 2005 statements are continuing to operate and may influence staff members to enter into an AWA with UB. 44 UB has submitted that the continuing influence of the December 2005 statements is likely to be minor, if they have any continuing effect at all. UB submits that the academic community at UB is generally well informed about the differences between the EBA and the proposed AWAs. Moreover, UB submits that the December 2005 statements have been overtaken by a substantial amount of subsequent information. While there is some force in these submissions, there must remain a risk that the December 2005 statements may have some ongoing influence on some staff members. 45 UB has submitted that any case which might otherwise have existed for the grant of interim relief is met by UB's preparedness to offer an undertaking to the Court. A form of undertaking was provided to me during the course of the hearing. In essence, the undertaking is to the effect that UB will make a further extensive clarification statement to all staff members identifying the differences between the proposed AWA and the EBA. Further, UB said that it would undertake to refrain from entering into AWAs with its staff members until the expiry of a period of seven days after the publication of the new information to its staff members. By this means, UB submitted that any risk that staff members might enter into an AWA on the basis of misleading or false statements would be removed. 46 At the time of the hearing of the interlocutory application, the applicant and his counsel had not had a full opportunity of considering the terms of the proposed undertakings. I directed that the parties consult with each other about the terms of the proposed undertakings. I further directed that UB submit a final form of the proposed undertakings after a process of consultation had taken place. UB has now submitted a final form of the proposed undertakings. I have been informed that the parties have agreed upon the terms of the clarification statement, but no agreement was reached about other aspects of the proposed undertakings. I shall not set the proposed undertakings in these reasons, as they are recorded in the orders which I propose to make. 47 In my opinion, the undertakings proposed by UB are a complete answer to the application for interim relief. The proposed undertakings remove any real risk that staff members will be induced to enter into AWAs between the date of my order and the date of trial as a result of the allegedly misleading statements that were made in December 2005. 48 In the light of the undertakings proffered by UB, I consider that the hardship that would be occasioned by the grant of wide interlocutory injunctions of the kind sought by the applicant outweighs any prejudice or inconvenience to the applicant and other group members that would be occasioned by withholding relief. The undertakings afford the best means of preserving the status quo pending trial, and address the risk that the December 2005 statements may have a continuing influence on staff members. In short, the undertakings produce an outcome that is both just and convenient. 49 A number of other factors support the conclusion that it is neither just nor convenient to grant the interlocutory relief sought by the applicant. Some of them are discretionary factors. 50 First, the relief sought by the applicant is cast in extremely wide terms and arguably goes beyond relief that could be legitimately sought in this proceeding. 51 Secondly, the relief sought by the applicant would seriously impinge upon the rights of third parties. An injunction restraining UB from entering into an AWA with its staff members pending the trial of this action would seriously affect the rights of those staff members, including their entitlement to back-pay. The applicant submits that the risk that such employees would lose their entitlement to back-pay if AWAs cannot be concluded by 31 March 2006 is an arbitrary limitation that was imposed by UB, and it can be varied at UB's discretion. I will assume that this is so. Nonetheless, it is relevant to the exercise of my discretion that the form of relief that has been sought will significantly affect the rights of other staff members. Their rights will be affected if the injunction were to go, whether or not the employees have fully informed themselves about the differences between the EBA and the proposed AWA. Employees may be so affected even if they opt out of the represented group. If there is another alternative that protects staff members from the risk that they will be misled by the December 2005 statements, such as that offered by the undertakings, it is a relevant consideration that the more drastic alternative proposed by the applicant will affect the rights of third parties. 52 The applicant submits that the position of third parties will be protected by its undertaking as to damages. The usual form of undertaking in this Court extends beyond the damages which may be suffered by the respondent consequent upon the interlocutory order, and includes damages that may be suffered by other persons. In this case, the applicant has proffered his own undertaking jointly with an undertaking by the NTEU. I accept that a joint undertaking as to damages by the applicant and the NTEU is one of substance. However, I do not consider that the availability of the undertaking can justify the making of an interim order that will seriously affect third party rights, in circumstances where there is another alternative that is both just and convenient and which will not adversely affect third party rights. 53 In this case, I would not discount the significance of the impact on third party rights in the way that Finkelstein J did in Finance Sector Union v Commonwealth Bank of Australia (2000) 106 IR 139 at [57]. CONCLUSION 54 For the foregoing reasons, I propose to dismiss the application for interlocutory relief. I do so upon the basis of the undertakings proffered to the Court by UB. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Young. Associate: Dated: 24 February 2006 Counsel for the Applicant: Mr K. Farouque Solicitors for the Applicant: Maurice Blackburn Cashman Counsel for the Respondent: Dr C. Jessup QC and Mr C. O'Grady Solicitors for the Respondent: Phillips Fox Date of Hearing: 22 February 2006 Date of Judgment: 24 February 2006 CLARIFICATION STATEMENT - ACADEMIC STAFF Set out below is a statement by the University of Ballarat ( University ) to all staff.


case_title: King v GIO Australia Holdings Ltd (2001) 184 ALR 98


case_title: Beecham Group Limited v Bristol Laboratories Pty Limited [1968] HCA 1 ; (1968) 118 CLR 618


case_title: American Cyanamid Co v Ethicon Ltd [1975] UKHL 1 ; [1975] AC 396


case_title: Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1983) 57 ALJR 425


case_title: Tableland Peanuts Pty Ltd v The Peanut Marketing Board (1984) 58 ALJR 283


case_title: Epitoma Pty Ltd v Australasian Meat Industry Employees Union (1984) 3 FCR 55


case_title: Patrick Stevedores Operations (No 2) Proprietary Limited v Maritime Union of Australia [1998] HCA 30 ; (1998) 195 CLR 1


case_title: Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464


case_title: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 ; (2001) 208 CLR 199


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


case_title: Symington v Hoechst Schering Agrevo Pty Ltd (1997) 78 FCR 164


case_title: King v GIO Australia Holdings Ltd [2000] FCA 1543


case_title: Schanka v Employment National (Administration) Pty Ltd [2000] FCA 202 ; (2000) 97 FCR 186


case_title: Finance Sector Union of Australia v Commonwealth Bank of Australia [1999] FCA 1250 ; (1999) 94 FCR 179


case_title: Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd [2000] FCA 1760 ; (2000) 104 FCR 80


case_title: Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144


case_title: Thomson v Orica Australia Pty Ltd (2002) 116 IR 186


case_title: Heptonstall v Gaskin (No 2) (2005) 138 IR 103


case_title: Finance Sector Union v Commonwealth Bank of Australia (2000) 106 IR 139


case_text: The Tribunal accepted the appellant's claims but found on the basis of independent country information, and the appellant's own evidence, that his fears of further harm amounting to persecution for reason of his race in Indonesia were not well founded. The Tribunal's findings were open for the reasons it provided. The choice and interpretation of country information is a factual matter for the Tribunal alone: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] - [13] ; Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 ; (2005) 216 ALR 1 at [8] per Gleeson CJ; NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at [81] , [84]. The Court cannot review the merits of the Tribunal's decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272, and there is no error of law in the Tribunal making a wrong finding of fact: Abebe v The Commonwealth of Australia [1999] HCA 14 ; (1999) 197 CLR 510 at [137] .


case_title: Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 ; (2005) 216 ALR 1


case_title: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259


case_text: As regards to the first ground, the Federal Magistrate correctly noted that country information falls within s 424A(3)(a) of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572 at [64] - [74] , [112]-[138]; WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 at [44] - [46] ; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [7] - [30] ; VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [11] - [16] . His Honour also correctly noted that procedural fairness did not apply to the Tribunal because of s 422B of the Act: see Minister for Immigration and Multicultural Affairs v Lat [2006] FCAFC 61 ; (2006) 151 FCR 214 at [66] ; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [7] - [8] ; NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at [85] . Finally, his Honour noted that the Tribunal had referred to the same country information as was in the delegate's decision, so there could be no breach of procedural fairness in any event. For these reasons, his Honour correctly rejected the first ground.


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572


case_title: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10


case_text: The Tribunal accepted the appellant's claims but found on the basis of independent country information, and the appellant's own evidence, that his fears of further harm amounting to persecution for reason of his race in Indonesia were not well founded. The Tribunal's findings were open for the reasons it provided. The choice and interpretation of country information is a factual matter for the Tribunal alone: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] - [13] ; Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 ; (2005) 216 ALR 1 at [8] per Gleeson CJ; NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at [81] , [84]. The Court cannot review the merits of the Tribunal's decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272, and there is no error of law in the Tribunal making a wrong finding of fact: Abebe v The Commonwealth of Australia [1999] HCA 14 ; (1999) 197 CLR 510 at [137] . 22 As regards to the first ground, the Federal Magistrate correctly noted that country information falls within s 424A(3)(a) of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572 at [64] - [74] , [112]-[138]; WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 at [44] - [46] ; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [7] - [30] ; VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [11] - [16] . His Honour also correctly noted that procedural fairness did not apply to the Tribunal because of s 422B of the Act: see Minister for Immigration and Multicultural Affairs v Lat [2006] FCAFC 61 ; (2006) 151 FCR 214 at [66] ; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [7] - [8] ; NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at [85] . Finally, his Honour noted that the Tribunal had referred to the same country information as was in the delegate's decision, so there could be no breach of procedural fairness in any event. For these reasons, his Honour correctly rejected the first ground.


case_title: QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92


case_title: SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62


case_title: VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178


case_title: WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330